TMI Blog2007 (8) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) in his appellate order dated February 12, 2001. The learned Commissioner of Income-tax (Appeals) has also erred in dismissing the appeal of the assessee in this regard. 2. The appellant specifically challenges the following statements, findings, conclusions of the learned Commissioner of Income-tax (Appeals) in paragraph 2.5 of his order dated October 21, 2004 : (a) No evidence has been filed by the appellant regarding T.D.S. deducted. (b) Credit for T.D.S. cannot be given in the absence of statutory certificate. (c) Reference to section 205 is out of context. 3. The learned Commissioner of Income-tax (Appeals) has erred in holding that the Assessing Officer was justified in not allowing the credit of tax claimed by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In order to give credit for the tax deducted at source, the Assessing Officer must have the original document or evidence to support the claim. In the present case that is not available, even though it was not because of the fault of the assessee. This is the dilemma faced by the lower authorities in the present case. It is also true that the Assessing Officer has made certain attempt to collect the details of tax deducted at source and paid over to the Government from the employer-company. But the Assessing Officer was not successful. Now coming to the point in question, we have to say that the issue cannot be kept for long open ended without any remedy. We also find that the assessee cannot be penalized for no fault of his. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the petitioner in view of the bar contained in section 205 of the Act. Accordingly, the Revenue is directed to refund to the petitioner within 8 weeks from today the amount of Rs. 17,89,587 with interest at 6 per cent. from the date of recovery till the date of payment. Though the credit of the tax deducted at source is not available to the petitioner, since the said liability is not recoverable from the petitioner, the Revenue is directed to earmark the said TDS liability as not recoverable from the petitioner .. From the above, it is clear that the court has held that once the employer has deducted the tax at source, the employee-assessee cannot be held responsible for the payment once again and any such demand raised against su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso take the assistance of the assessing authority having jurisdiction over the former employer of the assessee, M/s. Skyline NEPC Ltd. The assessing authority is directed to enforce his statutory powers and the authority to collect the said details and evidences/to recover the payment from the former employer. If it is found that the tax has been deducted from the salaries paid to the assessee, no recovery shall be made from the assessee. If the Assessing Officer is able to obtain the TDS certificate itself, then credit shall be given to the assessment account of the assessee. The issue is remitted back to the Assessing Officer for proceeding further in this matter as directed and in accordance with law. The order of the assessing author ..... X X X X Extracts X X X X X X X X Extracts X X X X
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