TDS intimations cannot be in the form of Demand U/s. 156
From a reading of the Centralised Processing of Statements of Tax Deducted at Source Scheme, 2013 it becomes clear that the Department has sought to achieve a comprehensive processing of statements filed under sub-section (3) of Section 200 of the Act, including rectification of a mistake in the said statement under Section-154 of the Act. The scheme also provides for an appeal under Clause (8). On a reading of the said scheme, it becomes clear that when once a Statement is filed under sub-section (3) of Section 200 of the Act, Clauses (4), (5) and (7) of the Scheme come into operation. At the stage of processing of the scheme, Clauses (9) and (10) are also applicable. It is in terms of these clauses, the petitioner received Annexures:D1 & D2, which are the intimations issued under Section 200-A of the Act. The petitioner having accepted those intimations, paid the outstanding dues as stated in those intimations. Thereafter, the respondents-Authorities have initiated proceedings for rectification of the statement under Section 154 of the Act, to be precise, i.e., under Clause (3) of sub-section (1) of Section 154 of the Act. In that context, Clause (6) of the scheme is pertinent, which is extracted above. Sub-clause (1) of Clause (6) of the scheme says t hat the income tax authority in order to rectify any mistake apparent from the record under Section 154 of the Act either on its own motion or on receiving an application from the deductor. The format of the application for rectification is as stipulated in sub-clause (2). Sub-clause (3) is relevant for the purpose of the case, which states that, where a rectification has the effect of reducing the refund or increasing the liability of the deductor, an intimation to that effect shall be sent to the deductor electronically by the Cell and the reply of the deductor shall be furnished in the form and manner specified by the Director General. In this context, the argument of the counsel for the petitioner is that the impugned intimations are in the nature of demands made under Section 156 of the Act, as it expressly states so and even what is stipulated in sub-clause (3) of Clause (6) that an intimation calling for a reply has not been given to the petitioner, instead impugned annexures straightway make a demand for the payment of alleged dues under Section 156 of the Act. It is contended that not only is there violation of sub-clause (3) of Clause (6) of the Scheme, but there is also violation of sub-section (3) of Section 154 of the Act. On perusal of the impugned intimations in light of sub-clause (3) of Clause (6) of the Scheme, it is noted that, no doubt the intimations that are impugned are issued under Section 154 of the Act. But, when the scheme itself envisages that the intimation must be issued so as to call for a reply from the deductor then it cannot be in the form of a demand under Section 156 of the Act. The impugned annexures are straightway issued in the nature of demands under Section 156 of the Act by-passing the requirement as stated in sub- clause (3) of Clause (6) of the Scheme. That apart, sub- clause (4) states that where an amendment has the effect of reducing a refund already made or increasing the liability of the deductor, the order under Section 154 of the Act passed by an income-tax authority of the Cell shall be deemed to be a notice under Section 156 of the Act. In this context, it was submitted that, without complying with the requirements of sub-clause (3) of Clause (6) and sub-seciton (3) of Section 154 of the Act, the impugned intimations are deemed to be notices under Section 156 of the Act and therefore, the impugned notices have to be quashed. On a reading of Clause (6) of the Scheme that I find, what is envisaged is that before any order is passed under Clause (6) of the Scheme, an intimation has to be sent to the deductor, which is in the nature of a showcause notice and after receiving a reply from the deductor and considering the same, an order has to be passed, then it would be deemed to be a notice of demand under Section 156 of the Act. The same not being done in the instant case, on that short ground alone, the impugned intimations namely, Annexures:C1 & C2, F1 & F2 and G1 & G2 have to be quashed, as they cannot be deemed to be notices of demand under Section 156 of the Act. However, instead of directing the respondents-authorities to re-initiate fresh proceedings under Section 154 of the Act, for the sake of convenience of the parties, the impugned annexures: C1 & C2, F1 & F2 and G1 & G2 could be construed as show cause notices or intimations as stated in sub- clause (3) of Clause (6) of the Scheme to which the petitioner is at liberty to reply within a period of three weeks from the date of receipt of a certified copy of this order and on receipt of the reply by the respondents- Authorities, the same shall be considered in accordance with law and a speaking order be passed thereon. Till then no precipitative or coercive action to be taken by the respondents pursuant to the impugned notices or intimations. It is needless to mention that, in the event the petitioners does not reply to the impugned annexures, which are construed as showcause notices, within the aforesaid time frame, the respondents- Authorities are at liberty to take steps in accordance with law. Source- Page Industries Ltd. Vs. UOI (Karnataka High Court), Writ Petition Nos. 10263 & 10264/2014 (T-IT), Date of Pronouncement – 31st Day of July 2014
HC -TDS credit for salary allowed even if employer has not uploaded the same in the Department's system
Ratio:
Credit for TDS made by the employer from the employee's salary is to be allowed, even if the employer has not uploaded the same in the Department's system through filing proper TDS return.
Held:
The learned Standing Counsel for Government of India [Taxes] produces a Circular, numbered as F.No.275/032013-IT(B) dated 08.07.2013 [Instruction No.05/2013], wherein a communication was issued by the CBDT taking into account the difficulties faced by the various assessees for reason only of the tax being not uploaded and also pursuant to the directions issued by the Delhi High Court. The Instruction clearly mandates as to how the tax deduction made by the employer, on evidence being produced, is to be dealt with, though not uploaded in the system.
This was the precise request made by the petitioner as per Exhibit P2, wherein he had produced the tax deduction certificate, issued under Form No.16 by his employer. In fact the assessee had produced Exhibit P4, which is subsequent to Instruction No.05/2013 and which would also further the case of the assessee. In such circumstance, Exhibit P3 is set aside. The Assessing Officer, the 1st respondent, shall consider the same in accordance with Instruction No.05/2013, Exhibit P4 as also in tune with the dictum laid down by the various High Courts in Exhibits P5 and P6. The petitioner shall approach the Assessing Officer personally within two weeks and produce a certified copy of this judgment along with legible copies of Exhibits P5 and P6 judgments; and within two months from the date of appearance, the matter shall be settled by the Assessing Officer, after calling for any further details from the petitioner, if so required.
Reported in:
No comments:
Post a Comment