DY. CIT- (TDS),, RAIPUR (CG) vs. SENIOR ACCOUNTS OFFICER,, RAIPUR (CG)

The revenue has challenged the impugned order passed by the Ld. CIT(A) on the following grounds:-

Whether on the facts and in circumstances of the case and in law, the Ld. CIT (A) has justified in deleting demand of Rs. 27,38,070/- raised u/s 201 (1) of the I.T. Act, 1961, for non deposit of tax.

Whether on the facts and in circumstances of the case and in law, the Ld. CIT (A) has justified in deleting demand of Rs. 7,95,400/- raised u/s 201 (1A) of the I.T. Act, 1961, for late deposit of tax.

Whether on the facts and in the circumstances of the case and in law, the Ld. CIT (A) has justified in applying Board’s Instruction No. 5/2013 dated 08.07.2013 on the matter arising well before the date of issue of Instruction No. 5/2013.”

Before us, the Ld. Departmental representative relying on the assessment order submitted that the Ld. CIT(A) has wrongly deleted the demand of Rs.35,37,980/-raised in terms of his order passed u/s 201(1)/201(1A) of the Act declaring the assessee as ‘assessee in default’ u/s 201 of the Act for short payment/non-payment of TDS. Since, the AO had imposed the penalty and levied interest on the basis of entries reported by the assessee and the information as per the bank challan details, the Ld. CIT(A) ought to have confirmed the action of the AO.

On the other hand, the Ld. Counsel for the assessee submitted that there is no infirmity in the order passed by the Ld. CIT(A). The demand has been raised due to mismatch in challan and entries made by the assessee. Since, the assessee was unable to file the correction statement before the AO for want of necessary record, the Ld. CIT(A) has rightly directed the assessee to file the correction statement after obtaining the necessary consolidated TDS files from the AO. The Ld. counsel for the assessee further submitted that now the 3 Assessment Year: 2009-2010

We have heard the rival submissions and perused the material on record. We notice that the Ld. CIT (A) has passed the impugned order in accordance with the CBDT Instruction No 5/2013 dated 08.07.2013 issued in the .light of the judgment of the Hon’ble Delhi High Court delivered in Court on its own Motion vs. UOI and others (W.P.(C) 2659/2012&W.P.(C)5443/2012dated 14.03.2013),the CBDT. The relevant portion of the CBDT Instruction reads as under: “When an assessee approaches the Assessing Officer with requisite details and particulars in the form of TDS certificated as an evidence against any mismatch amount, the said Assessing Officer will verify whether or not the deductor has made payment of the TDS in the Government Account and if the payment has been made, credit of the same should be given to the assessee. However,the Assessing Officer is at liberty to ascertain and verify the true and correct position about the TDS certificate. Such verification may be made with the relevant AO(TDS). The AO(TDS) may also, if deemed necessary, issue a notice to the deductor to compel him to file correction statement as per the procedure laid down; that in this regard, the AO (TDS) may invoke all the powers and authority as available to him /her as per the Income Tax Act. If required and necessary, he/she can obtain prior approval of the Director or Commissioner Tax. The authorities can also examine whether general approval can be given. Thus the manner laid down by the Hon’ble HC in the above mandamus is the method of due verification.”

Since, the Ld. CIT(A) has passed the impugned order in accordance with the instructions of the Board, we do not find any reason to interfere with the same. Accordingly, we uphold the findings of the Ld CIT(A) and direct the AO to 4 Assessment Year: 2009-2010