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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 ..... of the Act by the DCIT, 76(1), New Delhi, (in short for convenience referred here in after as 'Ld. AO' 2. The facts in brief are that the appellant was working as Ex-Chief Manager, Oriental Bank of Commerce and the appellant was removed from the services of the Bank vide Disciplinary Proceedings order dated 27.06.2003. He had challenged the same by way of a writ petition no. 9308/2004 before Hon'ble Delhi High Court and vide judgment dated 21.08.2013, the Hon'ble High Court was pleased to set aside the removal from service order and modified the punishment. Hon'ble High Court has also entitled to pension, gratuity and leave encashment. 2.1 The Bank preferred appeal against order dated 21.08.2013. Thereafter, the matter was referred for me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in accordance with law. " 2.4. Accordingly, the appellant filed the grievance before Ld. AO Deputy Commissioner of Income Tax-76(1), New Delhi. The bank/assessee was issued notice and it submitted that the amount of Rs. 11,06,900/- was part of arrears of wages which was foregone by the complainant as per settlement agreement dated 05.08.2014. As the amount of wages was not payable to the appellant question of deduction and payment of TDS does not arise. 3. The ld. AO taking into consideration Section 192 of the Act observed that TDS is required to be deducted at the time of actual payment of salary only and as the amount of wages was not payable under the settlement agreement. There is no liability of deducting TDS. Thus, in the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of amount deposited as TDS". Hence, the proper course of action is not followed by the Ld DCIT while completing the proceedings u/s 201(1)/201(1A). As such, the order may please be quashed. 3. Because both the Ld DCIT and Ld CIT(TDS), failed to observe the fact that the Respondent Bank violated the Hon'ble Delhi High Court order dt 01.02.2016, by reversing the TDS entry on its own accord and whims, without any law to this effect. 4. Because Section 192(1) of the Income Tax Act is to 5e read with Section 15 of the Act which defines 'salary'. That Section 15 envisages- 'any salary due from an employer/former employer to an assessee in the previous year whether paid or not'. Thus, salary income is chargeable to tax either on due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come in a settlement is considered as application of income. 9. Because the judgment delivered by Hon'ble Delhi High Court dated 21.08.2013 explicitly mentioned in the last para that: 'The petitioner is entitled to pension, wages regarding earned leave and gratuity as a consequence of this order, thereby meaning the said wages "accrued" to the Appellant herein'. 10. Because it is the settled law and there are a catena of judgments to this effect that, any income which is foregone/given up, after it has accrued or arisen to the assessee must be taxed (present case). However if salary, wages are foregone before it accrues, it can't be taxed because of the act of surrender of accrual of income. 11. That the appellant craves leave to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey is payable under this Act, and includes- (a) every person in respect of whom any proceeding under this Act has been taken for the assessment of his income or of the income of any other person in respect of which he is assessable, or of the loss sustained by him or by such other person, or of the amount of refund due to him or to such other person; (b) every person who is deemed to be an assessee under any provision of this Act; (c) every person who is deemed to be an assessee in default under any provision of this Act; 10. In the case in hand the facts show that the appellant had approached the lower Tax Authorities in pursuance of order dated 01.02.2016 of Hon'ble High Court. The Ld. DCIT-76(1), New Delhi had considered the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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