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TMI Blog2024 (5) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... ll not be called upon to pay the tax himself to the extent to which tax has been deducted from that income and its applicability is not depending upon the credit for tax being given under Section 199 of the I.T. Act. Thereby, the department shall not deny the benefit of tax deducted at source by the employer during the relevant financial years to the petitioner. The credit of the tax shall be given to the petitioner and if in the interregnum, any recovery or adjustment is made by the department, the petitioner shall be entitled to the refund, with the statutory interest, within eight weeks from the date of receipt of the copy of this judgment. - THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR. JUSTICE G. SATAPATHY For the Petitioner : Mr. R.P. Kar, Sr. Advocate along with M/s. A.K. Dash and S.S. Mohapatra, Advocates For the opp. Parties : Mr. S.C. Mohanty, Sr. Standing Counsel, Income Tax Department [O.Ps. No.1-5] ORDER DR. B.R. SARANGI,J. The petitioner, by means of this writ petition, challenges inaction of opposite party no.4 in granting credit of the tax deducted at source amounting to Rs.2,68,733/- under Section 143(1)(c) of the Income Tax Act, 1961 for the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Rs.2,68,733/- deducted at source by the deductor/employer during the assessment year 2013-14 along with interest of Rs.55,417/- levied under Section 234B and 234C of the I.T. Act in total determined the amount of Rs.3,24,150/- under Section 143(1)(c) of the I.T. Act. Hence, this writ petition. 3. Mr. R.P. Kar, learned Senior Counsel appearing along with Mr. A.K. Dash, learned counsel for the petitioner vehemently contended that since the tax has been deducted at source by the deductor-opposite party no.6 under Section 192 of the I.T. Act during the assessment year 2013-14, so far as petitioner is concerned in PAN-AHNPK0207H for the period from April 2012 to October 2012, a total amount of Rs. 5,90,112/-, the petitioner is entitled to get credit of tax deducted at source of the entire amount. He has also made reference to the salary statement, wherein the income tax deduction has been shown at source containing at page-12 to 18 of the brief. Therefore, the tax having been deducted at source by the deductor, obligation casts on the deductor to transmit the amount to the Income Tax authority as against gross salary of 25,39,766/-. It is further contended that on the basis of Form 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deductor- M/s Corporate Ispat Alloys Limited (TANRCHCO1143C). On verification of the documents, it is found that the petitioner was employed under the deductor-M/s Corporate Ispat Alloys Limited during the Finance Year 2012-13. The assessee received gross salary of Rs.25,39,766/- from the deductor during the period under consideration, out of which a sum of Rs.5,90,112/- was deducted at source as income tax under Section 192 of the I.T. Act. However, only TDS of Rs.3,21,379/- is getting reflected in the Form 26AS of the assessee for assessment year 2013-14 out of total TDS claim of Rs.5,90,112/- in respect of the TANRCHC01143C of the deductor-M/s Corporate Ispat Alloys Limited. This has resulted in TDS mismatch of Rs.2,68,733/- and the demand of Rs.3,24,150/- thereon. It is further contended that as per provisions contained in Section 200 of the I.T. Act, it is the duty of the person deducting tax to pay within the prescribed time period to the credit of the Central Government or as the Board directs. As such, the liability of depositing the tax deducted from the salary of the employee within prescribed time period squarely lies with the deductor (in the instant case, M/s Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en given credit by income tax on account of the fact that TDS has not been reflected in Form 26AS for various reasons. Obviously, there are different grounds and one of such grounds is that where the deductor failed to upload the true particulars of TDS, which has been deducted, as a result of which, the assessee was not given credit of tax paid. It has also been brought to the notice of this Court that there are cases where the details uploaded by the deductor and the details furnished by the assessee in income tax returns were mismatched, on that count credit was not given to the assessee. Due to such mismatch, the assessee is required to approach the Income Tax authority for rectification of their earlier intimation and based on the character entries and pray for refund of TDS, but the same is not attended to, which has happened in the present case. It has been brought to the notice of this Court by the Department that these problems are apparent, real and enormous and has escalated because of centralized computerization and problem associate with incorrect/wrong data which was uploaded by the tax deductor. Therefore, the issue of not giving credit of the TDS deducted by the ded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the circular and the office memorandum have been issued in consonance with the provisions contained in Section 205 of the I.T. Act. In the office memorandum dated 11.03.2016, it has been mentioned that the Board had issued directions to the field officers that in case of an assessee whose tax has been deducted at source but not deposited to the Government s account by the deductor, the deductee assessee shall not be called upon to pay the demand to the extent tax has been deducted from his income. It was further specified that Section 205 of the I.T. Act puts a bar on direct demand against the assessee in such cases and the demand on account of tax credit mismatch in such situations cannot be enforced coercively. 11. In Taylor v. Taylor, (1876) 1 Ch D 426, it was laid down that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. This doctrine has often been applied to Courts. Lord Roche in Nazir Ahmad v. King Emperor, AIR 1936 PC 253 followed the aforesaid principle. Subsequently, the said principle has been well recognized by the apex Court and is holding the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ths from the end of the month in which the total income is determined under this Act, and (b) In any other case, within three months from the end of the month in which the claim for refund is made under this Chapter, the Central Government shall pay the assessee simple interest at fifteen percent per annum on the amount directed to be refunded from the date immediately following the expiry of the period of three month aforesaid to the date of the order granting the refund. Explanation:-If the delay in granting the refund within the period of the three months aforesaid is attributed to the assessee, whether wholly or in part, the period of the delay attributable to him shall be excluded from the period for which interest is payable. 2) Where any question arises as to the period to be excluded for the purposes of calculation of interest under the provisions of this section, such question shall be determined by the Chief Commissioner or Commissioner whose decision shall be final. 3) The provisions of this section shall not apply in respect of any assessment for the assessment year commencing on the 1st day of April, 1989, or any subsequent assessment years. 15. In the light of the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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