NARESH ANCHALIA,KOLKATA vs. DCIT, CIR. 32(1), KOLKATA

Before adverting to the specific grievance, we deem it appropriate to make a reference to the facts. According to the assessee, he has filed his return of income on 15.07.2011 declaring total income of Rs.8,36,470/-. This return was processed under section 143(1) on 03.10.2011. The case of the assessee thereafter, was reopened by 1

(A.Y. 2011-12) Naresh Anchalia issuance of a notice under section 148 on 29.03.2018. In response to the notice, the assessee attended the proceeding before the ld. Assessing Officer from time to time and furnished necessary details, but ld. Assessing Officer passed the assessment order according to his best judgment under section 144 read with section 147. This fact was mentioned by the ld. Assessing Officer on the ground that the assessee did not file his return electronically and, therefore, he treated the proceeding as an ex-parte proceeding qua the assessee. The ld. Assessing Officer did not make any addition. He accepted the returned income. The grievance of the assesese is that the TDS credit of Rs.86,894/- was there in Form No. 26AS. This credit has not been granted to the assessee. Therefore, an appeal was filed before the ld. CIT(Appeals).

The ld. Counsel for the assessee pointed out that the appeal of the assessee has been dismissed by the ld. CIT(Appeals) on the ground that the assessee has availed Vivad Se Vishwas benefit and, therefore, this appeal becomes infructuous. He submitted that the assessee has not availed any VSV Scheme and it is a factually incorrect finding.

The Registry has pointed out that the assessee ought to have paid fees of Rs.7,865/-, i.e. @ 1% of the assessed income. This amount has been calculated after giving credit of Rs.500/- paid by the assessee. The Registry has raised a defect in the appeal and communicated it to the assessee. The assessee submitted that his case falls under clause (d) of section 253(6) and he is supposed to pay only 500/- rupees, which has already been paid. This explanation of the assessee did not meet the approval of the Registry and hence along with this objection, the appeal is listed before us.

With the assistance of ld. Representative, we have gone through the record carefully. We find that the assessee has not disputed any of the issues regarding computation of income or assessment of income. His dispute is only that TDS credit was not given. Therefore, we are of the view that the case of the assessee falls in Clause (d) of sub-section 253(6) and he has already paid a sum of Rs.500/- meant for that clause.

Ideally when a factual mistake committed by the ld. 1st Appellate Authority, the assesese ought to have approached that authority itself under section 154 for rectification, because according to the assessee, he has not applied under VSV, whereas the ld. CIT(Appeals) recorded a finding that the assessee has filed application under the Vivad Se Vishwas Scheme. In this type of situation, when factual aspect is in dispute, then the assessee should have approached for clarity on the facts but considering the nature of litigation and the only issue involved therein, i.e. TDS credit of Rs.86,894/- has not been considered either by the ld. Assessing Officer or by the ld. CIT(Appeals), we deem it appropriate to remit this issue to the file of ld. Assessing Officer for re- adjudication. The simple reason for this is that if we institute the proceeding at the level of ld. CIT(Appeals), then he will call for a remand report from the ld. Assessing Officer and unnecessarily it will give rise multiplication to the litigation at different platforms. For this reason, we remit it back to the ld. Assessing Officer with a direction that ld. Assessing Officer shall verify the Form No. 26AS and if found TDS credit of Rs.86,894/-, then the same may be granted to the assessee after hearing him. Charging of interest under section 234A, 234B, 234C and 234D will be consequential.

In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on October 18, 2022.