TMI Blog2019 (2) TMI 1926X X X X Extracts X X X X X X X X Extracts X X X X ..... due credit for the same. Whether CIT(A) was correct in directing the Assessing Officer to grant an opportunity to the assessee to furnish the correct PAN No s of the deductees? - CIT(A) correctly directed the Assessing Officer to re-compute the tax u/s. 201 of I.T. Act at the rate of 10% for those deductees, where the assessee furnished the PAN Nos. This direction of the CIT(A) is in the interest of justice and equity. Further, we make it clear that the assessee has to produce correct Permanent Account Number (PAN) of the deductee, so as to get corresponding credit. With these observations, the appeals of the Revenue are dismissed. Jurisdiction of the Assessing Officer to pass an order u/s 201 and 201(1A) - assessee is treated as an assessee in default - assessee contented that there should be proceedings against the deductee/payee and the finding to be rendered by the revenue that the taxes are not recoverable from the deductees and only in such an eventuality, the assessee can be declared as an assessee in default - HELD THAT:- Section 201 has been amended with effect from 01.07.2012 whereby the burden of proving that the payee / deductee had paid the taxes is on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled 12 appeals. Against the Revenue s appeals, the assessees have filed cross objections. The relevant assessment years are 2013-2014 to 2016-2017. The order s of the CIT(A) arises out of the order s passed u/s 201(1) and 201(1A) of the Income-tax Act. 2. Common issues are raised in the appeals and cross objections. Hence, they were heard together and disposed off by this consolidated order. 3. There is a delay of 23 days in filing the assessees appeals. The Managing Partner of the three assessee-firms had filed petition for condonation of delay along with affidavit stating the reasons therein for the delay in filing the appeal before the Tribunal. 3.1 We have perused the reasons stated in the affidavit for filing the appeals belatedly. We find the delay in filing the appeals is not on account of any latches on the part of the assessee-firms, and there was sufficient cause for the delay in filing these appeals belatedly. Hence, we condone the delay of 23 days in filing these appeals by the assessees and proceed to dispose off the same on merits. 4. We shall first adjudicate the Revenue s appeal. Revenue s appeals 5. The grounds raised in the Revenue s appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the assessee should be granted an opportunity to file Form 15G/ 15H collected by the assessee, but could not be uploaded. The CIT(A) held that defects in Form 15G/15H are curable defects and remitted the issue to the Assessing Officer to examine Form 15G/15H to be produced by the assessee. The relevant findings of the CIT(A) are reproduced below: 4.5.2. Considering the arguments of the learned A.R., it would be relevant to examine whether the defects in Form 15G / 15H are curable or not. A similar issue was before the Hon'ble ITAT Cochin in the case of Jacob Thomas, ITA No 200/Coch/2016, and Tribunal vide order dated 01.11.2016 held as under: 6.2 As mentioned earlier, non filling up of the column in Form 15G/15H by the payees are only technical default, which could have been corrected had the assessee been given an opportunity. In the interest of justice and equity, I am of the view that the assessee should be given an opportunity to correct the technical error with regard to the defaults that is containing in Forms 15G/15H. Therefore, the matter is remitted to the Assessing Officer. The assessee shall produce the corrected Form 15G/15H for the relevant period f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and evidences of the case. 2. It is submitted that the learned Commissioner of Income Tax (Appeals) was correct in granting one more opportunity to the assessee for uploading the form 15G/15H in the facts and circumstances of the case and also in the interest of the natural justice. So no interference is called for in respect of the ground no. 2 raised by the department. 3. In respect of ground no. 3 raised by the department, it is submitted that the learned Commissioner of Income Tax (Appeals), rightly remitted back the issue to the ITO. It is further submitted that it is unfair and unjust to interfere at this distance of time since the ITO have already initiated proceedings based on the direction by CIT(A) and it is in the advanced stage of completion. It may also be noted that the action of the CIT(A), is in accordance with law. 4. Regarding ground no. 4, it is submitted that the principle applied in the case of Jacob Thomas, ITA No. 200/Coch/2016 vide order dated 01.11.2016 applies. 5. Regarding ground no. 5, it is submitted that the CIT(A) rightly directed the AO to re-compute the tax portion of left out PAN is in accordance with section 206AA( 6) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions empowers the CIT(A) to pass an order as he thinks fit. Therefore, the CIT(A) did not travel beyond the scope of section 251(1)(c) of the I.T. Act. Hence, we do not find any infirmity in the orders of the CIT(A) with regard to remitting the issue to the file of A.O. to give an opportunity to the assessee to produce Form No.15G / 15H collected before the due date from the deductees and grant due credit for the same as per the guidelines laid down by the earlier order of the Tribunal mentioned in the impugned orders of the CIT(A). 5.7 As regards Ground No. 5, we are of the view, the CIT(A) correctly directed the Assessing Officer to re-compute the tax u/s. 201 of I.T. Act at the rate of 10% for those deductees, where the assessee furnished the PAN Nos. This direction of the CIT(A) is in the interest of justice and equity. Further, we make it clear that the assessee has to produce correct Permanent Account Number (PAN) of the deductee, so as to get corresponding credit. With these observations, the appeals of the Revenue are dismissed. 5.8 The cross objections filed by the assessees are in support of the orders of the CIT(A) and hence same are dismissed as infructuo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions like sections 142, 143, 144, 148 etc. are available to the department. There is also another important aspect. The ITO is vested with all the powers of the civil court regarding issue of summons, enforcing attendance etc. and hence he can make use of the said powers to see that the deductee has paid tax or shown the same in his income or take steps to make an assessment on him. The ITO also can refer the case to the ITO having jurisdiction over the deductee to conduct enquiries regarding his assessment etc. It may be noted that the assessee do not have those vast powers and at best he can only request the deductee to furnish details and nothing more. Therefore any attempt by the ITO to pass on the said burden to assessee should be rejected as unreasonable and unpractical. This should be the conclusion after making a harmonious reading of the provisions of sections 190, 191 and section 201 of the Act and the scheme of the Act. In the circumstances it is clear that section 201 can be resorted to only after carrying out the above exercise by the ITO and hence order is illegal. In support of the above contentions the appellant wishes to place reliance on the bind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the whole or any part of the tax in accordance with the provisions of this Chapter on the sum paid to a resident or on the sum credited to the account of a resident shall not be deemed to be an assessee in default in respect of such tax if such resident- (i) has furnished his return of income under section 139; (ii) has taken into account such sum for computing income in such return of income; and (iii) has paid the tax due on the income declared by him in such return of income, and the person furnishes a certificate to this effect from an accountant in such form as may be prescribed: ; 6.3 In view of the above amendment, the burden is cast on the assessee to prove that the deductee / payee had duly paid the taxes on the income which ought to have been subjected to TDS by the assessee-deductor. In the instant cases, the relevant assessment years are 2013-2014 to 2016-2017, and the amended provision has application. Therefore, this ground raised by the assessee is rejected. Ground No.4 7. Ground No. 4 reads as follows: It is submitted that the learned Assessing Officer failed to fix the liability on the correct person who is responsible for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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