Ajaykumrar Kundanlal Sharma, Surat V. Dy. Commissioner of Income TAx CPC, Bangalore

MA 31/SRT/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1686 (ITAT-SURAT)
• Duration Of Justice: 3 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 15-09-2022
• Assessment Year: 2016-2017
• Appeal Filed On: 16-05-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SURESH K KABRA
• Keywords: Rectification of order; TDS; FORM 26AS
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER M.A. No.31/SRT/2022 (AY 2016-17) (Arising out of ITA No.233/Srt/2021) (Hearing in Physical Court) Ajaykumar Kundanlal Sharma, S. No. 59/4 and 59/5, C/o- ABG Shipyard Ltd., Magdalla Port Dumas Road, Hazira, Surat. PAN: AXDPS 4764 R Vs I.T.O., Ward 3(2)(6), Surat. Assessee / appellant Revenue /respondent Assessee by Shri Suresh K Kabra, CA Revenue by Shri Vinod Kumar, Sr. DR Date of hearing 16/09/2022 Date of pronouncement 16/09/2022 Order under section 254(2) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This Miscellaneous Application (MA) is filed by the assessee for seeking rectification of order of this Tribunal dated 02/03/2022 passed in ITA No. 233/Srt/2021. The ld. Authorised representative (AR)- of the assessee submits that the assessee in his appeal raised ground that his employer deducted TDS of Rs. 1,18,170/- from his salary but not deposited in the Government account. His main submission during the hearing was that the TDS was deducted by his employer (ABG Shipyard) from the salary of assessee, which is duly reflected in the salary slips but the same was not deposited with Government account and that the grounds of appeal is covered by the decision of Tribunal in Shantinath Baidyananth De Vs ITO (ITA No. 26/Srt/2021), such MA No.31/SRT/2022 Ajaykumar Kundanlal Sharma Vs ITO 2 submissions are correctly recorded in para-3 of the order. However, the Tribunal while restoring the case to the file of Assessing Officer directed only to verify the tax credited shown in the Form No. 26AS instead of directing the Assessing Officer to examine/ verify salary slip of the assessee and allow credit to the assessee of tax deducted from the wages of assessee as reflected in his salary slips. The assessee has furnished the details of total TDS of Rs. 1,05,521/- deducted by his employer not deposited with Government. The ld AR for the assessee submits that Hon’ble Jurisdictional High Court in Kartik Vijaysing Sonavane Vs DCIT (2021) 132 taxmann.com 293 (Gujarat) held that where TDS has been deducted by employer of assessee, it will always been open for department to recover same from said employer and credit of same could not have been denied to assessee. 2. The ld. AR for the assessee submits that the direction in the order dated 02/3/2022 may be suitably amended by making rectification directing the assessing officer to grant credit of entire TDS deducted by his employer, which has been inadvertently left. 3. On the other hand, the ld. Sr. DR for the revenue submits that the direction of the Bench is clear and unambiguous. The order passed by this bench does not require any correction or rectification. In alternative and without prejudice submissions, the ld Sr DR for the revenue submits that even if credit of MA No.31/SRT/2022 Ajaykumar Kundanlal Sharma Vs ITO 3 impugned TDS is allowed, the assessee should not be allow any refund of such alleged TDS. 4. We have considered the submissions of both the parties and have gone through the contents of order dated 02/3/2022. We find that the main submission of ld. AR of assessee was that the employer of assessee i.e. ABG Shipyard deducted tax from his salary while making monthly salary and that a sum of Rs. 1,18,710/- was deducted. However, the entire TDS was not deposited in Government treasury by the employer. Thus, the CPC while processing the return of income created demand. Before us, the ld. AR also relied on the decision of this Bench in Shantinath Baidyananth De Vs ITO in ITA No. (supra). We find that while restoring appeal to the file of Assessing Officer due to advertence, we directed to grant credit of TDS shown in Form 26AS only and due to inadvertence not given clear direction to grant credit of TDS deducted and shown in the salary slip of assessee by ABG Shipyard and pass order in accordance with law, as has been held in case of Shantinath Baidyananth De Vs ITO in ITA No. (supra). Therefore, we direct that the Assessing Officer while giving effect to our order dated 02/03/2022 shall consider the TDS deducted and shown in the salary slip of assessee and grant credit thereof and pass the order in accordance with law. The assessing officer is also directed to consider the decision of Hon’ble Jurisdictional High Court MA No.31/SRT/2022 Ajaykumar Kundanlal Sharma Vs ITO 4 in Kartik Vijaysing Sonavane Vs DCIT (supra). With this direction, this Misc. Application of assessee is allowed. 5. In the result, this Misc. Application of the assessee is allowed. Order was announced on 16 th September, 2022 at the time of hearing in physical court hearing. Sd/- Sd/- (Dr. ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 26/09/2022 *Ranjan Copy to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR 6. Guard File By order / / TRUE COPY / / Sr. Pvt. Secretary, ITAT, Surat