9911796707
TMI Blog2024 (11) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... i [ 2000 (1) TMI 43 - GAUHATI HIGH COURT] this Court allowed the same stating Department cannot deny the benefit of tax deducted at source by the employer of the petitioner during the relevant financial years. Credit of such tax would be given to the petitioner for the respective years. If there has been any recovery or adjustment out of the refunds of the later years, the same shall be returned to the petitioner with statutory interest. - Decided in favour of assessee. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE D.N.RAY Appearance: For the Petitioner(s) No. 1 : Mr B S Soparkar (6851). For the Respondent(s) No. 1: Mr. Varun K. Patel (3802). ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned advocate Mr. B.S. Soparkar for the petitioner and learned Senior Standing Counsel Mr. Varun Patel for the respondent. 2. Rule returnable forthwith. Learned advocate Mr. Senior Standing Counsel Varun Patel waives service of notice of rule for the respondent. 3. Having regard to the controversy involved which is in narrow compass, with the consent of the learned advocates for the parties, the matter is taken up for hearing. 4. By this petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .07.2022 Rs. 75,591/- 08.10.2022 Rs.77,410/- 23-24 26.07.2023 Rs. 87,109/- 28.02.2024 Rs. 80,060/- Intimation u/s. 245 is issued subsequently 5.4 Meanwhile on 27.01.2015 and 08.07.2015, the petitioner filed an application for rectification u/s 154 of the Act against the demand raised in the intimation for AY 2009-10 and adjustment of refunds of subsequent years. 5.5 The Jurisdictional Assessing Officer passed an order rejecting the rectification application which was assailed before CIT (Appeals) who by order dated 02.02.2018 directed the Jurisdictional Assessing Officer to rectify the mistake apparent on record by verifying the contention of the Petitioner. For long time, no order giving effect to the order of the CIT(A) was passed. The Petitioner thereafter requested the Jurisdictional Assessing Officer to give appeal effect of the said order vide letter dated 15.03.2018. 5.6 Thereafter, on 28.02.2024, the Petitioner has received intimation u/s 245 of the Act via E-mail proposing to adjust the refund of Assessment Year 2023-24 against the outstanding demand of AY 2009-10 and AY 2011-12 which also shows that as per the records of the respondents, the outstanding dues against AY 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The issue is no longer res integra. The Division Bench of this Court in case of Sumit Devendra Rajani (Supra) examined the statutory provisions and in particular Section 205 of the Income-tax Act, 1961. The Court concurred with the view of the Bombay High Court in case of Asst. CIT VS. Om Prakash Gattani, reported in (2000) 242 ITR 638 and observed as under - 10. We are in complete agreement with the view taken by the Bombay High Court and Gauhati High Court. Applying the aforesaid two decisions of the Bombay High Court as well as Gauhati High Court, the facts of the case on hand and even considering Section 205 of the Act action of the respondent in not giving the credit of the tax deducted at source for which form no.16 A have been produced by the assessee deductee and consequently impugned demand notice issued under Section 221(1) of the Act cannot be sustained. Concerned respondent therefore, is required to be directed to give credit of tax deducted at source to the assessee deductee of the amount for which form no.16 A have been produced. 11. In view of the above and for the reasons stated petition succeeds. It is held that the petitioner assessee deductee is entitled to cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax at source. The responsibility to deposit the amount deducted at source as tax is that of the person who is responsible to deduct the tax at source. On the amount being deducted the assessee only gets a certificate to that effect by the person responsible to deduct the tax. In a case where the amount has been deducted by the person responsible to deduct the amount under the statutory provisions, the assessee has no control over the matter. In case of default in making over the amount to the account of the Central Government, it is obviously the person responsible to deduct or the person who has made the deduction who is held responsible for the same. The responsibility of such person is to the extent that he has to be deemed to be an assessee in default in respect of the tax. He may be deemed to be an asses see in default not only in cases where after deduction he does not make over the amount to the Central Government but also in cases where there is failure on his part to deduct the amount at source. This responsibility has been fastened upon him under Section 201 of the Income-tax Act. It is, of course, without prejudice to any other consequences which he or it may incur. Pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee and he would be deemed to be an assessee in default. Whatever process or coercive measures are permissible under the law would only be taken against such person and not the assessee. 15. However, the position as indicated above would not mean that mere deduction of the tax amount at source would amount to total discharge of the tax liability so long as the amount deducted is not deposited in the coffers of the Central Government. It is for this reason Section 199 of the Income-tax Act makes it clear that credit for tax deducted would be given when the amount is deducted and paid to the Central Government and a certificate of deduction is produced as furnished under Section 203 of the Income-tax Act. It is obvious that unless the amount is paid to the Central Government, the tax liability is not discharged, nor can it be said that the assessee has made the payment of the tax amount payable to the Government. We find no force in the submission made on behalf of the petitioner-respondent that on mere deduction of the amount at source, credit for tax deducted must be given and it cannot be withheld even though the person responsible to deduct the tax at source has not made it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 199 of the Income-tax Act. 16. A perusal of Section 205 of the Income-tax Act clarifies the position where it provides that where tax is deductible at source, the assessee shall not be called upon to pay the tax himself to the extent to which tax has been deducted from that income. What is noticeable in this provision is that its applicability is not dependent upon the credit for tax deducted being given under Section 199 of the Income-tax Act. What is necessary for applicability of this provision is that the amount has been deducted from the income. In case where the amount has been deducted but not paid to the Central Government that eventuality is taken care of by Section 201 of the Income-tax Act. Learned counsel for the appellant could not show that under the law it may be permissible to proceed against the assessee even after deduction of the tax at source, nor learned counsel for the petitioner respondent could persuade us to hold that merely by deduction of tax at source, credit for deduction of tax at source has to be given even though the amount may not have been made over to the Government treasury. The reason for this has already been explained by us in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
