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September 12, 2022

Revenue cannot reject a genuine refund to an assessee for non – payment of TDS by deductor

by CA Shivam Jaiswal in Income Tax, Legal Court Judgement

Revenue cannot reject a genuine refund to an assessee for non – payment of TDS by deductor

Facts and Issue of the Case

The brief facts of the case are that the assessee is a partnership firm engaged in the business of IMFL products including wines and beers for many liquor and beer manufacturing companies. The firm supplies stock to retail wine and beer shops, permit rooms and clubs. The assessee filed return of income electronically for A.Y. 2013-14 on 30-09-2013 declaring total income of Rs. 1,63,34,305/-. The case was selected for scrutiny under CASS and a notice u/s 143(2) of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) was issued to the assessee on 03-09-2014 which was duly served on the assessee. The income of the assessee as per its return was accepted and computed as assessed income (rounded) at Rs. 1,63,34,310/-. The assessee paid income- tax by way of TDS/TCS of Rs. 58,35,682/- against the tax liability of Rs. 50,47,302/- which resulted into refund of Rs. 7,88,380/-. Now coming to the grievance of the assessee, one supplier M/s. Cromex Liquors Pvt. Ltd, from whom the assessee purchased liquor during the year under consideration and paid TCS of Rs. 6,09,322/- did not deposit the amount in the Government account and therefore, this TCS amount was not reflected in Form 26AS statement of the assessee. Consequently, the A.O denied this tax credit since it was not reflected in the 26AS statement. The A.O had examined the record of the assessee and had reported that M/s. Cromex Liquors Pvt. Ltd., has deducted TCS of Rs. 6,09,322/- but tax collected at source was not deposited into the Government account and the same was not reflected in Form 26AS.

Therefore, it is an undisputed fact that tax was deducted from the assessee by M/s. Cromex Liquors Pvt. Ltd. It was the duty of M/s. Cromex Liquors Pvt. Ltd., to deposit such deducted amount into the Government account. The failure of doing so resulting in the fact that in the form 26AS of the assessee such TCS already deducted was not reflected and thus the revenue authorities made an addition. Examining the provisions of section 205, the Hon‟ble High Court has held that once it is established that tax has been deducted at source, the bar in section 205 of the Act comes into operation and it is immaterial as to whether tax deducted at source has been paid to Central Government or not because provisions are made under the Act for recovery of tax deducted at source from the person who has deducted such tax.

Observation by the Court

The ld. CIT(A) observed that tax was deducted from the assessee at source by Cromex Liquors Pvt. Ltd. Since M/s. Cromex Liquors Pvt. Ltd., did not deposit the amount in the Government account, the ld. CIT(A) ordered that the refund amount which was due to the assessee of Rs. 7,88,380/- should not be issued and the appeal was partly allowed. The court examined the facts of the case and the detailed perusal of the records demonstrates the fact that admittedly tax was deducted at source by M/s. Cromex Liquors Pvt. Ltd. to deposit that amount in the government account, which they failed to do so. The Revenue has sufficient machinery to recover such amount of TDS deducted from the defaulting assessee but this is not the right way for the revenue to collect the tax again or debar genuine refund to the assessee who has already suffered taxation at source. Considering the judicial precedents, the court  set aside the order of the ld. CIT(A) and allow the appeal of the assessee. The court  direct the A.O to immediately refund the eligible refund amount to the assessee.

Conclusion

In the result, appeal of the assessee is allowed by the court.

Walvekar-Brothers-Co.-Vs-ITO-ITAT-Pune

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