Kailash Chandra Tripathi, Udaipur V. ITO, Ward-1(4), Udaipur

ITA 40/JODH/2022

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 8280 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 10-03-2024
• Assessment Year: 2008-2009
• Appeal Filed On: 29-03-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PREM PRAKASH MEENA
• Assessee Lawyers: KAILASH CHANDRA TRIPATHI SELF
• Keywords: Salary income; TDS
• Section: 154; 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR. BEFORE: DR. S. SEETHALAKSHMI, JJUDICIAL MEMBER & SHRI RATHOD KAMLESH JAYANTBHAI, ACCOUNTANT MEMBER I.T.A. No. 40/Jodh/2022 Assessment Year: 2008-09 Kailash Chandra Tripathi 26 Indraprastth Colony, Sector 14, Hiran Magri Udaipur [PAN: AALPT 8881 B] (Appellant) Vs. Income Tax Officer, Ward 1(4), Udaipur (Respondent) Appellant by Sh. Kailash Chandra Tripathi (Self) Respondent by Sh. Prem Prakash Meena, Sr. DR Date of Hearing 11.03.2024 Date of Pronouncement 13.03.2024 ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal filed by assessee is arising out of the order of the National Faceless Appeal Centre, Delhi dated 25/03/2021 [here in after ‘NFAC’ ] for assessment year 2008-09which in turn arise from the order dated 16.08.2018 passed under section 154of the Income Tax Act, by ITO, Ward-1(4), Udaipur. 2. In this appeal, the assessee has raised following grounds: - I.T.A. No. 40/Jodh/2022 Assessment Year: 2008-09 2 “1. On the facts and circumstances of the case Ld. ITO/AO has erred in law as well as in facts by disallowed TDS of Rs. 36400 on account of mismatch &later on TDS matched but AO not given credit.” 3. At the outset of hearing the bench noted that the appeal filed by the assessee is delayed by 309 days and the assessee has prayed that he being senior citizen and on account of physical movement restriction imposed on account of Covid-19 he was advised not to come in the contact of the anyone and therefore, there exist a delay of 309 days. The assessee appeared personally explained the reasons attributable to delay. The bench noted that the order against which the appeal is filed is dated 25.03.2021 and the appeal is filed on 04.04.2022 these period being affected on account of Pandemic Covid-19 we condone the delay in bringing the present appeal which is delayed by 309 days as the same is covered by the apex court suo moto direction and considering the facts of the case we condone the delay in bringing the present appeal. 4. Succinctly, the fact as culled out from the records is that the return of income for the Asstt. Year 2008-09 filled on 18.08.2008. The total income shown as per ITR 3,92,297/- . The tax payable on said income was Rs. 34701/-. Total Tax payable Rs. 34701/- adjusted against TDS deduced by the employer Rs. 36400/-. In assessment u/s 143(1) TDS I.T.A. No. 40/Jodh/2022 Assessment Year: 2008-09 3 credit has not been given by AO due to mismatch of TDS. Assessee has approach to TDS deductor regarding mismatch of TDS and after a long time TDS is reflected in 26AS. After match of TDS filled rectification of demand to the ITO Ward-1(4), Udaipur and to expiry of time limit of rectification AO has rejected the same vide order dated 16.08.2018. 5. Aggrieved from the order of AO, the assessee preferred an appeal before the ld. CIT(A). Apropos to the grounds so raised the relevant finding of the ld. CIT(A) is reiterated here in below: “It is clear from an examination of facts on record that the appellant filed an application for rectification u/s 154 of the IT Act of the order passed on 18.08.2008. The AO has rightly rejected the same as per the provision of section 154(7) of the IT Act as it has been filed beyond the time permitted by the Act. Reliance is placed on the case of Ashu Engiment Plastics Pvt. Ltd., Mumbai vs. DCIT in ITA No. 3453/Mum/2010 (AY 2001-02) dated 29.04.2011.” 6. Feeling dissatisfied from the finding so recorded by the ld. CIT(A) the assessee preferred the present appeal on the grounds as stated in para 2 above. To support the grounds so raised by the the assessee, he himself appeared and reiterated the facts stated in the written submissions and the same is reproduced herein below. “With reference to the above I have attended hearing fixed on 16.10.2023 at Hearing Bench SMC Jodhpur and as per verbal discussion with the bench they suggest me send by post brief detail of the case and to appear in next hearing date on 20.12.2023. In this connection I write to request your honor as under: I.T.A. No. 40/Jodh/2022 Assessment Year: 2008-09 4 1. I am retired employee of Dena Bank and as a sr. manager on dt. 31.08.2014. from Udaipur 2. That the said Appeal pertain to A.Y. 2008-09 and regarding Demand Due to mismatch of TDSCredit. 3. I have filled my ITR for the AY 2008-09 on dt 18.08.2008 showing Total Income as per ITR of Rs. 392297/- and Tax payable on such income amounting to rs. 34701/- which has been adjusted against TDS Deducted by Dena Bank Bhilwara and Udaipur Branch on salary income for Rs. 36400/- and accordingly claim of Refund of Rs. 1700/-(36400-34700). Copy of ITR and TDS Certificate issued by Udaipur branch are submitted at the time of filling Appeal. 4. The came to know that 4. That it comes to my notice on 16.10.2017 that Refund of A.Y. 2017-18 adjusted against the demand raised on 31.03.2010 for the A.Y. 2008-09. After that I make communication from the IT department regarding demand of A.Y. 2008-09 then the officer give me the intimation order dt. 31.03.2010 its shows the demand of Rs. 44103/-(tax 34700+Int 9403) due to mismatch of TDS. 5. After that I contact Dena Bank Bhilwara and Udaipur Branch as wel as ITO Udaipur and Bhilwara to rectify the TDS Return of the bank so that Total TDS Amount of Rs. 34700/- Accordingly they rectify their TDS return and after showing in Traces I Make application for rectification U/s 154 to the ITO Ward 4 Udaipur on dt. 16.08.2018 and they reject the application on the ground that rectification is more than 4 years old and its not allowable. (Copy of Correspondence made to ITO Udaipur and Bhilwara regarding correction of TDS mismatch and after that matched TDS in TRACES are enclosed)” 6. I would like to state here that IT Department inform me regarding demand of A.Y. 2008-09 in the year 2017 when Refund of A.Y. 2017-18 adjusted against the said demand i.e. After 9 years. 7. After rejection of Rectification request U/S 154 I have filled an Appeal to CIT (A) Appeal Udaipur but same has also been dismissed by CIT (Appeals) National faceless Appeal Centre on dt. 25.03.2021. At that time all my family members were suffering from COVID 19 and its take a year to recover from the COVID as such I Could not Appeal to ITAT within prescribed timelimit. Kindly consider the request for period of serious pandemic situation due to COVID. 8. I would also like to state here that when its come to my knowledge regarding demand of A.Y. 2008-09 I have complete the TDS mismatch issue within 6 month and after that make application for Rectification. I.T.A. No. 40/Jodh/2022 Assessment Year: 2008-09 5 9. That Refund claimed during A.Y. 2017-18 Rs. 18520/- and refund claimed during the A.Y. 2018- 19 Rs. 11060/-has been adjusted against the demand of A.Y. 2008-09. Under the facts and circumstances discussed herein above I would like to request to your kind good self that kindly consider my request as a senior citizen and order the AO to rectify the Order for A.Y. 2008-09and reduce the demand accordingly and refund the amount which has been adjusted U/s 245 duringA.Y. 2017-18 and 2018-19 and oblige me. 7. The ld DR is heard who has relied on the findings of the lower authorities and submitted that the application u/s. 154 of the Act has rightly been rejected by the lower authorities. 8. We have heard the rival contentions and perused the material placed on record. The bench noted that the assessee is retired employee of Dena Bank, he retired as a sr. manager on 31.08.2014. from Udaipur. The assessee filed his return of income for the AY 2008- 09 on dt 18.08.2008 showing Total Income as per ITR of Rs. 392297/- and Tax payable on such income amounting to Rs. 34701/- which has been adjusted against TDS Deducted by Dena Bank Bhilwara and Udaipur Branch on salary income for Rs. 36,400/-and accordingly claim of Refund of Rs. 1700/-(36400-34700). Subsequently, the assessee came to know that his Refund of A.Y. 2017-18 adjusted against the demand raised on 31.03.2010 for the A.Y. 2008-09. On being aware of the fact the assessee made communication from the department I.T.A. No. 40/Jodh/2022 Assessment Year: 2008-09 6 regarding demand of A.Y. 2008-09 then the officer make aware the assessee that there exist a demand vide intimation order dt. 31.03.2010 wherein the demand of Rs. 44103/-(tax 34700+Int 9403) is raised due to mismatch of TDS claimed. Immediately, the assessee started taking the corrective steps and he contacted the Dena Bank Bhilwara and Udaipur Branch as wel as ITO Udaipur and Bhilwara to rectify the TDS Return of the bank so that Total TDS Amount of Rs. 34,700/- gets reflected. On being continuously following up the assessee could get rectified TDS return and after showing in Traces the said credit the assessee made application u/s 154 to the ITO Ward 4 Udaipur on dt. 16.08.2018 and they reject the application on the ground that rectification is more than 4 years old and it’s not allowable. The assessee carried the matter before the ld. CIT (A) Appeal Udaipur but same has also been dismissed by CIT (Appeals) National faceless Appeal Centre on dt. 25.03.2021. At that time all my family members were suffering from COVID 19 and its take a year to recover from the COVID as such I Could not Appeal to ITAT within prescribed time limit.The bench noted that the assessee is a senior citizen and retired from Dena Bank, the purpose of the bench in this appeal is to grant justice to the assessee, though the assessee’s application may get filed after 4 year u/s. 154 of the Act, but the provision of section 155 of very well give powers to the ld. AO to rectify I.T.A. No. 40/Jodh/2022 Assessment Year: 2008-09 7 the apparent credit of taxes to be given as the assessee has taken efforts to get rectified the TDS credit which is matching with the consequential salary offered by the assessee and is supported by the form no. 16 and the online credit of taxes appearing in his account the said tax credit cannot be denied to the assessee and therefore, considering the specific facts placed before us and there is genuine tax credit denied by the ld. AO even the tax credit reflected in the form no. 16 cannot be denied which is denied and demand is raised is required to be rectified and the ld. AO is directed to pass the consequential order giving the tax credit due to the assessee as per the fresh records submitted by the assessee. In terms of these observation the appeal of the assessee is allowed. 9. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 13.03.2024 Sd/- Sd/- (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) Judicial Member Accountant Member Ganesh Kumar, PS (On Tour) Copy of the order forwarded to: I.T.A. No. 40/Jodh/2022 Assessment Year: 2008-09 8 (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By order Date Initial 1. Draft dictated on Sr.PS/PS 2. Draft placed before author Sr.PS/PS 3. Draft proposed & placed before the Second Member JM/AM 4. Draft discussed/approved by Second Member JM/AM 5. Approved Draft comes to the Sr. P.S./P.S. Sr.PS/PS 6. Kept for pronouncement on Sr.PS/PS 7. File sent to the Bench Clerk Sr.PS/PS 8. Date on which file goes to the Head Clerk 9. Date on which file goes to the AR 10. Date of dispatch of Order