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TMI Blog2023 (4) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... to deductTDS u/s 192 - HELD THAT:- As observed this appeal is maintainable by an assessee , however, the aforesaid discussion establish that appellant is neither assessee nor assessee in default . Therefore, the appeal preferred by him, against the order dated 07.01.2021, mentioned in form 36 as review order u./s 263 of the Income Tax Act, 1961 is not maintainable. Even otherwise on merits it can be observed that section 192 of the Act provides deduction of tax at the time of payment . However, in the case in hand admittedly there was no payment of the salary etc, which was foregone as per terms of settlement in the mediation proceedings. Consequently, the appeal is dismissed. - ITA No. 185/Del/2021 - - - Dated:- 12-4-2023 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... encashment, Gratuity dues, Monthly pension, Commuted value of pension of which on the basis of this settlement agreement Rs. 22,01,608/- was released in favour of the bank and 24,68,458/- was released in favour of the employee/ appellant. 2.2 On the amount Rs. 22,01,608/- being forgone by the appellant, as per the terms of settlement, the entries of deduction made by the bank towards TDS of Rs. 11,06,499/- was also reversed. 2.3 Thereafter, the appellant filed a Civil Miscellaneous Application no. 27897/ 2015 in ILPA No. 731/2015 before Hon ble High Court seeking release of TDS amount Rs. 11,06,499/- upon the foregone amount on which Hon ble High Court was pleased to pass following order :- This court is of the opinion that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order of ld. AO, no merit was found and the same was dismissed as non-maintainable. 5. The assessee has raised following grounds :- 1. Because the Ld CIT(TDS) has in its order dated 07.01.2021 mentioned that the disputed amount of Rs 11,06,499 which was retained by bank as TDS was part of arrears of wages of the Appellant. Further stated that the Respondent Bank had deposited the amount of Rs 22,01,608/- with the Hon ble High Court Registry on account of Arrears of Wages . Consequently, as per law the Respondent Bank was to deposit the statutory dues by way of TDS for it arose on account of Arrears of Salary/Wages of the Appellant. Hence, the order of Ld CIT in this case is not valid and tenable as per law, and as such, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modify its nature/essence since income had already accrued in the form of salary, wages etc. 5. Because neither the Ld DCIT nor Ld CIT(TDS), in their respective orders, have ever discussed the position of Section 15 of the Income Tax Act, 1961. Hence, the proper course of action is not followed by the Ld. DCIT/CIT. As such, the orders may please be quashed. 6. Because the Settlement Agreement dated 05.08.14 was entered into b/w the Appellant and Respondent Bank, and stated that the amount of Rs 22,01,608/- along with accrued interest was to be released in favour of First Party (i.e. OBC Bank) and that LPA No 731/2013 shall stand withdrawn. 7. Because both the Ld DCIT and Ld CIT(TDS), failed to acknowledge the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.1 On behalf of the appellant it was submitted that if a part of salary was foregone on the basis of settlement agreement, after it had become accrued, the TDS was payable. It was submitted that when the waiver of accrued income is not based on commercial justification such income is assessable to tax and the written submissions dated 20.02.2023 with reference has been made to judgments in CIT vs. Mahar Singh 90 ITR 219; CIT vs. Shiv Prakash 222 ITR 583 SC and CIT vs. Hindustan Motors 202 ITR 839. 7. Ld. DR however submitted that the assessee is in fact coming in appeal for the benefit of Revenue. However, as to applicability of the provisions of TDS he admitted that there is no liability to deduct TDS on accrual basis and TDS has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that notice was issued to deductor assessee and thereafter on the basis of reply of the bank which was considered to be assessee in those proceedings. Ld. DCIT, Circular 76(1), New Delhi concluded that there was no default regarding TDS and accordingly concluded the proceedings u/s 201(1). 11. Now, this order is appealable u/s 246(1)(i) r.w.s. 146A(1)(ha) before the Commissioner of Appeals. However, such appeal can be filed by assessee or any deductor or any collector . The appellant happens to be none of them. 11.1 It appears that therefore, appellant approached Ld. CIT(TDS)-2 u/s 263 of the Act which was disposed of as non-maintainable. An appeal against order u/s 263 is maintainable before the Tribunal by virtue of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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