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Assessee by Shri Suresh K. Kabra, CA Revenue by Shri Abhishek Gautam, Sr.DR 02/06/2022 Date of hearing 06/06/2022 Date of pronouncement Order under Section 254(1) of Income tax Act PER PAWAN SINGH, JUDICIAL MEMBER:
1. 1. Both these appeals by the assessee are directed against the separate orders of ld. CIT(A)/ National Faceless Appeal Centre (NFAC), Delhi dated 08/09/2021 and 20/10/2021 for the assessment year 2016-17 and 2017-18 respectively.
2. In both these appeals, the assessee(s) have raised certain common grounds of appeals, certain facts are common in both the appeals, thus, both the appeals are clubbed and heard together and are decided by this consolidate order to avoid the conflicting decision. With the consent of parties, the appeal for ITA No. 154 & 232/SRT/2021 Girishchandra K Bhatt Vs Circle 1(3) A.Y. 2016-17 in is treated as ‘lead’ case, wherein the assessee has raised following grounds of appeal:- “1. The Ld. CIT(A) has erred on the facts of the case in law by not allowing credit of TDS deducted by the employer but not deposited to Government Account (Rs. 3,55,097/-)
2. Prayer 2.1 The credit for TDS Rs. 3,55,097/- may kindly be allowed. 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.”
Brief facts of the case are that the assessee is an individual, filed his return of income for the assessment year 2016-17 on 10.03.2018. In the return of income, the assessee has shown income from salary, interest and from other sources. The return of income was processed by Central Processing Centre (CPC)/AO. The CPC/AO while the processing the return of assessee created demand of Rs. 4,80,080/- on account of TDS liability. The intimation under section 143(1) was sent to the assessee on 15/06/2018.
Aggrieved by the demand raised in the intimation/assessment order dated 15/06/2018, the assessee filed before the ld. 2 & 232/SRT/2021 Girishchandra K Bhatt Vs Circle 1(3) CIT(A). The appeal of the assessee was transferred /migrated to the National Faceless Appeal Centre (NFAC) in terms of Notification No. 76 of 2020 dated 25.09.2020 issued by Central Board of Direct Taxes (CBDT), New Delhi. The assessee in the statement fact in Form No. 35 stated that he was employed with ABG Shipyard Ltd., The main source of income of the assessee is salary and interest. The employer of assessee deducted tax on salary as reflected in monthly salary slip issued to him. The tax deducted by his employer partially remitted to government account. Form No. 16A and 16B have not issued to the assessee. Due to non-deposit of tax deducted at source, there is mismatch and a demand was raised in the intimation under section 143(1) of the Act. The ld. CIT(A)/NFAC after considering the statement of fact that the employer of the assessee i.e. ABG Shipyard Ltd. deducted tax at source but TDS returns were not filed, due to which the same is not reflected in Form 26AS. On the details available on record TDS of Rs. 6,13,957/- was deducted but remitted only Rin government account. The ld.CIT(A)/NFAC on his observation dismissed the appeal of the & 232/SRT/2021 Girishchandra K Bhatt Vs Circle 1(3) assessee. Further aggrieved, against the order of ld CIT(A), the assessee has filed the present before this Tribunal.
We have heard the submission of the ld. Authorised Representative (AR) of the assessee and the Departmental Representative (DR) for the Revenue. The ld. AR of the assessee submits that the assessee is an employed with ABG Shipyard Ltd., which had deducted tax at source while making monthly salary to the assessee. The employer deducted that tax of Rs. Rs. 6,13,957/-, however the amount of Rs. 1,84,700/-was remitted to the government treasury accordingly, a demand was credited. The ld. AR of the assessee further submits that in similar case of this Bench in case of Shantinath Baidyanath De Vs ITO in dated 13.07.2021, the matter was remitted issued back to the file of the CPC/AO with direction to examine the salary slip, amount deducted as TDS and the income tax return filed by the assessee and allowed the credit of TDS which has been reflected in Form 26AS. The ld. AR of the assessee submits that a copy of Form 26AS wherein the part sum credit of TDS is shown. The ld. AR submits that a similar direction may be issued in case of the assessee. The ld 4 & 232/SRT/2021 Girishchandra K Bhatt Vs Circle 1(3) AR for assessee further submits that Hon’ble Jurisdictional High Court in a recent decision in Kartik Vijaysinh Soanvane Vs DCIT (2021) 132 taxmann.com 293 (Guj) held that where TDS has been made by employer of the assessee, it will always been open for department to recover same from said employer and credit of same could not have been denied to the assessee.
On the other hand, the ld. Sr. DR for the Revenue submits that no details was furnished by assessee before ld. CIT(A)/NFAC. However, on confronting, the fact that the assessee is at least entitled for set off of credit of tax remitted and reflected in Form- 26AS. The ld Sr DR submits that, the matter may be restored to the AO for limited verification.
We have considered the rival submission of both the parties and perused the material available on record. The intimation issued by CPC/AO under section 143(1) of the Act dated 15/06/2018 was issued AO/CPC, and created demand for the want of TDS return by employed. We find that the assessee filed an appeal before CIT(A) on 28.06.2018. The appeal of the assessee was transferred to NFAC in term of notification of CBDT dated & 232/SRT/2021 Girishchandra K Bhatt Vs Circle 1(3) 25.09.2020. The ld. CIT(A)/NFAC passed the order on 08/09/2021. The ld. CIT(A)/NFAC passed its order on the basis of details of intimation U/s 143(1) of the Act and the statement of fact was pleaded by assessee in Form 35 (the appeal filed the ld. CIT(A)/NFAC).
Before us, the ld. AR of the assessee has furnished a copy of Form 26-AS for the financial year under consideration. On perusal of copy of entry in Form 26AS, we find that there are certain tax credit shown in Form 26AS, therefore, we restore the case to the file of Assessing Officer/CPC to verify the facts and grant the credit/set off of tax shown in Form 26AS and passed the speaking order in accordance with law. The AO is directed to grant reasonable opportunity to the assessee before passing the order. The assessee is also directed to provide all necessary information and evidence including the copy of Form-26AS to the AO. The AO is also directed to consider the decision of Gujarat High Court in Kartik Vijaysinh Soanvane Vs DCIT (supra) and pass the order in accordance with law. In the result, the ground of appeal raised by the assessee is allowed & 232/SRT/2021 Girishchandra K Bhatt Vs Circle 1(3) for statistical purposes. In the result, the appeal of the assessee is allowed for statistical purpose.
The assessee in his appeal for A.Y. 2017-18 in has raised following grounds of appeals:-
“1. The Ld. CIT(A) has erred on the facts of the case in law by not allowing credit of TDS deducted by the employer but not deposited to Government Account amounting Rs. 2,34,045/-. 2. Prayer 2.1 The credit for TDS Rs. 2,34,045/- may kindly be allowed. 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.”
Since the facts in this appeal is similar as in for the Assessment year 2016-17, except variation of addition. Therefore, considering the totality of facts and circumstances of the case, the finding given by us in the former paras i.e. in ITA No. 154/Srt/2021 for the Assessment year 2016-17 shall apply mutatis mutandis in this appeal also. In the result, the appeal of the assessee is allowed for statistical purposes. & 232/SRT/2021 Girishchandra K Bhatt Vs Circle 1(3) 11. In the result, both the appeals of the assessee are allowed for statistical purposes only.