Shri Gyanchand Tarachand Singhvi, GANDHIDHAM V. The Assistant Commr. Income Tax,(C.P.C.), Bangalore

ITA 257/RJT/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 6826 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 01-08-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NAMITA KHURANA SR D R
• Assessee Lawyers: DM RINDANI
• Keywords: Recovery proceedings; Salary income
• Section: 143(3); 234B

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [ CONDUCTED THROUGH E-COURT AT AHMEDABAD ] LOZJH IZNHI DQEKJ DSFM;K] LOZJH IZNHI DQEKJ DSFM;K] LOZJH IZNHI DQEKJ DSFM;K] LOZJH IZNHI DQEKJ DSFM;K] YS[KK LNL; ,OA EGKOHN IZL KN] U;KF;D LNL; DS LE{KA YS[KK LNL; ,OA EGKOHN IZLKN] U;KF;D LNL; DS LE{KA YS[KK LNL; ,OA EGKOHN IZLKN] U;KF;D LNL; DS LE{KA YS[KK LNL; ,OA EGKOHN IZLKN] U;KF;D LNL; DS LE{KA BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.A. NO.257/RJT/2016 ( / ASSESSMENT YEAR : 2013-14) SHRI GYANCHAND TARACHAND SINGHVI, OFFICE NO.102, ASHOPALAV ARCADE, TAGORE ROAD, SECTION 9/A, GANDHIDHAM 370 021. / VS. THE ACIT(CPC), POST BAG NO.2, ELECTRONIC CITY POST OFFICE, BANGALORE 560 100 ./ ./ PAN/GIR NO. : AHFPS 2556 M ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI D. M. RINDANI, A.R. ! / RESPONDENT BY : SMT. NAMITA KHURANA, SR. D.R. ' #$ % ! & / DATE OF HEARING 07/12/2017 '( ! & / DATE OF PRONOUNCEMENT 22/12/2017 )* / O R D E R PER MAHAVIR PRASAD, JUDICIAL MEMBER : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-3, RAJKOT [CIT( A) IN SHORT] VIDE APPEAL NO.CIT(A)-3/A3/0919/14-15 DATED 22/12/2014 I N THE MATTER OF ASSESSMENT ORDER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) RELEVANT TO THE ASSESSMENT YEAR (AY) 2013-14, ON THE FOLLOWING GROUNDS: ITA NO.257/RJT/ 2016 SHRI GYANCHAND TARACHAND SINGHVI VS. ACIT ASST.YEAR 2013-14 - 2 - 1. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 3, RAJKOT ERRED IN CONFIRMING ACTION OF THE ASSESSING OFFICER IN NOT GIVING CREDIT OF RS.11,89,102/- CLAIMED BY THE APPELLANT I N HIS RETURN OF INCOME BY WAY OF TAX AT SOURCE DEDUCTED BY THE EMPL OYER U/S.192 OF THE ACT. 2. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 3, RAJKOT FAILED TO APPRECIATE THAT NOTWITHSTANDING RECOVERY OF TDS AMOUNT OF RS.11,89,102/- FROM THE EMPLOYER, U/S.205 THE ASSES SEE CANNOT BE CALLED UPON TO PAY THE TAX DEDUCTED FROM HIS SALARY INCOME AND HAVE ERRED IN NOT SUMMARILY QUASHING THE INTIMATION U/S. 143(1) AND CONSEQUENT DEMAND OF RS.15,47,320/- UPON THE APPELL ANT. 3. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 3, RAJKOT ERRED IN CONFIRMING ACTION OF ASSESSING OFFICER IN CHARGING INTEREST OF RS.73,872/-, RS.2,46,240/- AND RS.45,555/- U/S.2 34A, 234B AND 234C RESPECTIVELY BY NOT GIVING TDS CREDIT OF RS.11 ,89,102/-. 2. THE BRIEF FACTS OF THE CASE ARE THAT IN THIS CAS E, APPELLANT HAS DERIVED SALARY FROM M/S. VARUN INDUSTRIES LTD., MUM BAI. THE GROSS SALARY OF THE APPELLANT WAS RS.41,66,665/- AND AFTE R DEDUCTIONS/EXEMPTIONS, NET SALARY INCOME OF RS.40,6 3,165/- WAS OFFERED TO TAX. EMPLOYER HAD DEDUCTED TDS EVERY MONTH FROM SALARY PAID TO THE APPELLANT. THE PAY SLIPS ISSUED BY THE EMPLOYER WER E SUBMITTED BEFORE THE LOWER AUTHORITIES. EMPLOYER OF THE APPELLANT HA S ALSO ISSUED A SALARY CERTIFICATE WHEREIN HE HAS SHOWN THE GROSS AMOUNT O F SALARY AND THE AMOUNT OF TDS MADE BY IT. THE SAID EMPLOYER DID NOT PROVIDE THE SALARY CERTIFICATE IN PRESCRIBED FORM NO.16 IN SPITE OF TH E REPEATED REQUESTS BY THE APPELLANT. NONE THE LESS, FACT OF DEDUCTION OF TAX CAN BE VERIFIED FROM THE CERTIFICATE ISSUED BY THE EMPLOYER AS WELL AS T HE MONTHLY PAY SLIPS ISSUED BY THE EMPLOYER. HOWEVER, EMPLOYER HAS NOT D EPOSITED THE TDS ITA NO.257/RJT/ 2016 SHRI GYANCHAND TARACHAND SINGHVI VS. ACIT ASST.YEAR 2013-14 - 3 - WITH THE DEPARTMENT. ASSESSING OFFICER DID NOT GIVE CREDIT OF RS.11,89,102/- CLAIMED BY THE APPELLANT IN HIS RETU RN OF INCOME. 3. AGAINST THE SAID ORDER ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) WHO PARTLY ALLOWED THE APPEAL BY FOLLOWING OBSERVATION: I DIRECT THE AO MADE INQUIRIES FROM THE EMPLOYER O F APPELLANT REGARDING OF TDS DEDUCTED, AND TO TAKE EFFECTIVE AC TION FOR RECOVERY OF SAID AMOUNT ALONG WITH INTEREST, (AS TDS) SO THAT A PPELLANT CAN GET CREDIT OF THE SAME AND DEMAND CREDITED AGAINST HIM IS NULLIFIED. TILL THIS ACTION BECOMES EFFECTIVE NO ACTION SHOULD BE TAKEN FOR RECOVERY OF DEMAND AS REFLECTED BY INTIMATION U/S.143(1) AGAINS T APPELLANT. 6.0 IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. 4. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMP UGNED ORDER. APPELLANT WANTS FURTHER CLARIFICATION ON CIT(A) ORD ER. IN OUR CONSIDERED OPINION SECTION 205 CLEARLY BAR THE DEPARTMENT NOT TO RAISE THE DEMAND IN SUCH CASE AND SAME IS REPRODUCED AS UNDER: WHERE TAX IS TAXABLE AT A SOURCE (FOREGOING PROVIS ION OF THIS CHAPTER) THE ASSESSEE SHALL NOT BE CALLED UPON TO PAY THE TA X IN SURVEY TO THE EXTENT TO WHICH TAX HAS BEEN DEDUCTED FROM THAT INC OME. 5. SINCE LD. CIT(A) HAS ALREADY DIRECTED TO AO TO S TAY RECOVERY OF TAX DEDUCTION BY EMPLOYER FROM THE ASSESSEE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A). THERE IS NO PROVISION FOR G RANTING CREDIT FOR TDS DEDUCTED BY EMPLOYER BUT NOT DEPOSITED WITH GOVT. T REASURY. SINCE, THE ITA NO.257/RJT/ 2016 SHRI GYANCHAND TARACHAND SINGHVI VS. ACIT ASST.YEAR 2013-14 - 4 - INTEREST OF THE ASSESSEE IS PROTECTED BY THE ORDER OF THE CIT(A), WE DECLINE TO INTERFERE. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS D ISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 22/12/2017 SD/- SD/- IZNHI DQEKJ DSFM;K IZNHI DQEKJ DSFM;K IZNHI DQEKJ DSFM;K IZNHI DQEKJ DSFM;K EGKOHJ IZLKN EGKOHJ IZLKN EGKOHJ IZLKN EGKOHJ IZLKN YKS[KK LN YKS[KK LN YKS[KK LN YKS[KK LNL; L; L; L; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; (PRADIP KUMAR KEDIA) ( MAHAVIR PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 22/12/2017 PRITI YADAV, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. + & ' ,& / CONCERNED CIT 4. ' ,& () / THE CIT(A)-3, RAJKOT. 5. /$0 1 2&2# , , 45) + ) / DR, ITAT, AHMEDABAD 6. 1 67 8 % / GUARD FILE. / BY ORDER, /& 2& //TRUE COPY// / ! '#$ ( DY./ASSTT.REGISTRAR) ! $%! &, / ITAT, AHMEDABAD 1. DATE OF DICTATION 15/12/2017(DICTATION-PAD 2 PA GES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 21/12/2017 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER