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TMI Blog2004 (7) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of tax and the name of Bank and branch where tax has been paid. 1.2 The learned CIT(A) erred in holding that it would not be very difficult for the Appellant to furnish Form No. 16 from the employer without appreciating that the Appellant has no control over the employer in enforcing issue of Form No. 16 and Form No. 24 or the payment of tax deducted from the salary to the government." Assessee, during the relevant year, was an employee as Senior Pilot with M/s. East West Travel Trade Links Pvt. Ltd. In respect of salary received by the assessee from the said concern, income-tax has been deducted at Rs. 6,00,465. As per monthly statement given by the said concern to the assessee, this amount of tax has been shown to be deducted out of salary payable to the assessee. A return of income was furnished by assessee without TDS Certificate in Form No. 16 since the employer, the said M/s. East West Travel Trade Pvt. Ltd. did not issue the prescribed Certificate despite assessee's best efforts made in this regard. The assessee also wrote a letter to the Assessing Officer (AO), who had jurisdiction of TDS matter of the employer requesting therein to enforce the issue of TDS Cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d has been granted by the learned CIT M.C.XI, Mumbai for the year under consideration upto 31-3-2000. I would, therefore, direct the Assessing Officer that in the meanwhile he should ask the assessee to furnish Form No. 16 from the employer and it should not be very difficult for the assessee in view of the letter of the employer dated 19-3-1999. Secondly, he should enquire the I.T.O. TDS whether the employer has filed Form No. 24 if the TDS amount is shown in Form No. 24 credit can be given on the basis of this certificate. In case Form No. 24 is not filed the Assessing Officer TDS should get personal measure from the employer and try to obtain the same from it. In the absence of Form No. 16 or Form No. 24 giving credit for TDS does not appear to be justified." 2. The assessee is aggrieved by the order of CIT(A), hence in appeal. 3. After narrating the facts, it was pleaded before us by the Ld. Counsel of the assessee that according to monthly statements given by employer to the assessee, tax was duly deducted by the employer. He contended that assessee took various steps to obtain TDS Certificates from the employer but he remains unable to get the same. He contended that asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 196C and section 196D, the assessee shall not be called upon to pay the tax himself to the extent to which tax has been deducted from that income." Therefore, he pleaded that department cannot directly demand the tax to the extent it has been deducted from salary income. He contended that deduction of tax out of salary income of assessee has been deducted once and again if tax demand is collected from the assessee, the same will be the case of double taxation. For this purpose, he placed reliance on the decision of Hon'ble Supreme Court in the case of Laxmipat Singhania v. CIT [1969] 72 ITR 291. He further contended that section 205 is a bar against direct demand on the assessee and this is abundantly clear that the assessee's income on which tax has been deducted at source in accordance with the provisions contained in the Income-tax Act, he is entitled to the credit of said tax irrespective of whether the person deducting the tax has credited the same to the Central Government or not. The person deducting tax at source is in a sense statutory agent of the Central Government and for his default no assessee can be made to suffer. For this purpose, he placed reliance on the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uence of non-furnishing of certificate by the assessee in respect of TDS. Had the employer given assessee a TDS Certificate, no interest could be levied on assessee as the same was to be reduced while computing assessed tax. However, at the same time, credit for tax deducted at source cannot be given to assessee unless assessee submits certificate as prescribed under section 203 in respect of TDS as per provisions of section 199 of the Act. The decision in the case of Rallies India Ltd. {supra) cannot be taken as a precedent to hold that assessee may be given credit for TDS as in the said case, the Certificate of tax deducted at source was on record but it was not clear that whether or not the deductor of tax had made the payment of tax to the Central Government. 6. The Learned D.R. admitted that section 205 puts a bar and therefore, department has not recovered any amount from the assessee. So, to that extent, there should not be any dispute. We have come across a decision of Hon'ble Gauhati High Court in the case of Om Prakash Gattani v. Asstt. CIT [1996] 222 ITR 489 in which it has been held that in view of section 205 of the I.T. Act, 1961, the Tax authorities cannot call upo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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