Rajendra Pd. Gupta, Allahabad V. DCIT, Allahabad

ITA 378/ALLD/2014

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 9785 (ITAT-ALLAHABAD)
• Duration Of Justice: 7 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 1993-1994
• Appeal Filed On: 04-06-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PAWAN JAISWAL
• Keywords: Non compliance; TDS
• Section: 154; 264; 113; 48

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD BENCH ALLAHABAD [THROUGH VIRTUAL COURT] BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA No. 378/ALLD/2014 Assessment Year: 1993-94 Mr Rajendra Prasad Gupta 12/16, Mayo Road, Allahabad-211003, U.P. v. DCIT, Circle-1, Allahabad,U.P. PAN:ACLPG6463C (Appellant) (Respondent) Appellant by: Shri Pawan Jaiswal, CA Respondent by: Shri Ramendra Kumar Vishwakarma, CIT-DR Date of hearing: 17.01.2022 & 24.01.2022 Date of pronouncement: 24.01.2022 O R D E R Per Shri Ramit Kochar, Accountant Member: This appeal bearing number 378/Alld/2014 for assessment years (ay): 1993-94 had been filed by assessee before Income Tax Appellate Tribunal, Allahabad, U.P. ( hereinafter called “the tribunal”) against appellate order passed by ld. Commissioner of Income-tax(A), Allahabad, dated 12.03.2014 . This appeal was heard through video conferencing mode through Virtual Court. The appeal was first heard by Division Bench of ITAT, Allahabad Bench, Allahabad , on 17 th January, 2022. On 18 th January, 2022, it was fixed for clarification , with directions to both the parties to file clarification on ITA Nos.378/ALLD/2014 Shri Rajendra Prasad Gupta 2 shortfall in payment of taxes and the status report on or before 24 th January, 2022, and the date of hearing was fixed for 24 th January 2022. 2. The ld. Counsel for the assessee CA , Shri Pawan Jaiswal appeared before the Bench on 17.01.2022 and made statement before the Bench that the assessee had made an application in Form No. 1 and 2 before the Revenue for availing Vivad Se Viswas Scheme, 2020 and ld. Pr. CIT has already issued Form No. 3. It was averred that the assessee had paid due taxes and Form No. 4 was filed by assessee with Revenue. It was averred by assessee before the Bench that it is only due to technical glitch Form No. 5 could not be issued by Department in favour of the assessee. The ld. Counsel for the assessee made prayers before the Division Bench at the time of hearing of the appeal on 17 th January, 2022 , firstly , that the appeal filed by the assessee be allowed to be withdrawn in view of VSVS , 2020 availed by assessee and secondly that the directions be issued by the Bench to Department to issue Form No. 5 at the earliest , as the assessee is facing lot of inconvenience and hardship owing to not issuance of Form No. 5 under VSVS , 2020 by department. The ld. CIT DR submitted during the course of hearing on 17 th January 2022 that the assessee has availed VSVS, 2020 scheme and Form No. 5 under VSVS , 2020 is still to be issued by Department. The appeal was heard by DB on 17 th January, 2022 with the directions to the ld. Counsel for the assessee to file all updated records in connection with availment of VSVS , 2020 scheme along with copy of paid challan. The assessee filed all records on the date of hearing viz. 17 th January, 2022 itself . On perusal of the said record filed by assessee on 17 th January 2022, it transpired that in Form No. 3 issued by Department, the amount determined to be payable under VSVS , 2020 was Rs. 2,93,187/- if paid before 31.03.2021 and Rs. 3,22,506/- if paid after 31.03.2021. The assessee had placed on record paid challan of Rs. 2,37,398/- , dated 09.04.2021, claimed to be paid under VSVS, 2020 scheme . Since, there was short payment of taxes under the VSVS , 2020 scheme, the matter was kept for clarification , vide interim orders dated 18.01.2022 and the date of hearing before Division Bench was fixed for 24.01.2022, with directions to both the parties to clarify on this short payment of ITA Nos.378/ALLD/2014 Shri Rajendra Prasad Gupta 3 taxes and file status report on or before 24.01.2022. The appeal was finally heard on 24.01.2022, wherein, both the parties have filed clarifications and status report, which are placed on record in file. It is clarified firstly that in view of Covid-19 disease, the period of availment of VSVS , 2020 scheme and payment of amount under the VSVS, 2020 scheme got extended from time to time. The assessee paid Rs. 2,37,398/- on 09.04.2021 under the VSVS, 2020 scheme and hence the differential/shortfall would be Rs. 55,789/- as the assessee is liable to pay Rs.2,93,187/- owing to extension in time under the scheme. It is now a claim of the assessee that the assessment year being 1993-94, at that point of time , the assessee was holding GIR No. and computerized PAN was not allotted to the assessee. The claim of the assessee is that it paid Rs. 55,789/- vide prepaid taxes under GIR allotted to it , vide TDS of Rs. 20,789/- and Advance tax of Rs. 35,000/-. It was submitted that these are old payments (impugned ay 1993-94) and were paid at the time when no computerized records were available of these prepaid taxes with the department and hence the assessee is getting difficulties in getting credit of prepaid taxes to the tune of Rs. 55,789/-. It is also submitted that these payments are duly reflected in income tax computation form , dated 11.02.1997 issued by department(placed on record in file) for ay: 1993-94. The assessee’s counsel claimed that the assessee is suffering for no fault of it. The ld. Counsel for the assessee prayed for withdrawal of the assessee’s appeal and also prayed for direction to be issued by the Bench to the department to issue Form No. 5 under VSVS, 2020 , at the earliest. The ld. CIT-DR submitted that the assessee has availed VSVS, 2020 scheme and Form No. 5 has not been issued so far. 3. In view of the fact that the assessee wants to withdraw its own appeal on the ground of availment of VSVS 2020 scheme, therefore, the present appeal of the assessee is allowed to be withdrawn and consequently the same is dismissed as being withdrawn. So far as issuance of Form No. 5 and shortfall of taxes to the tune of Rs. 55,789/- is concerned , which the assessee is claiming that it paid Advance tax of Rs. 35,000/- and TDS of Rs. 20,789/- , under the old regime when GIR No. existed (impugned ay: 1993- 94) and no computerized record is available with department for which the Revenue is ITA Nos.378/ALLD/2014 Shri Rajendra Prasad Gupta 4 not able to give credit for such prepaid taxes , but these facts are appearing in income-tax computation form issued by Revenue, suffice would be for us to remind Revenue of circular number 14(XL-35) , dated 11.04.1995, which stipulates that it is the duty of officers of the Revenue to assist the tax-payers to redress their genuine grievances, the said circular is reproduced hereunder: “Administrative instructions for guidance of Income-tax Officers on matters pertaining to assessment 1. The Board have issued instructions from time to time in regard to the attitude which the Officers of the Department should adopt in dealing with assessees in matters affecting their interests and convenience. It appears that these instructions are not being uniformly followed. 2. Complaints are still being received that while Income-tax Officers are prompt in making assessments likely to result into demands and in effecting their recovery, they are lethargic and indifferent in granting refunds and giving reliefs due to assessees under the Act. Dilatoriness or indifference in dealing with refund claims (either under section 48 or due to appellate, revisional, etc., orders) must be completely avoided so that the public may feel that the Government are actually prompt and careful in the matter of collecting taxes and granting refunds and giving reliefs. (3) Officers of the Department must not take advantage of ignorance of an assessee as to his rights. It is one of their duties to assist a taxpayer in every reasonable way, particularly in the matter of claiming and securing reliefs and in this regard the Officers should take the initiative in guiding a taxpayer where proceedings or other particulars before them indicate that some refund or relief is due to him. This attitude would, in the long run, benefit the department for it would inspire confidence in him that he may be sure of getting a square deal from the department. Although, therefore, the responsibility for claiming refunds and reliefs rests with assessee on whom it is imposed by law, officers should— (a) draw their attention to any refunds or reliefs to which they appear to be clearly entitled but which they have omitted to claim for some reason or other ; (b) freely advise them when approached by them as to their rights and liabilities and as to the procedure to be adopted for claiming refunds and reliefs. 4. Public Relation Officers have been appointed at important centres, but by the very nature of their duties, their field of activity is bound to be limited. The following examples (which are by no means exhaustive) indicate the attitude which officers should adopt : ITA Nos.378/ALLD/2014 Shri Rajendra Prasad Gupta 5 (1) Section 17(1) of the 1922 Act [section 113 of the 1961 Act] - While dealing with the assessment of a non-resident assessee the officer should bring to his notice that he may exercise the option to pay tax on his Indian income with reference to his total world income if it is to his advantage. (2) Section 18(3), (3A), (3B) and (3D) of the 1922 Act [sections 193, 197(1), 195(1), 195(2) and 194 of the 1961 Act] - The officer should in every appropriate case bring to the assessee’s notice the possibility of obtaining a certificate authorising deduction of income- tax at a rate less than the maximum or deduction of super tax at a rate lower than the flat rate, as the case may be. (3) Section 25(3) and 25(4) of the 1922 Act - The mandatory relief about exemption from tax must be granted whether claimed or not ; the other relief about substitution, if not time barred, must be brought to the notice of a taxpayer. (4) Section 26A of the 1922 Act [sections 184 to 186 of the 1961 Act] - The benefit to be obtained by registration should be explained in appropriate cases. Where an application for registration presented by a firm is found defective, the officer should point out the defect to it and give it an opportunity to present a proper application. (5) Section 33A of the 1922 Act [section 264 of the 1961 Act] - Cases in which the Income- tax Officer or the Assistant Commissioner thinks that an assessment should be revised, must be brought to the notice of the Commissioner of Income-tax. (6) Section 35 of the 1922 Act [sections 154 and 155 of the 1961 Act] - Mistakes should be rectified as soon as they are discovered without waiting for an assessee to point them out. (7) Section 60(2) of the 1922 Act [sections 89(1) and 103 of the 1961 Act] - Cases where relief can properly be given under this sub-section should be reported to the Board. 5. While officers should, when requested, freely advice assessees the way in which entries should be made in various forms, they should not themselves make any in them on their behalf. Where such advice is given, it should be clearly explained to them that they are responsible for the entries made in any form and that they cannot be allowed to plead that they were made under official instructions. This equally applies to the Public Relation Officers. 6.The intention of this circular is not that tax due should not be charged or that any favour should be shown to anybody in the matter of assessment, or that where investigations are called for, they should not be made. Whatever the legitimate tax it must be assessed and must be collected. The purpose of this circular is merely to emphasise that we should not take advantage of an assessee’s ignorance to collect more tax out of him than is legitimately due from him. Circular :No. 14(XL-35), dated 11-4-1955.” Suffice, is to say that Department should look into merit of the claim/grievance of the assessee for having prepaid taxes but still not getting due credit for such prepaid taxes, ITA Nos.378/ALLD/2014 Shri Rajendra Prasad Gupta 6 and once Revenue is satisfied on merits of the claim/grievance of the assessee, as a necessary corollary , Form No. 5 under VSVS, 2020 be issued by Department to the assessee. We are granted liberty to file petition for recall of this order, in case if it is found that the claim/grievance of the assessee in not getting credit of prepaid taxes is not meritorious or for any other genuine reasons Form No. 5 could not be issued owing to non compliance / non fulfilment by assessee of any of the terms of VSVS, 2020 scheme. We order accordingly. 4. In the result, the appeal filed by the assessee in ITA no. 378/Alld/2014 for ay: 1993-94 is dismissed as withdrawn. . Order pronounced in the open Court in the presence of both the parties after conclusion of hearing on 24/01/2022 through video conferencing . Sd/- Sd/- [VIJAY PAL RAO] [RAMIT KOCHAR] JUDICIAL MEMBER ACCOUNTANT MEMBER Dated:24/01/2022 Copy forwarded to: 1. Appellant – Shri Rajendra Prasad Gupta,12/16, Mayo Road, Allahabad, U.P. 2. Respondent – The DCIT, Circle-I, Allahabad, U.P. 3. CIT(A) –Allahabad, U.P. 4. CIT, Allahabad, U.P. 5. DR – The CIT(DR), ITAT, Allahabad, U.P. By order Assistant Registrar