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2023 (10) TMI 625 - HC - Income TaxReview application - denial of benefit of the provisions of Section 205 - tax at source deducted by company [CAL] to whom assessee provided services was not completely deposited with the respondent/revenue - non-applicant submitted that the tax deductor did not issue Form 16A, and it was not possible for the non-applicant/assessee to obtain the same - whether this court fell in error apparent on the face of record in placing reliance on the judgment in the case of Sanjay Sudan [2023 (2) TMI 1079 - DELHI HIGH COURT]? HELD THAT:- As in the present case, it was mandatory duty of tax deductor to deduct tax at source qua the payments made to the nonapplicant/assessee. Also not in dispute is the legal proposition that vide Section 205 of the Income Tax Act, where the tax is deductable at source, the assessee shall not be called upon to pay the tax himself to the extent to which tax has been deducted from his income. No doubt, Form 16A is amongst others, a piece of evidence which can establish deduction of tax at source. That said, Form 16A is not the only piece of evidence in that regard. In a case where the assessee can show reliable material other than Form 16A and prima facie establish the deduction of tax at source, in our view the assessee cannot be denied benefit of the provisions of Section 205 of the Act. The assessee cannot be left at mercy of the tax deductor, who for multiple reasons may not issue Form No. 16A and/or may not deposit the deducted tax. In the present case, the non-applicant/assessee admittedly declared in his return of income the tax deducted at source by tax deductor and supported the same with his ledger account. We are not oblivious that ledger account is not the conclusive evidence. But at the same time, we find no reason for failure on the part of the review applicant to carryout any inquiry if they were not satisfied about truthfulness of claim of the nonapplicant/assessee qua the tax deducted at source. Not only this, the non-applicant/assessee even filed a complaint with the revenue authorities alleging that Tax deductor had deducted but not deposited the tax deducted at source. But no action was taken on its complaint, so the non-applicant/assessee had to even seek information by way of his application under the Right to Information Act Despite the aforesaid, concerned officers of the review applicant opted not to quench their baseless doubt by way of detailed inquiry qua deduction of tax at source and came up with this review application raising the unsustainable differentia of Form 16A. The review applicant being the State and the non-applicant/assessee being the citizen, the latter cannot be burdened with the responsibility to somehow procure Form 16A to secure benefit of the provision of Section 205 of the Act. We are in respectful agreement with the view taken in the case of Yashpal Sahni [2007 (7) TMI 7 - HIGH COURT , BOMBAY] to the effect that from language of Section 205 of the Act, it is clear that the bar operates as soon as it is established that the tax had been deducted at source and it is wholly irrelevant as to whether the tax deducted at source is deposited or not and whether Form No. 16A has been issued or not. No error as apparent on the face of record found which would persuade us to engage in reviewing the impugned order.
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