Sanjay Mahadev Khopkar, Thane V. Assistant Commissioner of Income Tax, Cir.-3(2), , Surat

ITA 91/SRT/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1611 (ITAT-SURAT)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 14-09-2022
• Assessment Year: 2016-2017
• Appeal Filed On: 19-04-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Question of law; TDS; FORM 26AS
• Section: 143(1); 205

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH (SMC), SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER ITA No. 91/Srt/2022 (Assessment Year: 2016-17) (Physical hearing) Sanjay Mahadev Khopkar, C-102, Sanskar Jyot, Gaon Devi Road, More Tower Dombivilli West Kalyan, Thakurli Thane, Maharastra-421201. PAN No. AGIPK 1744 K Vs. A.C.I.T., Circle-3(2), Surat. Appellant/ assessee Respondent/ revenue Assessee represented by Shri Suresh K Kabra, CA Department represented by Shri Vinod Kumar, Sr.DR Date of hearing 15/09/2022 Date of pronouncement 29/09/2022 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the order of learned Commissioner of Income Tax (Appeal) (in short, the ld. CIT(A))/National Faceless Appeal Centre, Delhi (NFAC) dated 29/03/2022 for the Assessment year 2016-17. The assessee has raised following grounds of appeal: “1. The ld. CIT(A) has erred on the facts of the case and in law by not allowing credit for TDS deducted by the employer but not deposited to Government Account amounting to Rs. 2,12,304/-. 2. Prayer: 2.1 The credit for TDS Rs. 2,12,304/- may kindly be allowed. ITA No. 91/Srt/2022 Sanjay Mahadev Khopkar Vs ACIT 2 2.2 Personal hearing may be granted. 2.3 Any other relief that your honours may deem fit may be granted 3. The assessee craves leave to add, amend, modify alter or delete any of the grounds at the time of hearing.” 2. At the outset of hearing, the learned Authorised Representative (ld. AR) of the assessee submits that the grounds of appeal raised by the assessee is covered by the decision of Hon’ble Jurisdictional High Court in the case of Kartik Vijaysinh Sonavane Vs DCIT reported in 440 ITR 1(Guj)/(2021) 132 taxmann.com 293 (Guj) and various other decisions of the Tribunal including the decision of this Tribunal in the case of Girishchandra Keshav Bhatt Vs Circle 3(1), Surat in ITA No. 154 & 232/Srt/2021 order dated 06/06/2022. The ld. AR for the assessee further submits that the assessee was employed with ABG Shipyard Limited, who deducted tax at source/TDS while payment of monthly wages, which are duly reflected in the salary/wage slip of the assessee. However, the entire TDS was not deposited by his employer in the account of Central Government. The CPC, Bangalore while processing the return of income created a demand of Rs. 2,15,330/- against the assessee. The tax of assessee was deducted by the employer, the assesse cannot be asked to pay the tax again. The ld. AR submits that as per the provisions of Section 205 of the Act, where the TDS has been made by the employer, the assessee is not liable to pay the similar tax again. The Hon’ble Jurisdictional ITA No. 91/Srt/2022 Sanjay Mahadev Khopkar Vs ACIT 3 High Court on similar question of law has held in the case of Kartik Vijaysinh Sonavane Vs DCIT (supra) that where the TDS has been deducted by the employer of the assessee, it will always open for the department to recover the same from the said employer and the credit could not be denied to the assessee. The ld. AR submits that in similar cases of assessees who were also employed with ABG Shipyard where similar credit was not disallowed by CPC, Bangalore and on appeal no relief was granted by the ld. CIT(A). However, on further appeal before Tribunal, in various cases, restored the matter back to the file of Assessing Officer to grant credit of the tax which has been deducted from the salary of assessee. The ld. AR submits that similar direction may be given in the present case to assessing officer to pass order after granting credit of TDS already deducted which is shown in the wage/salary slip of the assessee in addition to the credit shown in Form- 26AS. 3. On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue supported the order of ld. CIT(A). The ld. Sr. DR for the revenue submits that the CPC Bangalore has already granted credit of TDS reflected in Form 26AS. Since no tax was deposited as claimed by assessee, therefore, no credit can be allowed to the assessee. In alternative and without prejudice submission, the ld. Sr. DR for the revenue submits that ITA No. 91/Srt/2022 Sanjay Mahadev Khopkar Vs ACIT 4 even if this Bench is of the view that the matter required reconsideration as per the decision of Hon’ble Gujarat High Court in Kartik Vijaysinh Sonavane Vs DCIT (supra), the assessee should not be allowed to claim refund of such alleged tax which was deducted and not deposited with the account of Central Government. 4. I have considered the submissions of both the parties and have gone through the orders of lower authorities carefully. I find that intimation was issued by the CPC/Assessing Officer under Section 143(1) dated 31/5/2018 and created demand of Rs. 215,330/- for want of TDS not deposited by the employer in the account of Central Government. The appeal of assessee was also dismissed by the ld. NFAC vide its order dated 29/03/2022 by taking a view that only amount in Form 26AS is Rs. 54,500/-. Credit against which is allowed to the assessee and not granting TDS credit of Rs. 1,57,804/- for the reasons that no such tax was deposited by the employer of the assessee in the government account. Before me, the ld. AR of the assessee while making submission, strongly relied on various decisions of Tribunal and the decision of Hon’ble Jurisdictional High Court in Kartik Vijaysinh Sonavane Vs DCIT (supra). Considering various decisions of this combination and decision of Hon’ble Jurisdictional High Court in Kartik Vijaysinh Sonavane Vs DCIT (supra), the grounds of appeal raised in the present appeal is restored back ITA No. 91/Srt/2022 Sanjay Mahadev Khopkar Vs ACIT 5 to the file of Assessing Officer to verify the fact and grant set off tax shown in Form 26AS as well as tax deducted and reflected in the wages/salary slip of assessee irrespective of the fact that such TDS is reflected in Form 26AS and to pass order afresh in accordance with law, and to consider the decision of Hon’ble Jurisdictional High Court in Kartik Vijaysinh Sonavane Vs DCIT (supra). With this direction, the appeal of assessee is allowed for statistical purposes. 5. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 29 th September, 2022 and the result was placed on notice Board. Sd/- (PAWAN SINGH) JUDICIAL MEMBER Surat, Dated: 29/09/2022 *Ranjan Copy to: 1. Assessee – 2. Revenue - 3. CIT(A) 4. CIT 5. DR 6. Guard File By order Sr.Private Secretary, ITAT, Surat