MANISH TANDON , FARIDABAD V. ITO, Ward-2(4), Gurgaon

MA 235/DEL/2022

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 4433 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-01-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 05-10-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 16-08-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rectification of order; TDS
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘SMC’ NEW DELHI BEFORE SHRI SAKTIJIT DEY, VICE-PRESIDENT Miscellaneous Application No.235/Del/2022 (In ITA No.1735/Del/2021) Assessment Year: 2016-17 Manish Tandon, Flat No. 201, Tower 8, Nirwana Country, The Close South, Gurugram, PIN: 12100 07 (Hr.) Vs. ITO, Ward 2(4), Gurgaon PAN :AEFPT0453B (Appellant) (Respondent) ORDER Present application has been filed by the assessee seeking rectification of order dated 24.06.2022 passed in ITA No.1735/Del/2021. 2. I have considered the submissions of learned counsel appearing for the assessee and learned Departmental Representative. Assessee by Shri D.C. Garg, CA Department by Shri Manu Chaurasia, DR Date of hearing 06.10.2023 Date of pronouncement 02.01.2024 2 M.A. No.235/Del/2022 3. In sum and substance, the contention of learned counsel for the assessee is to the effect that the directions of the Bench to the Assessing Officer to make inquiry with the employer and factually verify the quantum of TDS on salary paid to the assessee is unlikely to be followed as the employer M/s. Amira Pure Foods Pvt. Ltd. has been liquidated by the orders of National Company Law Tribunal, New Delhi. It is the further contention of the assessee that since assessee has already proved the quantum of TDS, there is no requirement for further verification by the Assessing Officer. 4. Learned Departmental Representative on the other hand, submitted that there being no mistake apparent on the face of record, the present application deserves to be dismissed. 5. Having considered rival submissions, I find that after taking note of the entire factual matrix as well as evidences brought on record, the Tribunal has recorded a finding of fact that, though, assessee has claimed credit for TDS amounting to Rs.12,14,720, however, an amount of Rs.4,22,666 is reflected in Form 26AS. The Tribunal has also observed that assessee has not been able to furnish any TDS 3 M.A. No.235/Del/2022 certificate issued by the employer under Section 203 of the Income- Tax Act, 1961, and the authenticity of various other documentary evidences furnished by the assessee, such as, salary and TDS sheets, bank slips etc. have been doubted by the Revenue as they do not bear seal and signature of the employer. 6. Having taken note of the fact that the assessee failed to furnish any credible evidence to establish on record that the employer has deduct tax at source but has failed to remit to government account, the Tribunal has taken a conscious decision to restore the issue to the Assessing Officer with a direction to make inquiry with the employer and factually verify the quantum of tax deducted at source on salary paid to the assessee. 7. I am of the view, there is no mistake, much less, any mistake apparent on the face of record as envisaged under Section 254(2) of the Act. Whether, the Assessing Officer would be able to follow the directions of the Tribunal or not is a fact which can be ascertained when the Assessing Officer implements the directions of the Tribunal. On mere apprehension that the directions of the Tribunal are unlikely 4 M.A. No.235/Del/2022 to be followed by the Assessing Officer, the assessee could not have filed the present application. 8. Now, what falls in the ambit of section 254(2) of the Act has been set at rest by the Hon'ble Supreme Court in the case of CIT vs. M/s. Reliance Tele-com Ltd. & Anr. (Civil Appeal Nos. 7110 & 7111 of 2021). The Hon'ble Supreme Court, while interpreting the provisions of section 254(2) of the Act, has held that the powers conferred under the said provision are only to correct and/or rectify the mistake apparent from the record and not beyond that. In the facts of the present appeal, admittedly, assessee seeks modification of Tribunal’s order on an apprehension that the directions issued by the Tribunal are unlikely to be followed by the Assessing Officer. This, in my view, does not fall within the ambit of mistake apparent on the face of record as provided under Section 254(2) of the Act. In the garb of rectification of mistake, assessee wants the Tribunal to review its earlier order by modifying the directions issued to the Assessing Officer. This cannot be the purpose of section 254(2) of the Act. In view of the aforesaid, I do not find merit in the present application. 5 M.A. No.235/Del/2022 9. In the result, miscellaneous application filed by the assessee is dismissed. Pronounced in the open court on 02.01.2024. Sd/- (SAKTIJIT DEY) VICE-PRESIDENT Dated: 2 nd January, 2024 Mohan Lal Copy forwarded to: 1. Applicant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi