ASISH KU.BEHURIA V. CHIEF COMMNR.OF INCO

WP(C)/18988/2014

AI Insights

The case revolves around a dispute concerning the refund of income tax deducted at source (TDS) from contracts executed by the petitioner, Ashish Kumar Behuria, a civil contractor, during the assessment years 2009-10 and 2010-11. The petitioner initially faced issues with the spelling of his name on his Permanent Account Number (PAN) card, which was later corrected. Despite the corrections and the TDS certificates issued by the respective departments, the Income Tax Officer (ITO) did not issue the full refund claimed by the petitioner for AY 2009-10. After multiple litigations and partial refunds, the petitioner sought the court's intervention to obtain the remaining refund amount along with interest. The court, referencing a similar case and the principles of fair treatment of taxpayers, ruled in favor of the petitioner, directing the department to issue the remaining refund and interest promptly.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 727847 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 01-09-2021
• Assessment Year: misc
• Other Referred Cases: Court on its own Motion v. Commissioner of Income Tax
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: R S CHIMANKA
• Assessee Lawyers: DAMODAR PATI
• Keywords: Assessment Year 2009-10; Income Tax Refund; Name Correction; Permanent Account Number; TDS Deduction
• Section: 154

Judgement Text

" Page 1 of 7 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.18988 of 2014 Ashish Kumar Behuria …. Petitioner Mr. Damodar Pati, Advocate -versus- Chief Commissioner of Income Tax, Bhubaneswar and others …. Opposite Parties Mr. R.S. Chimanka, Senior Standing Counsel CORAM: THE CHIEF JUSTICE JUSTICE B.P. ROUTRAY Order No. ORDER 01.09.2021 05. 1. The present petition is a third round of litigation concerning the Petitioner’s claim for refund arising out of Income Tax Returns filed by him for the assessment year (AY) 2009-10. 2. The Petitioner, who is a civil contractor, had applied for a permanent account number (PAN) and this was granted to him as ANB71662. He discovered there was a mistake in the spelling of his name. He applied for correction. The IT Department subsequently issued a fresh PAN i.e. ANBPB7166Q correctly reflecting his name as “ASHISH KUMAR BEHURIA”. // 2 // Page 2 of 7 3. The Petitioner states that during the financial year 2008-09 corresponding to AY 2009-10, he executed works of the value of Rs.39,91,877/- awarded by the Executive Engineer, Drainage Division, Chandikhol, Jajpur (Opposite Party No.4). While settling the bills of the Petitioner, Opposite Party No.4 deducted Rs.89,590/- towards income tax and issued a TDS certificate to the Petitioner. The Petitioner states that he also undertook works of the Executive Engineer, Jajpur Irrigation Division (Opposite Party No.5). While settling his bills, Opposite Party No.5 deducted Rs.49,860/- towards income tax. The respective TDS certificates issued by Opposite Party Nos.4 and 5 in favour of the Petitioner have been enclosed as Annexures-2 and 3 to the petition. 4. The Petitioner also executed works of Opposite Party Nos.4 and 5 in the AY 2010-11. They deducted a sum of Rs.46,173/- and issued a TDS certificate. Along with his returns for AY 2009-10 and AY 2010-11, the Petitioner claimed refund of Rs.1,32,238/- and Rs.46,063/- respectively. 5. When the Income Tax Officer (ITO), Ward I (2), Cuttack Range I, Cuttack (Opposite Party No.3) did not issue the refund order, the Petitioner filed W.P.(C) No.20480 of 2012 // 3 // Page 3 of 7 in this Court. On 15th July 2013, the said writ petition was disposed of by this Court with a direction to the Petitioner to appear before the ITO on 24th July 2013 at 11AM and produce the correct new PAN card. It was directed that Opposite Party No.2 would after satisfying himself, refund the amount due to the Petitioner within four weeks thereafter. 6. After the Petitioner appeared before Opposite Party No.3, he issued refund in the sum of Rs.49,520/- relating to AY 2010-11 including the interest of Rs.3457/-. For AY 2009- 10, he issued a refund of Rs.16,520/- only. 7. Separately, Opposite Party No.3 passed an order dated 5th August 2013 stating that the Petitioner had not been granted the full amount of refund as claimed by him for AY 2009-10 i.e. Rs.1,32,238/- since on verification of the 26AS statement generated from the TDS system, the Department found that a sum of Rs.22,227/- only had been credited in the account of the Petitioner under the aforesaid PAN number. After adjusting the tax liabilities and interest, a sum of Rs.16,520/- was disclosed as refund and accordingly a voucher for the said amount had been issued. Further, it was stated that the PAN card is still reflecting the name of the Petitioner as “ASHESH KUMAR BEHURIA” in the NSDL and that Opposite Party No.3 was unable to make any rectification. // 4 // Page 4 of 7 The Petitioner was asked to apply afresh to the NSDL for correction. 8. As a result, the Petitioner has filed the present writ petition, for the second time, asking that a direction should be issued to Opposite Party No.3 to refund the balance sum of Rs.1,15,718/ along with the interest. 9. In the present petition, notice was issued on 6th October 2015. However, till date no reply has been filed. 10. This Court has heard the submissions of Mr. Damodar Pati, learned counsel appearing for the Petitioner and Mr. R.S. Chimanka, learned Senior Standing Counsel for the Income Tax Department. 11. The reason given by the Department as regards the 26AS statement reflecting a credit of only a sum of Rs.22,227/- cannot be accepted to be a valid explanation. As explained by the High Court of Delhi in its judgment dated 14th March 2013 in Writ Petition (Civil) 2659 of 2012 (Court on its own Motion v. Commissioner of Income Tax) : “49. The statement reflects the true and correct position of a pique assessee as a deductee, who has suffered tax deduction at source, but is not given due credit in spite of // 5 // Page 5 of 7 the fact that the deductor has paid the said tax. The respondents have received their due or money but credit is not given to the person from whose income tax has been deducted. Denying benefit of TDS to a taxpayer because of the fault of the deductor, which is not attributable to the deductee, causes unwarranted harassment and inconvenience. The deductee feels cheated. The Revenue cannot be a silence spectator, wash their hands and pretend helplessness. The problems highlighted here are normally faced by small or middle class taxpayers, including senior citizens as they do not have Chartered Accountants or Advocates on their pay rolls. The marginal amount involved in several cases and inconvenience/harassment involved makes it unviable and futile exercise to first approach the deductor and then the Assessing Officer. Rectification and getting corrections made by the deductor and to get them uploaded is not an easy task. The second phase of filing a revised return or an application under Section 154 is equally daunting and “expensive”. In variably the assessees will write letters or even visit the office of the deductors, but when there is no response or desired result, they get frustrated and suffer. This causes distrust and feeling that the assessee has not been treated justly, fairly and in an honest manner. In our earlier orders, we had emphasised this aspect and asked the Board to take appropriate steps to ameliorate and help the small taxpayers.” // 6 // Page 6 of 7 12. In the present case, it was not the Petitioner’s fault that the TDS system did not correctly reflect the amount of TDS deducted from the Petitioner. The Petitioner already suffered the TDS for the aforementioned sum as reflected in the TDS certificates. Consequently, there appears to be no justification for the Department to withhold a further sum of Rs.1,15,718/- due to the Petitioner for AY 2009-10. With the Department not having filed any to reply to this petition for nearly six years now it cannot be heard to dispute the correctness of the above figure. 13. As regards the misspelling in the Petitioner’s name, clearly again the fault is not with the Petitioner. He has already got his PAN card corrected. The photocopy of the corrected PAN card reflecting the spelling of his name as “ASHISH KUMAR BEHURIA” is enclosed as Annexure-1 and this too has not been disputed by the Department. 14. Consequently, there appears to be no justification in the instruction issued to the Petitioner by the communication of the ITO, Ward I (2) dated 5th August 2013 that he should again approach the NSDL for correction his name in the tax records. // 7 // Page 7 of 7 15. It is accordingly directed that within a period of four weeks from today, the Department will refund to the Petitioner the aforementioned sum of Rs.1,15,718/- together with the interest as per the applicable Rules. The said sum will be credited to the account of the Petitioner not later than 4th October, 2021. 16. The writ petition is disposed of in the above terms, but in the circumstances, no order as to costs. 17. An urgent certified copy of this order be issued as per rules. (Dr. S. Muralidhar) Chief Justice ( B.P. Routray ) Judge S.K. Guin "