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2023 (4) TMI 1102 - ITAT AHMEDABADCredit of tds denied - Demand order of the AO without considering the provision of section 205 - Discharge of onus - whether the deductor actually deducted tax from payments made to the appellant or if deducted whether it was deposited into Government Account? - second round of litigation before us - HELD THAT:- ITAT on earlier occasion while setting aside the file to the AO casted obligation on him (the AO) to cross verify the evidences furnished by the assessee and find out the fact that tax was deducted or not by the party M/s Jain Infraproject Ltd. AO in the set aside proceedings failed to comply with the directions of the ITAT in its true sense. As such, the AO after receiving report from DDIT(Inv.) Unit-6 Kolkata that the party has not responded to the notices issued did not try to adopt any other means to verify and determine the fact whether tax at source was deducted or not against the invoices issued by the assessee. Assessee has discharged her onus by furnishing the necessary details to justify that the party i.e. M/s Jain Infraproject Ltd has deducted the TDS. Even on consideration of the circumstantial evidences, the difference between the amount of the invoices raised and the amount received by the assessee from the party is exactly matching with the amount of TDS. Once, the assessee has discharged the onus imposed on her, the onus shifted upon the revenue to disprove the contention of the assessee based on the documentary evidence. However, we find that the Revenue despite of having enough powers under the statute failed to disprove the contention of the assessee as wrong based on the cogent information. Revenue cannot absolve from its duty merely on the reasoning that the other party i.e. M/s Jain Infraproject Ltd. is not responding to the notices issued upon it. In view of the above, we hold that the assessee is entitled for the benefit of the provisions specified under section 205 of the Act. Hence, the ground of appeal of the assessee is allowed.
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