TMI Blog2013 (3) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... crystal clear that it is not the case of the Income Tax Department that any tax is payable by the petitioner for the assessment year in question. Income Tax Department has not issued any order for deduction of tax from the salary of the petitioner. This being position, the college authorities and the D.I.O.S., Fatehpur were not justified in making any deduction from the salary of the petitioner on the pretext that the petitioner has not paid the tax on his arrears of salary. As decided in Jagran Prakashan Ltd. versus Deputy Commissioner of Income -Tax (TDS) (2012 (5) TMI 488 - ALLAHABAD HIGH COURT) considering Section 201(1) there is no occasion to treat the deductor as an assessee in default unless the assessee has not paid the tax directly. As the case of the department is that the petitioner in no manner, is an assessee in default. Thus, in view of the stand taken by the department that there is nothing against the petitioner in the said communication and it is against the DDO, the action of the College Management is wholly arbitrary and illegal. The Principal or the Manager had no authority or occasion to take any step to deduct the sum of Rs. 1,37,868/- for the alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 at Fatehpur which was revised and the revised return was filed on 31.3.1997. A photostat copy of the income tax return furnished by the petitioner according to the Department, reveals that there is no stamp of the office on the return. The further case of the petitioner that the return was filed before the Commissioner of Income Tax, has been disputed in the said paragraph. In the counter affidavit filed on behalf of the Institution, the submission is that the impugned letter was issued to the petitioner in pursuance of the order passed by the ITO (TDS), Allahabad. In the counter affidavit filed on behalf of the DIOS through learned Standing Counsel, submission is that ITO (TDS) vide it's inquiry report dated 17.2.2009 has calculated the income tax due along with interest against the petitioner to the tune of Rs. 1,37,688/- and in pursuance thereof, the Manager/Principal, Sadanand Degree College, Cheolaha, Fatehpur has started proceeding of deduction of the amount of income tax. Heard Sri S.K. Mishra, learned counsel for the petitioner, the learned Standing Counsel on behalf of respondent nos. 1 to 4, Sri Shakeel Ahmad on behalf of respondent nos. 5, 6, 10 and 11 and Sri Asho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,425/- alongwith form 16, from 10E and salary computation on which he has received a refund of Rs. 323/-. Mr. Dewedi filed a revised return on 31.3.1999 on an income of Rs. 5,96,296/- at Allahabad. As this return was not processed at Allahabad no refund of Rs. 15,492/- was raised. To substantiate that no refund was received by Mr. Dewedi photocopy of his bank passbook was checked and it is found correct that no refund has been received by him amounting to Rs. 15,492/-. Looking into these facts, it is clear that tax has rightly been deducted on the arrears of Rs. 3,08,065/-." There appears to be no dispute that there is no order by the Income Tax Department directing the Management of the Institution or anybody else to deduct the tax from the salary of the petitioner towards arrears of salary received by him earlier. This is clear from the counter affidavit of Smt. Shashi Mathur, Income Tax Officer, (TDS), who wrote communication dated 17th February, 2009 to the Commissioner of Income Tax, Allahabad. In para-4 of the counter affidavit, it has been stated in categorical terms as follows: "Since there is no order passed by the answering respondents with regard to the recovery fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly. The relevant para is reproduced below: - "Sub-section (1) of Section 201 provides that where deductor does not deduct or does not pay after deduction such person shall without prejudice to any other consequences which he may incur, be deemed to be an assessee in default in respect of such tax. The language of the explanation to Section 191 and sub-section (1) of Section 201 is almost similar except with one difference. In Explanation to Section 201, the deductor shall be deemed to be an assessee in default where the assessee has also failed to pay such tax directly, whereas in sub-section (1) of Section 201, the above condition is not mentioned. While interpreting the provisions of sections 191 and sub-section (1) of Section 201, a harmonious construction has to be adopted and such interpretation is to be put which gives meaning and purpose to both the provisions. Explanation to section 191 specifically mentions "....be deemed to be an assessee in default within the meaning of sub-section (1) of section 201 in respect of such tax." The above meaning thus has to be read in sub-section (1) of section 201, which has been specifically provided for. Not repeating the said condit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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