Jasjit Singh, New Delhi V. ITO, New Delhi

ITA 4096/DEL/2016

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 3042 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 20-07-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANJAY KUMAR SENIOR
• Keywords: Recovery proceedings; Salary income; TDS; Set aside; Capital Gains
• Section: 244A; 205; 195; 201; 13; 119; 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D : NEW DELHI) BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCE) ITA NO.4096/DEL./2016 (ASSESSMENT YEAR : 2009-10) ITA NO.4097/DEL./2016 (ASSESSMENT YEAR : 2009-10) SHRI JASJIT SINGH, VS. ITO, WARD 41 (1), 29/56, PUNJABI BAGH (WEST), NEW DELHI. NEW DELHI 110 026. (PAN : ABHPS1536P) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SACHIN JAIN, CA REVENUE BY : SHRI SANJAY KUMAR, SENIOR DR DATE OF HEARING : 21.01.2021 DATE OF ORDER : 03.03.2021 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : ITA NO.4096/DEL./2016 VIDE LETTER DATED 21 ST JANUARY, 2021 AND FOR THE REASONS STATED THEREIN, THE ASSESSEE SEEKS TO WITHDRAW THE PRESENT APPEAL BEING ITA NO.4096/DEL/2016. THE DEPARTMENT HAS NO OBJECTION. CONSEQUENTLY, THE PRESENT APPEAL IS DISMISSED AS WI THDRAWN. ITA NO.4096/DEL./2016 ITA NO.4097/DEL./2016 2 ITA NO.4097/DEL./2016 APPELLANT, M/S. JASJIT SINGH (HEREINAFTER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL SOUGHT TO S ET ASIDE THE IMPUGNED ORDER DATED 13.06.2016 PASSED BY THE COMMI SSIONER OF INCOME-TAX (APPEALS)-14, NEW DELHI QUA THE ASSESSME NT YEAR 2009-10 ON THE GROUNDS INTER ALIA THAT :- 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE, BOTH THE LOWER AUTHORITIES GROSSLY ERRED BY NOT ALLOWING THE CREDIT OF TDS AMOUNTING TO RS.2,04,96,655/- DEDUCTED OUT OF I NCOME. 2. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CA SE, LD. AO WAS GROSSLY ERRED IN LAW BY NOT MAKING ANY ENQUI RY FROM THE DEDUCTOR AND ALSO NOT TAKING ANY ACTION AS PRES CRIBED UNDER THE INCOME TAX ACT DESPITE SEVERAL REQUESTS M ADE BY THE ASSESSEE AND ALSO DESPITE DIRECTIONS GIVEN BY THE C IT (APPEALS). 3. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE, BOTH THE LOWER AUTHORITIES GROSSLY ERRED IN NOT FOLLOWIN G THE ORDERS OF THE HIGHER AUTHORITIES. 4. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CA SE, LD. AO GROSSLY ERRED IN ADJUSTING THE AMOUNT OF RS.50,0 0,000/- WHICH WAS GRANTED AS REFUND BY AO, WITHOUT GIVING A NY INTIMATION TO THAT EFFECT. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ASSESSEE, A NON-RESIDENT INDIAN HOLDING A BRITISH PASSPORT, WAS ASSESSED UNDER SECTION 143 (3 ) OF THE INCOME- TAX ACT, 1961 (FOR SHORT THE ACT) VIDE ORDER DAT ED 29.12.2010 AT THE TOTAL TAXABLE INCOME OF RS.18,79,45,700/-. THE REAFTER, HE APPROACHED THE LD. CIT (A) WHO VIDE ORDER DATED 31. 01.2012 HAS PARTLY ALLOWED THE APPEAL. IN THE QUANTUM APPEAL D ECIDED VIDE ITA NO.4096/DEL./2016 ITA NO.4097/DEL./2016 3 ORDER DATED 31.01.2012, LD. CIT (A) HAS ALSO DENIED THE CREDIT OF TDS DEDUCTED ON ACCOUNT OF CAPITAL GAINS BY THE KOU TONS GROUP IN CASE OF ASSESSEE BUT NOT DEPOSITED WITH THE STATE E XCHEQUER. THEREAFTER, THE ASSESSEE FILED RECTIFICATION APPLIC ATION U/S 154/143(1) OF THE ACT, AVAILABLE AT PAGES 138 TO 14 0 OF THE PAPER BOOK, SEEKING RECTIFICATION OF THE CLERICAL ERROR A S TO APPLYING RATE OF TAX @ 20% ON THE CAPITAL GAIN AS AGAINST ADMISSI BLE RATE OF TAX @ 10% ON CAPITAL GAIN IN CASE OF NON-RESIDENT INDIA N AND ALSO SOUGHT RECTIFICATION AS TO GIVING CREDIT OF TDS DED UCTED ON ACCOUNT OF CAP GAIN BY KOUTONS GROUP TO THE TUNE OF RS.2,04 ,96,655/-. RECTIFICATION APPLICATION WAS PARTLY ALLOWED. 3. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) BY WAY OF FILING THE APPEAL WHO HAS PARTLY ALLOWED THE APPEAL . FEELING AGGRIEVED BY THE ORDER PASSED BY THE LD. CIT (A), THE ASSESSE E HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS RELIED UP ON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN THE LIGHT OF TH E FACTS AND CIRCUMSTANCES OF THE CASE. 5. UNDISPUTEDLY, ASSESSEE, BEING A NON-RESIDENT IND IAN HOLDING A BRITISH PASSPORT, SOLD 25% SHAREHOLDING IN KOUTON S GROUP, A PRIVATE LIMITED COMPANY FOR A TOTAL SALE CONSIDERAT ION OF ITA NO.4096/DEL./2016 ITA NO.4097/DEL./2016 4 RS.19,89,96,655/-. IT IS ALSO NOT IN DISPUTE THAT AFTER DEDUCTING THE TDS @ 10.3% I.E. RS.2,04,96,655/-, NET SALE CONSIDE RATION RECEIVED BY THE ASSESSEE COMES TO RS.17,85,00,000/-. IT IS ALSO NOT IN DISPUTE THAT DURING THE SEARCH PROCEEDINGS OF KOUTO NS GROUP OF CASES, STATEMENT OF ASSESSEE WAS RECORDED U/S 131 O F THE ACT WHEREIN HE HAS STATED THAT HE RECEIVED TOTAL PAYMEN T OF RS.17,85,00,000/-. IT IS ALSO NOT IN DISPUTE THAT TAX DEDUCTED AT SOURCE ON ACCOUNT OF CAPITAL GAIN ON SALE OF 25% SH AREHOLDING IN A PRIVATE COMPANY TO THE TUNE OF RS.2,04,96,655/- BY THE DEDUCTOR HAS NOT BEEN DEPOSITED BY KOUTONS GROUP WITH THE ST ATE EXCHEQUER. IT IS ALSO NOT IN DISPUTE THAT NO TDS CERTIFICATE H AS BEEN ISSUED TO THE ASSESSEE BY THE DEDUCTOR. 5.1 CONSIDERING THE FACTS AND CIRCUMSTANCES DISCUSS ED IN THE PRECEDING PARAS, LD. CIT (A) GAVE PART RELIEF TO TH E ASSESSEE TO THE EXTENT THAT THE ASSESSEE CANNOT BE TREATED AS ASSE SSEE IN DEFAULT IN RESPECT OF TAX DEMAND OF RS.18,02,937/- BUT HAS NOT GIVEN THE CREDIT OF TDS TO THE ASSESSEE ON THE GROUND THAT TD S AMOUNT HAS NOT BEEN DEPOSITED IN THE STATE EXCHEQUER BY KOUTON S GROUP BY RETURNING FOLLOWING FINDINGS :- I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLAN T AS WELL AS THE FINDINGS OF THE LD. AO, HIGHER APPELLAT E AUTHORITIES AND THE HON'BLE COURTS. THE LD. AR HAS RELIED ON TH E JUDICIAL PRONOUNCEMENT MENTIONED ABOVE. IN VIEW OF WHAT IS S TATED ABOVE IT IS AMPLY CLEAR THAT THE ASSESSEE CANNOT BE TREATED AS ITA NO.4096/DEL./2016 ITA NO.4097/DEL./2016 5 ASSESSEE IN DEFAULT IN RESPECT OF NON DEPOSIT OF TDS BY KOUTONS GROUPS AND ONLY KOUTONS GROUPS CAN BE TREAT ED AS ASSESSEE IN DEFAULT IN TERMS OF PROVISION OF SECTIO N 201 OF THE INCOME TAX ACT AND TAX DEDUCTED BY THEM FROM THE LO NG TERM CAPITAL GAIN ON SALE OF SHARES BY THE ASSESSEE CAN ONLY BE RECOVERED 'FROM THEM. ACCORDINGLY IN RESPECT OF TAX DEMAND OF RS.18,02,937/- THE ASSESSEE SHOULD NOT BE TREATED A S ASSESSEE IN DEFAULT. KEEPING INTO CONSIDERATION THE ENTIRETY OF THE FACT S AND CIRCUMSTANCES OF THE APPELLANT'S CASE AND THE DECIS IONS RELIED ON BY THE LD. AR I AM OF THE OPINION THAT THE AO MA Y TAKE NECESSARY STEPS FOR RECOVERY OF TOS AMOUNT FROM THE DEDUCTOR AS PER THE PROVISIONS OF THE ACT AND THE ASSESSEE C ANNOT BE TREATED AS 'ASSESSEE IN DEFAULT' IN RESPECT OF NON DEPOSIT OF TDS BY M/S KOUTONS GROUPS AND ONLY KOUTONS GROUPS CAN B E TREATED AS ASSESSEE IN DEFAULT IN TERMS OF PROVISIO N OF SECTION 201 OF THE ACT AND TAX DEDUCTED BY THEM FROM THE LO NG TERM CAPITAL GAIN 'ON SALE OF SHARES BY THE ASSESSEE CAN ONLY BE RECOVERED FROM THEM. HOWEVER, THE CREDIT OF THE TDS HAS TO BE GIVEN AS PER THE PROVISIONS OF SECTION 199 OF THE A CT READ WITH RULE 37BA OF THE IT RULES, 1962. AS PER THE PROVISI ONS OF THE ACT THE CREDIT HAS TO BE GIVEN ONLY IF THE INCOME I S OFFERED FOR THE TAXATION AND THE TAX SO DEDUCTED IS CREDITED IN THE GOVT. ACCOUNT. HENCE, THE CREDIT OF TDS CANNOT BE GIVEN T O THE APPELLANT BECAUSE THE TDS AMOUNT HAS NOT BEEN DEPOS ITED IN THE GOVT. ACCOUNT AND THIS FACT HAS BEEN CONCEDED B Y THE LD. AR IN HIS WRITTEN SUBMISSIONS MENTIONED ABOVE THAT THE TAX WHICH WAS DEDUCTED BY M/S KOUTONS GROUPS WAS NOT DE POSITED BY M/S KOUTONS GROUPS WITH THE GOVT. AUTHORITIES. THE CHARGING OF INTEREST U/SS 2348, 234C AND 2340 O F THE ACT IS MANDATORY AND CONSEQUENTIAL AS PER THE DECIS ION OF THE HONOURABLE SUPREME COURT IN THE CASE OF CIT VS. ANJ UM M.H. GHASWALA (2001) 119 TAXMAN 352 (SC) AND NOTHIN G TO CONTRARY HAS BEEN MENTIONED BY THE APPELLANT. ACCOR DINGLY, THE LD. A.O. IS DIRECTED TO GIVE CONSEQUENTIAL EFFE CT REGARDING INTEREST CHARGEABLE UNDER THE ABOVE SECTIONS WHILE GIVING EFFECT TO THIS ORDER. HENCE, THE GROUNDS OF APPEAL ARE PA RTLY ALLOWED. 6. IN THE BACKDROP OF THE AFORESAID FACTS AND CIRCU MSTANCES OF THE CASE AND ORDER PASSED BY THE LD. LOWER REVENUE AUTHORITIES, THE SOLE QUESTION ARISES FOR DETERMINATION IN THIS CASE IS :- ITA NO.4096/DEL./2016 ITA NO.4097/DEL./2016 6 AS TO WHETHER ASSESSEE WHOSE TDS ON ACCOUNT OF CAP ITAL GAINS WAS DEDUCTED BY M/S. KOUTONS GROUP BUT NOT DEPOSITE D WITH THE STATE EXCHEQUER, IS ENTITLED TO CREDIT OF TDS? 7. IT IS THE STATUTORY PRINCIPLE OF LAW THAT UNDER SECTION 195 OF THE ACT, ANY PERSON RESPONSIBLE FOR PAYING TO A NON -RESIDENT, AS IN THE PRESENT CASE, SHALL AT THE TIME OF CREDIT OF SU CH INCOME TO THE ACCOUNT OF PAYEE, DEDUCT INCOME-TAX THEREON AT THE RATES IN FORCE. 8. UNDER SECTION 205 OF THE ACT, WHEN TAX IS DEDUCT IBLE AT SOURCE, THE ASSESSEE SHALL NOT BE CALLED UPON TO PA Y THE TAX HIMSELF TO THE EXTENT TO WHICH TAX HAS BEEN DEDUCTED FROM T HAT INCOME. 9. EVEN THE OFFICE MEMORANDUM ISSUED BY CENTRAL BOA RD OF DIRECT TAXES (CBDT) ISSUED VIDE F.NO.275/29/2014-IT (B) DATED 11 TH MARCH, 2016 IS CATEGORIC ENOUGH QUA THE ISSUE IN C ONTROVERSY WHEREIN IT IS DIRECTED THAT DEMANDS CREATED ON ACCO UNT OF MISMATCH OF CREDIT DUE TO NON-PAYMENT OF TDS AMOUNT TO THE C REDIT OF GOVERNMENT BY THE DEDUCTOR BE NOT ENFORCED. THE OF FICE MEMORANDUM IS EXTRACTED FOR READY PERUSAL AS UNDER :- F.NO. 275/29/2014-IT (B) GOVERNMENT OF INDIA MINISTRY OF FINANCE CENTRAL BOARD OF DIRECT TAXES (CBDT) NEW DELHI, DATED: 11TH MARCH, 2016 OFFICE MEMORANDUM SUB: NON-DEPOSIT OF TAX DEDUCTED AT SOURCE BY THE D EDUCTOR- RECOVERY OF DEMAND AGAINST THE DEDUCTEE ASSESSEE. ITA NO.4096/DEL./2016 ITA NO.4097/DEL./2016 7 VIDE LETTER OF EVEN NUMBER DATED 01.06.2015, THE BO ARD HAD ISSUED DIRECTIONS TO THE FIELD OFFICERS THAT IN CASE OF AN ASSESSEE WHOSE TAX HAS BEEN DEDUCTED AT SOURCE BUT NOT DEPOSITED TO THE GOVERNMENTS ACCOUNT BY THE DEDUCT OR, THE DEDUCTEE ASSESSEE SHALL NOT BE CALLED UPON TO PAY T HE DEMAND TO THE EXTENT TAX HAS BEEN DEDUCTED FROM HIS INCOME. I T WAS FURTHER SPECIFIED THAT SECTION 205 OF THE INCOME-TA X ACT, 1961 PUTS A BAR ON DIRECT DEMAND AGAINST THE ASSESSEE IN SUCH CASES AND THE DEMAND ON ACCOUNT OF TAX CREDIT MISMATCH IN SUCH SITUATIONS CANNOT BE ENFORCED COERCIVELY. 2. HOWEVER, INSTANCES HAVE COME TO THE NOTICE OF T HE BOARD THAT THESE DIRECTIONS ARE NOT BEING STRICTLY FOLLOW ED BY THE FIELD OFFICERS. 3. IN VIEW OF THE ABOVE, THE BOARD HEREBY REITERAT ES THE INSTRUCTIONS CONTAINED IN ITS LETTER DATED 01.06.20 15 AND DIRECTS THE ASSESSING OFFICERS NOT TO ENFORCE DEMANDS CREAT ED ON ACCOUNT OF MISMATCH OF CREDIT DUE TO NON-PAYMENT OF TDS AMOUNT TO THE CREDIT OF THE GOVERNMENT BY THE DEDUC TOR. THESE INSTRUCTIONS MAY BE BROUGHT TO THE NOTICE OF ALL AS SESSING OFFICERS IN YOUR REGION FOR COMPLIANCE. THIS ISSUES WITH THE APPROVAL OF MEMBER (REVENUE &TPS). SD/- (SANDEEP SINGH) UNDER SECRETARY (BUDGET) 10. BY APPLYING THE AFORESAID PROVISIONS CONTAINED U/SS 195 AND 205 OF THE ACT, LD. CIT (A) REACHED THE CONCLUSION THAT THE ASSESSEE CANNOT BE TREATED AS ASSESSEE IN DEFAULT IRRESPEC TIVE OF NON- DEPOSIT OF TDS BY THE DEDUCTOR, KOUTONS GROUP. BUT LD. CIT (A) HAS ERRED IN HOLDING THAT, THE CREDIT OF TDS CANNO T BE GIVEN TO THE ASSESSEE BECAUSE TDS SO DEDUCTED HAS NOT BEEN DEPOS ITED BY THE KOUTONS GROUP WITH THE STATE EXCHEQUER. 11. LEGISLATIVE INTENT OF SECTIONS 195 AND 205 OF T HE ACT, PURSUANT TO WHICH OFFICE MEMORANDUM (SUPRA) HAS BEE N ISSUED BY ITA NO.4096/DEL./2016 ITA NO.4097/DEL./2016 8 THE CBDT, IS THAT THE ASSESSEE WHOSE TAX HAS BEEN D EDUCTED BY THE DEDUCTOR U/S 195 OF THE ACT, HE (ASSESSEE) SHALL NO T BE TREATED AS ASSESSEE IN DEFAULT AND FRESH DEMAND ON ACCOUNT O F MISMATCH OF CREDIT DUE TO NON-DEPOSIT OF TDS AMOUNT BY THE DEDU CTOR SHALL NOT BE ENFORCED AND CREDIT OF TDS DEDUCTED SHALL BE GIV EN TO HIM IRRESPECTIVE OF THE FACT THAT TDS SO DEDUCTED HAS N OT BEEN DEPOSITED WITH THE STATE EXCHEQUER BY THE DEDUCTOR. 12. HONBLE HIGH COURT OF GUJARAT IN CASE OF DEVARSH PRAVINBHAI PATEL VS. ACIT, CIRCLE 5(1)(1) JUDGMENT DATED 24.09.2018 DEALT WITH THE IDENTICAL ISSUE BY RETURNING FOLLOW ING FINDINGS : 3. WE HAVE HEARD LEARNED COUNSEL FOR THE PARTIES AND PERUSED DOCUMENTS ON RECORD. BASIC FACTS ARE NO T IN DISPUTE. IN CASE OF THE PETITIONER THE EMPLOYER FOR THE ASSESSMENT YEAR 201213 WHILE PAYING SALARY HAD DEDUCTED TAX AT SOURCE TO THE TUNE OF RS.2,68,498/ BUT HAD NOT DEPOSITED SUCH TAX WITH THE GOVERNMENT REVENUE. THE SHORT QUESTION IS UNDER SUCH CIRCUMSTANCES CAN THE DEPARTMENT SEEK TO RECOVER SU CH AMOUNT FROM THE PETITIONER OR WHETHER THE PETITIONE R IS CORRECT IN CONTENDING THAT HE HAD ALREADY SUFFERED THE DEDUCTION OF TAX, THE MERE FACT THAT THE DEDUCTEE D ID NOT DEPOSIT SUCH TAX WITH THE GOVERNMENT REVENUE COULD NOT PERMIT THE INCOME TAX DEPARTMENT TO RECOVER SUC H AMOUNT FROM THE PETITIONER. 4. THE ISSUE IS NO LONGER RES INTEGRA. THE DIVISIO N BENCH OF THIS COURT IN CASE OF SUMIT DEVENDRA RAJAN I (SUPRA) EXAMINED THE STATUTORY PROVISIONS AND IN ITA NO.4096/DEL./2016 ITA NO.4097/DEL./2016 9 PARTICULAR SECTION 205 OF THE INCOME-TAX ACT, 1961. THE COURT CONCURRED WITH THE VIEW OF THE BOMBAY HIGH COURT IN CASE OF ASST. CIT VS. OM PRAKASH GATTANI, REPORTED IN (2000) 242 ITR 638 AND OBSERVED AS UNDE R : 10. WE ARE IN COMPLETE AGREEMENT WITH THE VIEW TAKEN BY THE BOMBAY HIGH COURT AND GAUHATI HIGH COURT. APPLYING THE AFORESAID TWO DECISIONS OF THE BOMBAY HIGH COURT AS WELL AS GAUHATI HIGH COURT, THE FACTS OF THE CASE ON HAND AND EVEN CONSIDERING SECTION 205 OF THE ACT ACTION OF THE RESPONDENT IN NOT GIVING THE CREDIT OF THE TAX DEDUCTED AT SOURCE FOR WHICH FORM NO.16 A HAVE BEEN PRODUCED BY THE ASSESSEE DEDUCTEE AND CONSEQUENTLY IMPUGNED DEMAND NOTICE ISSUED UNDER SECTION 221(1) OF THE ACT CANNOT BE SUSTAINED. CONCERNED RESPONDENT THEREFORE, IS REQUIRED TO BE DIRECTED TO GIVE CREDIT OF TAX DEDUCTED AT SOURCE TO THE ASSESSEE DEDUCTEE OF THE AMOUNT FOR WHICH FORM NO.16 A HAVE BEEN PRODUCED. 11. IN VIEW OF THE ABOVE AND FOR THE REASONS STATED PETITION SUCCEEDS. IT IS HELD THAT THE PETITIONER ASSESSEE DEDUCTEE IS ENTITLED TO CREDIT OF THE TAX DEDUCTED AT SOURCE WITH RESPECT TO AMOUNT OF TDS FOR WHICH FORM NO.16A ISSUED BY THE EMPLOYER DEDUCTOR M/S. AMAR REMEDIES LIMITED HAS BEEN PRODUCED AND CONSEQUENTLY DEPARTMENT IS DIRECTED TO GIVE CREDIT OF TAX DEDUCTED AT SOURCE TO THE PETITIONER ASSESSEE DEDUCTEE TO THE EXTENT FORM NO.16 A ISSUED BY THE DEDUCTOR HAVE BEEN ISSUED. CONSEQUENTLY, THE IMPUGNED DEMAND NOTICE DATED 6.1.2012 (ANNEXURE D) IS QUASHED AND SET ASIDE. HOWEVER, IT IS CLARIFIED AND OBSERVED THAT IF THE DEPARTMENT IS OF THE OPINION DEDUCTOR HAS NOT DEPOSITED THE SAID AMOUNT OF TAX DEDUCTED AT SOURCE, IT WILL ALWAYS BEEN OPEN FOR THE DEPARTMENT TO RECOVER ITA NO.4096/DEL./2016 ITA NO.4097/DEL./2016 10 THE SAME FROM THE DEDUCTOR. RULE IS MADE ABSOLUTELY TO THE AFORESAID EXTENT. IN THE FACTS AN D CIRCUMSTANCES OF THE CASE, THERE SHALL BE NO ORDER AS TO COSTS. 5. FACTS IN BOTH CASE ARE VERY SIMILAR. UNDER THE CIRCUMSTANCES, BY ALLOWING THESE PETITIONS WE HOLD THAT THE DEPARTMENT CANNOT DENY THE BENEFIT OF TAX DEDUC TED AT SOURCE BY THE EMPLOYER OF THE PETITIONER DURING THE RELEVANT FINANCIAL YEARS. CREDIT OF SUCH TAX WOULD BE GIVEN TO THE PETITIONER FOR THE RESPECTIVE YEARS. I F THERE HAS BEEN ANY RECOVERY OR ADJUSTMENT OUT OF THE REFU NDS OF THE LATER YEARS, THE SAME SHALL BE RETURNED TO T HE PETITIONER WITH STATUTORY INTEREST. 13. FOLLOWING THE DECISION RENDERED BY THE HONBLE GUJARAT HIGH COURT DISCUSSED IN THE PRECEDING PARA AND IN V IEW OF THE STATUTORY PROVISIONS CONTAINED UNDER SECTIONS 195 A ND 205 OF THE ACT, WE ARE OF THE CONSIDERED VIEW THAT WHEN REVENU E DEPARTMENT HAS ACCEPTED THE FACT THAT THE TDS TO THE TUNE OF R S.2,04,96,655/- OF THE ASSESSEE WAS DEDUCTED BY THE DEDUCTOR, THOUG H NOT DEPOSITED WITH THE STATE EXCHEQUER, ASSESSEE CANNOT BE CONSID ERED AS ASSESSEE IN DEFAULT. SO, AT THE SAME TIME, REVEN UE CANNOT DENY THE ASSESSEE BENEFIT OF TAX DEDUCTED AT SOURCE BECA USE INCOME-TAX ACT IS A COMPLETE CODE IN ITSELF. REVENUE DEPARTMEN T IS UNDER STATUTORY OBLIGATION TO RECOVER TDS DEDUCTED BY KOU TONS GROUP BY RESORTING TO COERCIVE METHOD, IF NEED BE. ITA NO.4096/DEL./2016 ITA NO.4097/DEL./2016 11 14. ANOTHER ISSUE RAISED BY THE ASSESSEE FOR ADJUDI CATION IS THAT THE AO HAS FAILED TO ISSUE REFUND OF RS.50,00,000/- DEPOSITED AS PER THE DIRECTIONS OF HONBLE DELHI HIGH COURT VIDE ORDER DATED 01.12.2011 DESPITE PASSING ORDER OF APPEAL EFFECT D ATED 31.01.2012 BY THE AO AND SAME IS LIABLE TO BE REFUNDED TO THE ASSESSEE ALONG WITH INTEREST U/S 244A OF THE ACT. 15. UNDISPUTEDLY, VIDE ORDER DATED 01.12.2011 PASSE D BY THE HONBLE HIGH COURT OF DELHI IN WRIT PETITION (C) 84 52/2011 IN CASE OF ASSESSEE, AMOUNT OF RS.50,00,000/- WAS DEPO SITED ON 20.12.2011 AND REMAINING AMOUNT OF RS.50,00,000/- E ACH WAS TO BE DEPOSITED ON 15.02.2012 & 15.04.2012. HOWEVER, VIDE ORDER DATED 07.03.2012, COPY OF WHICH IS AVAILABLE AT PAG ES 19 TO 21 OF THE SECOND PAPER BOOK, HONBLE HIGH COURT DISPENSED WITH THE CONDITION OF DEPOSITING AMOUNT OF RS.50,00,000/- EA CH ON OR BEFORE 15.02.2012 & 15.04.2012. IT IS ALSO NOT IN DISPUTE THAT WHILE GIVING EFFECT TO THE ORDER DATED 31.01.2012 PASSED BY THE LD. CIT(A) IN QUANTUM APPEAL FILED BY THE ASSESSEE, AO HAS PASSED AN ORDER DATED 27.01.2015 IN THE FORM OF ITNS-150 MAKI NG ORDER TO REFUND AN AMOUNT OF RS.50,00,000/- ALONG WITH INTER EST OF RS.9,25,000/- (TOTAL RS.59,25,000/-), AVAILABLE AT PAGE 10 OF THE SECOND PAPER BOOK, WHICH IS EXTRACTED AS UNDER :- ITA NO.4096/DEL./2016 ITA NO.4097/DEL./2016 12 ITA NO.4096/DEL./2016 ITA NO.4097/DEL./2016 13 16. WHEN WE EXAMINE THE FACTS AS TO DEDUCTING TAX A T SOURCE TO THE TUNE OF RS.2,04,96,695/- BY M/S. KOUTONS GROUP ON ACCOUNT OF CAPITAL GAINS EARNED BY THE ASSESSEE, THOUGH NOT DE POSITED WITH THE STATE EXCHEQUER AND THE FACT THAT SUBSEQUENTLY, ASS ESSEE WAS MADE TO DEPOSIT RS.50,00,000/- WITH THE REVENUE DEPARTME NT AS PER ORDER OF THE HONBLE DELHI HIGH COURT, IT HAS BECOM E APPARENTLY CLEAR THAT DUE TO APATHY OF THE REVENUE DEPARTMENT, ASSESSEE HAS BEEN PUSHED TO PROTRACTED LITIGATION SINCE 2010 AS HE IS RUNNING FROM PILLAR TO POST TO GET REFUND OTHERWISE ADMISSI BLE TO HIM. 17. AS DISCUSSED IN THE PRECEDING PARAS, WHEN REVEN UE DEPARTMENT ITSELF HAS ACCEPTED THAT TDS TO THE TUNE OF RS.2,04,96,695/- OF ASSESSEE WAS DEDUCTED BY THE KO UTONS GROUP THOUGH NOT DEPOSITED WITH THE STATE EXCHEQUER, THE ASSESSEE CANNOT BE TREATED AS ASSESSEE IN DEFAULT AND AS SUCH CAN NOT BE DENIED THE CREDIT THEREOF WITH CONSEQUENTIAL REFUND. WHEN DED UCTOR OF TDS, KOUTONS GROUP IN THIS CASE, MADE A DEDUCTION UNDER STATUTORY OBLIGATION ON BEHALF OF THE REVENUE AS ITS AGENT, I N CASE, THERE IS ANY OMISSION ON THE PART OF THE DEDUCTOR IN DEPOSIT ING THE TAX DEDUCTED AT SOURCE, IT IS LIABLE TO BE PROSECUTED U /S 409 OF THE INDIAN PENAL CODE BEING AN AGENT OF REVENUE DEPARTM ENT. ITA NO.4096/DEL./2016 ITA NO.4097/DEL./2016 14 18. IT IS PERTINENT TO MENTION HERE THAT THE REVENU E DEPARTMENT HAS NOT TAKEN ANY ACTION UNDER THE ACT OR UNDER THE INDIAN PENAL CODE AGAINST THE KOUTONS GROUP RATHER ASSESSEE HAD FILED A COMPLAINT WITH THE CONCERNED POLICE STATION, AVAILA BLE AT PAGES 128 TO 133 OF THE PAPER BOOK, AGAINST KOUTONS GROUP AND ITS DIRECTORS FOR ILLEGAL MISAPPROPRIATION OF AN AMOUNT OF RS.2,0 4,96,695/- AND THIS INTIMATION WAS GIVEN TO THE REVENUE DEPARTMENT . STRANGELY ENOUGH, REVENUE DEPARTMENT HAS NOT MOVED THE LAW IN TO MOTION EVEN AFTER FILING THE COMPLAINT BY THE ASSESSEE. 19. HONBLE HIGH COURT OF BOMBAY IN CASE OF PUSHKAR PRABHAT CHANDRA JAIN VS. UOI (2019) 103 TAXMANN.COM 106 (BO MBAY) WHILE DECIDING THE IDENTICAL ISSUE DIRECTED THE REV ENUE DEPARTMENT TO MAKE COERCIVE RECOVERY OF SUCH UNPAID TAX FROM T HE DEDUCTOR AND TO REFUND THE AMOUNT TO THE ASSESSEE WITHIN FOU R WEEKS BY RETURNING FOLLOWING FINDINGS :- 6. FACTS ON RECORD ARE NOT SERIOUSLY IN DISPUTE. AS NOTED, THE PETITIONER SOLD AN IMMOVABLE PROPERTY FOR SALE CONSIDERATION OF RS.9 CRORES. THE PURCHASERS PAID O NLY RS. 8 CRORES 91 LAKHS RETAINING RS. 9 LAKHS TOWARDS TDS. THE DEPARTMENT DOES NOT ARGUE THAT THIS AMOUNT OF RS. 9 LAKHS SO DEDUCTED IS NOT IN TUNE WITH THE STATUTORY REQUIREM ENTS. IT APPEARS UNDISPUTED THAT THE DEDUCTORS DID NOT DEPOS ITING SUCH AMOUNT IN THE GOVERNMENT REVENUE. UNDER THE CIRCUMS TANCES, THE PETITIONER IS ASKED TO PAY THE SAID SUM AGAIN, SINCE THE DEPARTMENT HAS NOT RECOGNIZED THIS TDS CREDIT IN FA VOUR OF THE PETITIONER. 7. SECTION 205 OF THE ACT CARRIES THE CAPTION 'BAR AGAINST DIRECT DEMAND ON ASSESSEE'. THE SECTION PROVIDES TH AT WHERE ITA NO.4096/DEL./2016 ITA NO.4097/DEL./2016 15 TAX IS DEDUCTED AT THE SOURCE UNDER THE PROVISIONS OF CHAPTER XVII, THE ASSESSEE SHALL NOT BE CALLED UPON TO PAY THE TAX HIMSELF TO THE EXTENT TO WHICH TAX HAS BEEN DEDUCTE D FROM THAT INCOME. THIS PROVISION CAME UP FOR CONSIDERATION BE FORE DIVISION BENCH OF THIS COURT IN CASE OF YASHPAL SAH NI V. REKHA HAJARNAVIS ASSTT. CIT [2007] 165 TAXMAN 144/293 ITR 539. IT WAS A CASE WHERE THE EMPLOYER WHILE PAYING SALARY T O THE EMPLOYEE HAD DEDUCTED TAX AT SOURCE RS. 6.66 LAKHS. SUBSEQUENTLY, DISPUTES AROSE BETWEEN THE EMPLOYER A ND EMPLOYEE DUE TO WHICH SERVICE OF THE EMPLOYEE WAS T ERMINATED. THE EMPLOYEE FILED THE RETURN OF INCOME CLAIMING CR EDIT OF TDS OF RS. 6.66 LAKHS. THE ASSESSING OFFICER ISSUED INTIMATION UNDER SECTION 143(1)(A) OF THE ACT DENYING CREDIT O F TDS OF RS. 6.66 LAKHS ON THE GROUND THAT SUCH AMOUNT WAS N OT DEPOSITED BY THE EMPLOYER. THIS COURT IN SUCH BACKG ROUND AFTER REFERRING TO SECTION 205 OF THE ACT HELD AND OBSERVED AS UNDER:-- '20. FROM THE LANGUAGE OF SECTION 205, IT IS CLEAR THAT ONCE THE TAX IS DEDUCTED AT SOURCE, THE SAME C ANNOT BE LEVIED ONCE AGAIN ON THE ASSESSEE WHO HAS SUFFER ED THE DEDUCTION. ONCE IT IS ESTABLISHED THAT THE TAX HAS BEEN DEDUCTED AT SOURCE FROM THE SALARY OF THE EMPLOYEE, THE BAR UNDER SECTION 205 OF THE ACT COME S INTO OPERATION AND IT IS IMMATERIAL AS TO WHETHER T HE TAX DEDUCTED AT SOURCE HAS BEEN PAID TO THE CENTRAL GOVERNMENT OR NOT, BECAUSE ELABORATE PROVISIONS ARE MADE UNDER THE ACT FOR RECOVERY OF TAX DEDUCTED AT SOURCE FROM THE PERSON WHO HAS DEDUCTED SUCH TAX. 21. IN THE PRESENT CASE, THE PETITIONER ASSESSEE H AS FURNISHED MONTHLY PAY SLIPS AND BANK STATEMENTS TO SHOW THAT FROM HIS SALARY TAX WAS DEDUCTED AT SOURC E BY THE EMPLOYER - RESPONDENT NO. 6. AUTHENTICITY OF TH E SAID PAY SLIPS AND BANK STATEMENTS HAVE NOT BEEN DISPUTED BY THE REVENUE. THUS, IT IS CLEAR THAT THE TAX HAS BEEN DEDUCTED AT SOURCE BY THE RESPONDENT NO. 6 FROM THE SALARY PAID TO THE PETITIONER. THEREFORE, THE ONLY QUESTION TO BE CONSIDERED IS, IF THE EMPLOYER- RESPONDENT NO. 6 HAS FAILED TO DEPOSIT THE TAX DEDU CTED AT SOURCE FROM THE SALARY INCOME OF THE PETITIONER TO THE CREDIT OF THE CENTRAL GOVERNMENT, WHETHER THE REVEN UE CAN RECOVER THE TDS AMOUNT WITH INTEREST ONCE AGAIN FROM THE PETITIONER? 22. IN THE PRESENT CASE, THOUGH THE RESPONDENT NO. 6 HAS DEDUCTED THE TAX AT SOURCE FROM THE SALARY INCO ME ITA NO.4096/DEL./2016 ITA NO.4097/DEL./2016 16 OF THE PETITIONER, THE RESPONDENT NO. 6 HAS NOT ISS UED THE TDS CERTIFICATE IN FORM NO. 16 TO THE PETITIONE R. AS A RESULT, THE PETITIONER IS NOT ENTITLED TO AVAIL C REDIT OF THE TAX DEDUCTED AT SOURCE. HOWEVER, ONCE IT IS ESTABLISHED THAT THE TAX HAS BEEN DEDUCTED AT SOURC E, THE BAR UNDER SECTION 205 OF THE ACT COMES INTO OPERATION AND THE REVENUE IS BARRED FROM RECOVERING THE TDS AMOUNT ONCE AGAIN FROM THE EMPLOYEE FROM WHOSE INCOME, TDS AMOUNT HAS BEEN DEDUCTED. IT IS PERTINENT TO NOTE THAT THE PURPOSE OF ISSUING TDS CERTIFICATE UNDER SECTION 203 OF THE ACT IS TO ENAB LE THE ASSESSEE TO AVAIL CREDIT OF THE TAX DEDUCTED AT SOU RCE IN THE RELEVANT ASSESSMENT YEAR. IF THE TDS CERTIFICAT E IS NOT ISSUED, THEN UNDER SECTION 199 OF THE ACT, THE ASSESSEE FROM WHOSE INCOME, TAX HAS BEEN DEDUCTED A T SOURCE WILL NOT BE ENTITLED TO TAKE CREDIT OF THE S AID AMOUNT. IN THAT EVENT, ON ACCOUNT OF THE NON AVAILABILITY OF THE CREDIT, THE ASSESSEE WOULD BE L IABLE TO PAY TAX ONCE AGAIN EVEN THOUGH THE TAX WAS DEDUCTED AT SOURCE. THUS, IT WOULD BE A CASE OF DOUBLE TAXATION WHICH IS NOT PERMISSIBLE IN LAW. TO AVOID SUCH ANOM ALY, SECTION 205 HAS BEEN ENACTED, TO THE EFFECT THAT, O NCE THE TAX IS DEDUCTED AT SOURCE BY THE EMPLOYER-COMPA NY, THEN, THE PERSON FROM WHOSE INCOME, THE TAX HAS BEE N DEDUCTED AT SOURCE SHALL NOT BE CALLED TO PAY THE S AID TAX AGAIN. FROM THE LANGUAGE OF SECTION OF 205 OF T HE ACT, IT IS CLEAR THAT THE BAR OPERATES AS SOON AS I T IS ESTABLISHED THAT THE TAX HAS BEEN DEDUCTED AT SOURC E AND IT IS WHOLLY IRRELEVANT AS TO WHETHER THE TAX DEDUCTED AT SOURCE IS PAID TO THE CREDIT OF CENTRAL GOVERNMENT OR NOT AND WHETHER TDS CERTIFICATE IN FORM NO. 16 HAS BEEN ISSUED OR NOT. ALSO THE MERE F ACT THAT THE EMPLOYER MAY NOT ISSUE TDS CERTIFICATE TO THE EMPLOYEE DOES NOT MEAN THAT THE LIABILITY OF THE EMPLOYER CEASES. THE LIABILITY TO PAY INCOME TAX IF DEDUCTED AT SOURCE IS UPON THE EMPLOYER. 23. AS HELD BY THE GAUHATI HIGH COURT IN THE COURS E OF OMPRAKASH GATTANI (SUPRA), ONCE THE MODE OF COLLECTING TAX BY DEDUCTION AT SOURCE IS ADOPTED, T HAT MODE ALONE IS TO BE ADOPTED FOR RECOVERY OF TAX DEDUCTED AT SOURCE. ALTHOUGH IT IS OBLIGATORY ON TH E PART OF THE PERSON COLLECTING TAX AT SOURCE TO PAY THE S AID TDS AMOUNT TO THE CREDIT OF THE CENTRAL GOVERNMENT WITHIN THE STIPULATED TIME, IF SUCH PERSON FAILS TO PAY THE TDS AMOUNT WITHIN THE STIPULATED TIME, THEN, SECTIO N 201 OF THE ACT PROVIDES THAT SUCH PERSON SHALL BE ITA NO.4096/DEL./2016 ITA NO.4097/DEL./2016 17 DEEMED TO BE AN ASSESSEE IN DEFAULT AND THE REVENUE WILL BE ENTITLED TO RECOVER THE TDS AMOUNT WITH INT EREST AT 12% P.A. AND TILL THE SAID TDS AMOUNT WITH INTER EST IS RECOVERED THERE SHALL BE A CHARGE ON ALL THE ASSETS OF SUCH PERSON OR THE COMPANY. PENALTY UNDER SECTION 2 21 OF THE ACT AND RIGOROUS IMPRISONMENT UNDER SECTION 276B OF THE ACT CAN ALSO BE IMPOSED UPON SUCH DEFAULTING PERSON OR THE COMPANY. THUS, COMPLETE MACHINERY IS PROVIDED UNDER THE ACT FOR RECOVERY OF TAX DEDUCTED AT SOURCE FROM THE PERSON WHO HAS DEDUCTED SUCH TAX AT SOURCE AND THE REVENUE IS BARRED FROM RECOVERING THE TDS AMOUNT FROM THE PERSON FROM WHOSE INCOME, TAX HAS BEEN DEDUCTED AT SOURCE. THEREFORE, THE FACT THAT THE REVENUE IS UNABLE TO R ECOVER THE TAX DEDUCTED AT SOURCE FROM THE PERSON WHO HAS DEDUCTED SUCH TAX WOULD NOT ENTITLE THE REVENUE TO RECOVER THE SAID AMOUNT ONCE AGAIN FROM THE EMPLOYE E- ASSESSEE, IN VIEW OF THE SPECIFIC BAR CONTAINED IN SECTION 205 OF THE ACT. 24. AS STATED EARLIER, IN THE PRESENT CASE THE PETITIONER-ASSESSEE HAS ESTABLISHED THAT FROM HIS S ALARY INCOME, TAX HAS BEEN DEDUCTED AT SOURCE BY THE EMPLOYER-RESPONDENT NO. 6 AND, THEREFORE, THE REVEN UE HAS TO RECOVER THE SAID TDS AMOUNT WITH INTEREST AN D PENALTY FROM THE RESPONDENT NO. 6 ALONE AND THE REVENUE CANNOT SEEK TO RECOVER THE SAID AMOUNT FROM THE PETITIONER-ASSESSEE IN VIEW OF THE SPECIFIC BAR CONTAINED UNDER SECTION 205 OF THE ACT. THE FACT TH AT THE PETITIONER IS NOT ENTITLED TO THE CREDIT OF THE TAX DEDUCTED AT SOURCE FOR THE NON-ISSUANCE OF THE TDS CERTIFICATE BY THE RESPONDENT NO. 6, CANNOT BE A GR OUND TO RECOVER THE AMOUNT OF TAX DEDUCTED AT SOURCE FRO M THE PETITIONER. IN OTHER WORDS, EVEN IF THE CREDIT OF THE TDS AMOUNT IS NOT AVAILABLE TO THE PETITIONER ASSES SEE FOR WANT OF TDS CERTIFICATE, THE FACT THAT THE TAX HAS BEEN DEDUCTED AT SOURCE FROM SALARY INCOME OF THE PETITIONER WOULD BE SUFFICIENT TO HOLD THAT AS PER SECTION 205 OF THE ACT, THE REVENUE CANNOT RECOVER THE TDS AMOUNT WITH INTEREST FROM THE PETITIONER ONCE AGAIN .' 8. THE SITUATION ARISING IN THE PRESENT PETITION I S SIMILAR. THE DEPARTMENT DOES NOT CONTEND THAT THE PETITIONER DID NOT SUFFER DEDUCTION OF TAX AT SOURCE AT THE HANDS OF P AYER, BUT CONTENDS THAT THE SAME HAS NOT BEEN DEPOSITED WITH THE GOVERNMENT REVENUE. AS PROVIDED UNDER SECTION 205 O F THE ACT AND AS ELABORATED BY THIS COURT IN CASE OF YASH PAL SAHNI ITA NO.4096/DEL./2016 ITA NO.4097/DEL./2016 18 (SUPRA) UNDER SUCH CIRCUMSTANCES THE PETITIONER CAN NOT BE ASKED TO PAY THE SAME AGAIN. IT IS ALWAYS OPEN FOR THE DEPARTMENT AND INFACT THE ACT CONTAINS SUFFICIENT P ROVISIONS, TO MAKE COERCIVE RECOVERY OF SUCH UNPAID TAX FROM THE PAYER WHOSE PRIMARY RESPONSIBILITY IS TO DEPOSIT THE SAME WITH THE GOVERNMENT REVENUE SCRUPULOUSLY AND PROMPTLY. IF TH E PAYER AFTER DEDUCTING THE TAX FAILS TO DEPOSIT IT IN THE GOVERNMENT REVENUE, MEASURES CAN ALWAYS BE INITIATED AGAINST S UCH PAYERS. 9. COUNSEL FOR THE REVENUE IS CORRECT IN POINTING OUT THAT FOR LONG AFTER ISSUING NOTICE UNDER SECTION 266(3) OF THE ACT, PETITIONER HAS NOT BROUGHT THIS FACT TO THE NOTICE OF THE RESPONDENT NO. 2 WHICH LED THE RESPONDENT NO. 2 TO MAKE RECOVERIES FROM THE BANK ACCOUNT OF THE PETITIONER. IN THAT VIEW OF THE MATTER, AT BEST PETITIONER MAY NOT BE E NTITLED TO CLAIM INTEREST ON THE AMOUNT TO BE REFUNDED. 10. UNDER THE CIRCUMSTANCES, PETITION IS DISPOSED OF WITH FOLLOWING DIRECTIONS: (I) TAKING NOTE OF THE FACT THAT THE RESPONDENTS H AVE LIFTED THE BANK ACCOUNT ATTACHMENT, NO NEED TO QUASH THE ATTACHMENT. (II) TWO IMPUGNED NOTICES DATED 5TH FEBRUARY, 2018 AS AT ANNEXURE 'B' TO THE PETITION AND 10TH SEPTEMBER, 20 18 AS AT ANNEXURE 'J' TO THE PETITION FOR RECOVERY ARE QUASHED. (III) THE RESPONDENTS SHALL REFUND A SUM OF RS. 3, 67,600/- TO THE PETITIONER WITHIN FOUR WEEKS FROM TODAY. IF SO DONE, THERE SHALL BE NO INTEREST LIABILITY, FAILING WHICH BEYOND SUCH PERIOD THE RESPONDENTS SHALL PAY SIMPLE INTERE ST AT THE RATE OF 8% P.A. ON SUCH AMOUNT TILL ACTUAL PAYMENT. 20. COMPUTATION OF TAX DEDUCTED AT SOURCE BY THE DE DUCTOR, AMOUNT OF RS.50,00,000/- DEPOSITED BY THE TAXPAYER VIDE ORDER (SUPRA) PASSED BY HONBLE HIGH COURT ORDER AND CAPI TAL GAINS ACCRUED TO THE ASSESSEE IS PROVIDED BY THE ASSESSEE , WHICH IS EXTRACTED BELOW FOR READ PERUSAL :- ITA NO.4096/DEL./2016 ITA NO.4097/DEL./2016 19 ASSESSMENT YEAR 2009-10 COMPUTATION SHEET OF TAX REFUNDABLE TDS DEDUCTED AT SOURCE BY KOUTONS GROUP RS.2, 04,96,655/- AMOUNT DEPOSITED AS PER ORDER OF DELHI HIGH COURT DATED 01.12.2011 RS. 50,00,0 00/- TOTAL : RS.2,54,96,655/- LESS : TAX PAYABLE AS PER ITNS 150 DATED 18.06.2015 RS. 40,84,589/- TOTAL REFUND DUE : RS.2,14,12,066/- NEEDLESS TO SAY THAT THIS COMPUTATION WOULD BE SUBJ ECT TO THE VERIFICATION OF THE AO. 21. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE AND FO LLOWING THE DECISIONS RENDERED BY THE HONBLE HIGH COURT DISCUS SED IN THE PRECEDING PARAS, WE ARE OF THE CONSIDERED VIEW THAT TDS TO THE TUNE OF RS.2,04,96,695 DEDUCTED BY THE KOUTONS GROU P ON ACCOUNT OF CAPITAL GAINS EARNED BY THE ASSESSEE AND AMOUNT OF RS.50,00,000 DEPOSITED BY THE ASSESSEE WITH THE REVENUE DEPARTME NT MINUS THE CAPITAL GAINS DEPICTED IN THE TABLE GIVEN IN THE PR ECEDING PARA IS LIABLE TO BE REFUNDED ALONG WITH STATUTORY INTEREST WITHIN TWO MONTHS FROM THE DATE OF THIS ORDER. 22. CONSEQUENTLY, THE APPEAL FILED BY THE ASSESSEE IS H EREBY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 3 RD DAY OF MARCH , 2021. SD/- SD/- (ANIL CHATURVEDI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 3 RD DAY OF MARCH, 2021/TS ITA NO.4096/DEL./2016 ITA NO.4097/DEL./2016 20 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-44 NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.