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TMI Blog2012 (8) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006-07 and 2008-09. 2. The appeals are time barred by 93 days but the assessee has moved a petition seeking condonation of this delay. Learned counsel also points out that, in identical set of circumstances and in assessee's own case for the assessment year 2007-08, an SMC bench of this Tribunal, vide order dated 18th June 2012, has condoned the delay. We have also heard learned Departmental Representative on the condonation petition. Respectfully following the views of the SMC bench in assessee's own case, with which we are in considered agreement, we condone the delay and proceed to take up the matter on merits. 3. The common issue in all the three appeals, which requires our adjudication, is whether a demand under section 201( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corroborate from the payers whether they have paid tax on their account' was also rejected. Aggrieved, assessee carried the matter in appeal but without any success. The assessee is not satisfied and is in appeal before us. 5. We have heard the rival contentions, perused the material on record and duly considered factual matrix of the case as also the applicable legal position. 6. Learned counsel's vehement reliance is on Hon'ble Allahabad High Court's judgment in the case of Jagran Prakashan Ltd Vs DCIT [(2012) 21 taxmann.com 489 All] wherein Their Lordships have, inter alia, observed as follows: ...........it is clear that deductor cannot be treated an assessee in default till it is found that assessee has also failed to pay suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. The plea is indeed well taken. Learned counsel is quite right in his submission that, as a result of the judgment of Hon'ble Allahabad High Court in Jagran Prakashan's case (supra) and in the absence of anything contrary thereto from Hon'ble jurisdictional High Court, there is a paradigm shift in the manner in which recovery provisions under section 201(1) can be invoked. As observed by Their Lordships, the provisions of Section 201(1) cannot be invoked and the "tax deductor cannot be treated an assessee in default till it is found that assessee has also failed to pay such tax directly". Once this finding about the non payment of taxes by the recipient is held to a condition precedent to invoking Section 201(1), the onus is on the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of income has not paid tax. Therefore, recovery provisions under section 201(1) can be invoked only when loss to revenue is established, and that can only be established when it is demonstrated that the recipient of income has not paid due taxes thereon. In the absence of the statutory powers to requisition any information from the recipient of income, the assessee is indeed not always able to obtain the same. The provisions to make good the shortfall in collection of taxes may thus end up being invoked even when there is no shortfall in fact. On the other hand, once assessee furnishes the requisite basic information, the Assessing Officer can very well ascertain the related facts about payment of taxes on income of the recipient directly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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