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TMI Blog2023 (4) TMI 1102X X X X Extracts X X X X X X X X Extracts X X X X ..... ven on consideration of the circumstantial evidences, the difference between the amount of the invoices raised and the amount received by the assessee from the party is exactly matching with the amount of TDS. Once, the assessee has discharged the onus imposed on her, the onus shifted upon the revenue to disprove the contention of the assessee based on the documentary evidence. However, we find that the Revenue despite of having enough powers under the statute failed to disprove the contention of the assessee as wrong based on the cogent information. Revenue cannot absolve from its duty merely on the reasoning that the other party i.e. M/s Jain Infraproject Ltd. is not responding to the notices issued upon it. In view of the above, we hold that the assessee is entitled for the benefit of the provisions specified under section 205 of the Act. Hence, the ground of appeal of the assessee is allowed. - ITA Nos. 1838 & 176/AHD/2019 - - - Dated:- 29-3-2023 - SHRI WASEEM AHMED, ACCOUNTANT MEMBER And Ms MADHUMITA ROY, JUDICIAL MEMBER For the Assessee : Shri S.N. Soparkar, Sr. Advocate with Shri Parin Shah, A.R For the Revenue : Shri Ravindra, Sr.D.R ORDER PER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant by denying credit of taxes. 3. The only effective issue raised by the assessee is that the learned CIT(A) erred in confirming the demand order of the AO without considering the provision of section 205 of the Act. 4. At the outset, we note that this is second round of litigation before us. The background of case is that the assessee is an individual and engaged in the profession of service provider. During the year under consideration, the assessee provided services of SAP implementation to one of her client namely M/s Jain Infraproject Ltd a Kolkata based public company. The assessee raised 3 invoices of Rs. 1,10,30,000/- each against the services provided. As per the assessee the impugned client deducted tax at source for Rs. 33,09,000/- under the provision of section 194J of the Act. Accordingly, she claimed credit of such tax deduction in the return of income filed for the year under consideration. 5. The AO during the assessment proceedings found that no such tax was deposited by the impugned client. Therefore, the AO denied the benefit of tax credit of Rs. 33,09,000/- and accordingly, the demand against the assessee was raised. On appeal by the assessee, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings found that the assessee furnished same document which were already available on record in the first round of litigation. The AO further wrote a letter to Pr.DIT (Inv) Kolkata to make inquiry from M/s Jain Infra-Project Ltd to find out whether the impugned party deducted tax at source on the bill raised by the assessee or not. If deducted, then whether the same was deposited to the Government account or not. The DDIT(Inv.), Unit- 6 Kolkata in report dated 22-11-2018 submitted that in this regard notice under section 131(1) was issued and served to the said party but no response was received. Likewise, on request of DDIT(Inv.), Unit-6 Kolkata, a notice for inquiry in this regard was also issued by DCIT, Circle-2 TDS Kolkata but the same was also not responded by the party M/s Jain Infraproject Ltd. Therefore, the AO in absence of cross examination from the alleged tax deductor again denied the credit of TDS to the assessee. 8. On appeal by the assesse, the learned CIT(A) confirmed the order of the AO by observing as under: I have examined the action taken by the AO and the AO has taken possible steps to verify the issue as per directions of Hon'ble ITAT. The fact re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties and perused the materials available on record. It is the second round of litigation before us. The ITAT in first round of litigation observed that as per the provision of section 205 of the Act, if the payer deducts tax at source on the amount of income paid to the assessee, then no tax demand can be raised against the assessee to the extent of tax deducted on such income. However, the correspondence with regard to deduction of tax at source between assessee and impugned party M/s Jain Infraproject Ltd on the basis of which assessee is claiming the credit of TDS has nowhere been cross verified by the Revenue authorities. On the other hand, the revenue without having any cogent evidence held that tax was not deducted at source. Therefore, the Hon ble bench was pleased to set aside the issue to the file of the AO with direction to verify whether on the alleged payment received by the assessee was subjected to the deduction of tax, if yes then verify whether the payer has deducted the tax or not. If it is established that payer has deducted the tax, then the ld. Assessing Officer shall follow the procedures laid down in Section 205 of the Income-tax Act. 12.1 However, we find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10,30,000 11-01-12 1,10,30,000 04-01-13 1,66,85,400 Total (A) 4,97,75,400 Deatil of payment Received Date Mode Amount 24-09-11 RTGS 5,00,000 04-11-11 RTGS 94,27,000 25-01-12 RTGS 50,00,000 15-03-12 RTGS 98,54,000 18-01-13 Bank Guarantee 2,00,00,000 Total (B) 4,47,81,000 Difference between A B 49,94,400 TDS amount @ 10% 49,77,540 Amount still pending W/o 16,860 12.2 Once, the assessee has di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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