Jyotindra Rasiklal Gange, Ahmedabad V. The Income Tax Officer, Ward-3(3)(2), Ahmedabad

ITA 1944/AHD/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1416 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 27-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; TDS; Set aside
• Section: 143(1); 201; 22; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER JYOTINDRA RASIKLAL GANGE, OPP. ATITHI DINNING HALL LANE, JUDGES BUNGALOW ROAD, BODAKDEV, AHMEDABAD PAN: AEPPG3981F (APPELLANT) VS THE IT O , WARD - 3(3)(2) , AHMEDABAD (RESPONDENT) REVENUE BY : S H RI N. DAS GUPTA , SR. D . R. ASSESSEE BY: NONE DATE OF HEARING : 03 - 06 - 2 019 DATE OF PRONOUNCEMENT : 10 - 06 - 2 019 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2015 - 16 , ARI SES FROM ORDER OF THE CIT(A) - 3, AHMEDABAD DATED 15 - 06 - 2 016 , IN PROCEEDINGS UNDER SECTION 143(1 ) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE ISSUE IN THE GROUNDS OF APPEAL IS AGAINST THE DECISION OF LD. CIT(A) IN NO T ALLOWING TDS DEDUCTION OF RS.20,000/ - . 3. THE BRIEF FACT IS THAT ASSESSEE HAS FILED RETURN OF INCOME ON 22 ND AUGUST, 2015. THE RETURN OF INCOME WAS PROCESSED U/S. 143(1) OF THE ACT ON 30 TH NOV, 2015 BY THE ACIT , CPC, BANGALORE . T HE ASSESSEE HAS CLAIME D I T A NO . 1944 / A HD/20 16 A SS ESSMENT YEAR 2015 - 16 I.T.A NO. 19 44 /AHD/20 16 A.Y. 2015 - 16 PAGE NO JYOTINDRA RASIKLAL GANGE VS. IT O 2 TOTAL INCOME TAX REFUND AT RS. 83 , 815/ - . HOWEVER VIDE INTIMATION U /S. 143(1), THE CPC HAS ALLOWED TOTAL INCOME TAX REFUND AT THE AMOUNT OF R S. 66 ,367/ - . 4. THE ASSESSEE HAS FILED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSE STATING THAT TH E RE WAS NO EVIDENCE ON RECORD TO SHOW THAT THE DEDUCTOR HAS DEDUCTED TAX OF RS. 20,000/ - CLAIMED IN THE COMPUTATION OF TOTAL INCOME FILED BY THE ASSESSEE. 5. DURING T H E COURSE OF APPELLATE PROCEEDINGS B E FORE US, NOBODY HAS A TTENDED FROM THE SIDE OF THE ASSESSEE. HOWEVER , THE WRITTEN SUBMISSION WAS FILED BY THE ASSESSEE ON 28TH AUGUST, 2018. ON THE OTHER HAND , THE LD. DEPARTMENTAL REPRESENTATIVE HAS SUPPORTED THE ORDER OF LOWER AUTHORITIES STATING THAT THERE WAS NO EVIDENCE ON RECO R D TO DEMONSTRATE THAT INDEED DEDUC TO R HAS DEDUCTED ANY TAX TO THE AMOUNT OF RS. 20,000/ - 6. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. IT IS NOTICED TH AT ASSESSEE HAS FILED RETUR N OF INCOME ON 22 ND AUGU ST, 2015 CLAIMING R EFUND OF RS. 83815/ - . IN THE COMPUTATION OF INCOME FILED ALONG WITH THE RETUR N OF INCOME (REVISED ) , THE ASSESSEE HAS CLAIMED TAX DEDUCTED AT SOURCE OF RS. 20 , 000/ - F R O M M/S GRAFT LABORATORIES PVT. LTD. T HE INCOME TAX RETURN FILED BY THE ASSESSEE WAS PROCESSED BY THE CPC, BANGALORE ON 30 TH NOV, 201 5 AND TOTAL CREDIT FOR TDS WAS GIVEN AT RS. 78,500/ - AS AGAINST CLAIM OF TSD CREDI T OF RS. 98 , 500/ - CLAIMED IN THE RETURN OF INCOME. THE ASSESSEE HAS CLAI MED THAT M/S GRAFT LABORATORIES PVT. LT D. HAS PAID IT RS. 1,80,000/ - AFTER DEDUCTION OF TAX RS. 20,000/ - OUT OF GROSS I.T.A NO. 19 44 /AHD/20 16 A.Y. 2015 - 16 PAGE NO JYOTINDRA RASIKLAL GANGE VS. IT O 3 PROFESSIONAL RECEIPT OF RS. 2 LACS. THE ASSESSEE HAS ALSO CLAIMED BEFORE THE LD. CIT(A) THAT M/S. GRAFT LABORATORIES HAS MADE THE AFORESAID P AYMENT AFTER DEDUCTING TDS OF RS. 2 0,000/ - . T HE ASSESSEE HAS ALSO REFERRED DECISION OF HON BLE HIGH COURT OF GUJARAT VIDE SPECIAL CIVIL APPLICATION NO. 2349 OF 2014 IN THE CASE OF SUMIT DEVENDRA RAJANI VS. ACIT ORDER DATED 23 - 06 - 2014. WE OBSERVE THAT IN THE AFORESAID CASE AS PER FORM NO. 16A, THE DEDUCTOR HAS DEDUCTED THE TAX AT SOURCE BEFORE PAYING SALARY TO THE DEDCUTEE THEREFORE IT I S HELD THAT IF THE DEPARTMENT IS OF THE OPINION THAT DEDUCTOR HAS NOT DEPOSITED THE SAID AMOUNT OF TAX DEDUCTED AT SOURCE , IT WILL ALWAYS BEEN OPEN FOR THE DEPARTMENT TO RECOVER THE SAME FROM THE DEDUCTOR. HOWEVER, I N THE CASE OF THE ASSESSEE, AS PER MATERIAL ON RECORD, IT IS NOTICED THAT THERE IS NO CERTIFICATE OF FORM NO. 16/16A ISSUED BY THE DEDUCTOR M/S. GRAFT LABORATORIES PVT. LTD. AS EVIDENCE OF DEDUC TION OF TAX . EVEN THERE WAS NO COPY OF FORM NO. 26AS PLACED IN THE RETURN DEMONSTRATING THAT TAX W AS DEDUCTED BY THE DEDUCTOR OUT OF PROFESSIONAL RECEIPT MADE TO THE ASSESSEE. IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE IMPUG NED CLAIM OF THE ASSESSEE OF DEDUCTION OF TAX BY THE DEDUCTOR TO THE AMOUNT OF RS. 20,000/ - IS REQUIRE D TO BE ADJUDICATE D ON MERIT AFTER VERIFICATION AND EXAMINATION OF THE FOLLOWING MATERIAL TO BE PRODUCED BY THE ASSESSEE. (I) F O R M NO. 16/16A ISSUED BY T H E DEDUCTOR M/S GRAFT LABORATORIES PVT. LTD. (II) FORM NO. 26AS SHOWING DETAIL OF TAX DEDUCTED AT SOURCE AND DETAIL OF PAYMENT MADE AND DETAIL OF TDS DEPOSITED ETC. (III) CHALLANS/COPIES OF TDS DEPOSITED BY THE DEDUCTOR I.T.A NO. 19 44 /AHD/20 16 A.Y. 2015 - 16 PAGE NO JYOTINDRA RASIKLAL GANGE VS. IT O 4 (IV) DETAIL RE GARDING TDS RETURN FILED BY THE DEDUCTOR ALONG WITH PAN NO AND TAN NO. IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES, WE DIRECT THE ASSESSING OFFICER TO DECIDE THE ISSUE ON VERIFICATION OF THE ABOVE REFERRED MATERIAL TO BE PRODUCED BY THE ASSESSEE. A CCORDINGLY, THE ISSUE IS SET ASIDE TO THE FILE OF THE ASSESSING OFFICER TO BE DECIDED AS ABOVE AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE . ORDER PR ONOUNCED IN THE OPEN C OURT ON 10 - 06 - 201 9 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 10 /06 /2019 / COPY OF ORDER FORWARDED T O: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,