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TMI Blog2011 (5) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed to comply in respect of his liability towards his claim even after lapse of substantial period of time." 3. The brief facts of the case are that assessee had claimed credit for tax deducted at source but could not submit all the certificates. It was pleaded that whatever certificates have not come that issue may be kept in abeyance. It seems that because of this issue and some other issues the matter travelled before the CIT (A) and the issues were decided. When the Revenue pressed for collection of demand assessee again filed application under section 154 for claiming the credit of TDS without filing the TDS certificates in some cases. Credit for tax deducted at source was given wherever certificates were filed. However, no credit w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the decision of the Bombay High Court in case of Yashpal Sanhni vs. Rekha Hajarnavis, Assistant Commissioner of Income-tax & others." 5. Before us the learned D.R. submitted that as per section 199 Revenue was bound to give credit for any tax deducted on behalf of the assessee which has already been deposited with the Central Government. Obviously such credit to be given if certificates were filed, which are required to be issued in terms of section 203 of the Act. He contended that the learned CIT (A) has given a direction following the decision of the hon'ble Bombay High Court in the case of Yashpal Sanhni vs. ACIT & Ors. 293 ITR 593 to keep the balance of payment in abeyance, which is contrary to the provisions of section 199 r.w.s. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification application under section 154 was not entertained. Ultimately penalty proceedings under section 221(1) were initiated and assessee filed writ petition before the Hon'ble Bombay High Court. The hon'ble High Court, reproducing provisions of section 205, observed that once it is established that tax has been deducted at source from the salary of the employee then bar under section 205 of the Act comes into operation. Vide para 22 it was observed as under: - "22. In the present case, though respondent No. 6 has deducted the tax at source from the salary income of the petitioner, respondent No. 6 has not issued the TDS certificate in Form No. 16 to the petitioner. As a result, the petitioner is not entitled to avail credit of the tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 has been issued or not. Also the mere fact that the employer may not issue the TDS certificate to the employee does not mean that the liability of the employer ceases. The liability to pay income-tax if deducted at source is upon the employer." The highlighted portions very clearly show that the bar under section 205 would operate as soon as it is established that tax has been deducted at source. Therefore, it is clear that there has to be some evidence showing that tax has been really deducted, even if TDS certificates are not there. Therefore, in the interest of justice we set aside the order of the CIT (A) and remit the matter back to the file of the A.O. with a direction to request the assessee to furnish some evidence to the satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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