Benedict Victor Gabriel, CHENNAI V. DCIT Non Corporate Circle 16(1), CHENNAI

ITA 2496/CHNY/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6904 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2016-2017
• Appeal Filed On: 28-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M. SRINIVASA RAO
• Keywords: Recovery proceedings; Set aside
• Section: 205

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI . . . , . !', $ '% BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NOS.2494, 2495 & 2496/CHNY/2018 ' (' / ASSESSMENT YEARS : 2010-11, 2015-16 & 2016-17 SHRI BENEDICT VICTOR GABRIEL, M/S RAMESH AND RAMACHANDRAN CHARTERED ACCOUNTANTS, NEW NO.39, OLD NO.29/3, VISWANATHAPURAM MAIN ROAD, KODAMBAKKAM, CHENNAI - 600034. PAN : AAGPG 9949 L V. THE DEPUTY COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE 16(1), CHENNAI. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : SHRI Y. SRIDHAR, CA ,-*+ . / / RESPONDENT BY : DR. M. SRINIVASA RAO, CIT 0 . 1$ / DATE OF HEARING : 07.02.2019 23( . 1$ / DATE OF PRONOUNCEMENT : 01.03.2019 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : ALL THE APPEALS OF THE ASSESSEE ARE DIRECTED AGAI NST THE COMMON ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APP EALS) -4, CHENNAI, DATED 13.07.2018. SINCE COMMON ISSUE ARISES FOR CO NSIDERATION IN ALL THESE APPEALS, WE HEARD THESE APPEALS TOGETHER AND DISPOSING THE SAME BY THIS COMMON ORDER. 2 I.T.A. NO.2494 TO 2496/CHNY/18 2. SHRI Y. SRIDHAR, THE LD. REPRESENTATIVE FOR THE ASSESSEE, SUBMITTED THAT THE TAX WAS DEDUCTED BY THE EMPLOYER AT THE TIME OF PAYMENT OF SALARY. HOWEVER, ACCORDING TO THE LD. R EPRESENTATIVE, IT APPEARS THAT THE EMPLOYER HAS NOT DEPOSITED THE AMO UNT TO THE PUBLIC ACCOUNT, THEREFORE, THERE WAS NO CREDIT OF THE TAX. THE ASSESSEE IN SUPPORT OF THE CLAIM FILED FORM 16 ISSUED BY THE EM PLOYER. THEREFORE, ACCORDING TO THE LD. REPRESENTATIVE, THERE CANNOT B E ANY RECOVERY OF TAX PAID BY THE ASSESSEE IN VIEW OF SECTION 205 OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). 3. WE HEARD DR. M. SRINIVASA RAO, THE LD. DEPARTMEN TAL REPRESENTATIVE ALSO. THE ASSESSEE CLAIMS THAT TAX WAS DEDUCTED BY THE EMPLOYER AT THE TIME OF PAYMENT OF SALARY. IN SUPP ORT OF THE CLAIM OF THE ASSESSEE, FORM 16 ISSUED BY THE EMPLOYER WAS FILED BEFORE THE ASSESSING OFFICER AS WELL AS THE CIT(APPEALS). THE REFORE, IT IS FOR THE ASSESSING OFFICER TO VERIFY WHETHER THE EMPLOYER HA S DEDUCTED TAX AS DISCLOSED IN FORM 16 ISSUED TO THE ASSESSEE OR NOT. UNLESS AND UNTIL THE ASSESSING OFFICER COMES TO A CONCLUSION THAT THE EM PLOYER HAS NOT DEDUCTED TAX, THERE CANNOT BE ANY RECOVERY AGAINST THE ASSESSEE. 4. NORMALLY, TAX HAS TO BE COLLECTED FROM THE TAXPA YER AFTER COMPLETION OF ASSESSMENT. HOWEVER, THE PARLIAMENT IN ITS WISDOM 3 I.T.A. NO.2494 TO 2496/CHNY/18 AUTHORIZED THE GOVERNMENT TO RECOVER THE TAX AT THE TIME OF PAYMENT. THIS ARRANGEMENT BY WAY OF SCHEME OF INCOME-TAX ACT WAS PROVIDED TO ENSURE THAT THE TAX WAS RECOVERED AT THE APPROPRIAT E TIME SO THAT THE GOVERNMENT MACHINERY CAN FUNCTION PROPERLY. UNDER THE SCHEME OF INCOME-TAX ACT, AT THE TIME OF DEDUCTION OF TAX, TH E EMPLOYER, WHO IS AUTHORIZED TO DEDUCT TAX, IS ACTING AS AGENT OF THE GOVERNMENT. THEREFORE, TAX WAS DEDUCTED BY THE EMPLOYER AS AUTH ORIZED BY THE INCOME-TAX ACT. AS FAR AS THE ASSESSEE IS CONCERNE D, THE TAX WAS PAID TO THE GOVERNMENT ACCOUNT. IN CASE THE EMPLOYER FAILS TO DEPOSIT THE AMOUNT TO THE GOVERNMENT ACCOUNT, IT IS BETWEEN GOV ERNMENT AND EMPLOYER, WHO WAS AUTHORIZED TO DEDUCT TAX. AS FAR AS THE ASSESSEE IS CONCERNED, THERE CANNOT BE ANY RECOVERY IN VIEW OF SECTION 205 OF THE ACT. 5. IN VIEW OF THE ABOVE, THE ORDERS OF BOTH THE AUT HORITIES BELOW ARE SET ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE TH E MATTER AND BRING ON RECORD WHETHER THE TAX WAS DEDUCTED BY THE EMPLOYER AS CLAIMED BY THE ASSESSEE. IF THE ASSESSING OFFICER FINDS THAT THE TAX WAS DEDUCTED BY THE EMPLOYER AT THE TIME OF MAKING PAYMENT TO THE ASSES SEE, THEN THERE CANNOT BE ANY RECOVERY FROM THE ASSESSEE. IT IS FO R THE ASSESSING OFFICER TO SUMMON THE EMPLOYER DURING THE COURSE OF RE-EXAM INATION IN ORDER TO 4 I.T.A. NO.2494 TO 2496/CHNY/18 ASCERTAIN WHETHER THE TAX WAS DEDUCTED OR NOT. THE ASSESSEE SHALL FILE NECESSARY MATERIAL BEFORE THE ASSESSING OFFICER. 6. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSE SSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 1 ST MARCH, 2019 AT CHENNAI. SD/- SD/- (. !') ( . . . ) (S. JAYARAMAN) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 1 ST MARCH, 2019. KRI. . ,167 87(1 /COPY TO: 1. *+/ APPELLANT 2. ,-*+/ RESPONDENT 3. 0 91 () /CIT(A)-4, CHENNAI-34 4. PRINCIPAL CIT- 5, CHENNAI 5. 7: ,1 /DR 6. ' ; /GF.