Case Law Details
Case Name : Court On Its Own Motion Vs Commissioner of Income Tax (Delhi High Court)
Appeal Number : Writ Petition (Civil) No. 2659 & 5443 of 2012
Date of Judgement/Order : 14/03/2013
Related Assessment Year :
Courts :
All High Courts Delhi High Court
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HIGH COURT OF DELHI
Court on its own Motion
Versus
Commissioner of Income-tax
WRIT PETITION (CIVIL) Nos. 2659 & 5443 of 2012
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sir, i have filed online return for AY 2014-15 and refund the amount deducted through tds under sec 80dd. Whether CPS asked verification or any document proof at later stage.
sIR,
AAME THING OCCURED TO ME AS A GOVT. SERVANT. A RECTIFICATION REQUEST WAS SENT. TO THAT RECTIFICATION REQUEST, THE CPC SENT A NOTE TO ME SAYING TO SEE THE LOCAL ASSESSING OFFICER WHERE OUR WORKING PLACE IS THERE. i MET THE LOCAL ASSESSING OFFICER AND HE PROMISED AND DOING THE THINGS. i HAVE TO WAIT FOR SOME MORE DAYS TO HEAR. SO FIRST SUBMIT THE RECTIFICATION ON LINE BY YOU OR BY UR AUDITOR AND WAIT TO HEAR FROM THEM.
DR BNRAO
I paid Rs 4.14 lakhs tax for 2008-09 financial year. out of which,Rs 346468 was deducted as TDS by DDO( deductor), Government of West Bengal. Now, the amount deducted is not reflected in 26 AS. After five years , I am asked to pay Income Tax of Rs 5.34 lakhs and interst Letter by the deductor to AC 19 Circle of Kolkata has no value. What to do. How I can get relief.Any knowledgeable person may kindly help me. How can an regular tax payer be saved from merciless, irresponsible and authoritarian misrule.
Pl help
It is a very good judgement. It answers many questions raised by me over more than three years in TAXGURU portal as a harassed small tax-payer. Thanks to all those who fought this case. Now, Is it applicable to the whole Country or only to DELHI? If I( with my AO in Bengaluru) face any of the problems that the Delhi High Court has issued Mandamus/direction on, can I quote this judgement while approaching my AO(at Bengaluru)or CPC? What systemic corrections have come into being(from TDS Deductee’s/assessee’s angle) after this judgement? or is there still a need to take up a Contempt Case against Respondents for non-implementation of all aspects of this Court Judgement in letter & spirit? How is it that such a bad handling of the system (involving Tax-Payers’ money) which has violated many of the provisions of IT laws/rules/regulations/policies over long years ( a big Scam in fact) against the interests of large sections of IT -Payers , has not become a matter of concern for CAG? To inspire confidence about the lawful functioning of the System,it is necessary to bring to the notice of the Public,various Administrative/Disciplinary actions that have been/ proposed to be taken on different functionaries for their omissions/commissions.
SEAR SIR
EXCELLENT INFORMATION. PL. CLARIFY THAT THE STATUS PF TDS MAY BE SOMETIMES REFLECTING AS “P” AND ‘F”. wHO IS RESPONSIBLE TO CHANGE THE STATUS p INTO F? wHEN i ASKED OUR CLARK WHY SOME AMOUNTS IN 26AS SHOWING P AND SOME F. AS I AM A GOVT. SERVANT AND TDS WAS DONE BY MY DEDUCTEE. THE CLARK GOT REPLY FROM AUDITOR THAT THE AMOUNTS ARE CORRECTLY REFLECTING IN 26 AS, THE STATUS PROBLEM WILL BE WITH NSDL AS THEY SHOULD VERIFY AND CHANGE THE STATUS TO “F”. pL. CLARIFY WHAT IS THIS P AND F STATUS IN FORM 26AS.
WHO ARE RESPONSIBLE TO CHANGE THE STATUS P TO F ?
dr.bnrao.,md.,PhD
I HAVE FILED INCOME TAX RETURNS OF 8 PEOPLE ONLINE. ALL EIGHT PEOPLE HAD SELF ASSESSMENT TAX RANGING FROM RS. 200/- TO RS. 5000/- THE SAID TAX CREDIT WAS DULY DULY REFLECTED IN 26AS AND PROPER THERE WAS NO FEEEDING ERROR IN CHALLAN NO, BSR CODE, DATE OF DEPOSIT. IN MY ACCOUNT INFORMATION-IN INCOME TAX WEBSITE SITE CLEARLY SHOWS NO TAX CREDIT MISMATCH. THEN I GOT DEMAND INTIMATION IN ALL EIGHT CASES. THEN I MADE AN APPLICATION FOR RECTIFICATION U/S 154 ONLINE UNDER HEADING NO FURTHER CORRECTION NEEDED REPROCESS THE SAME. IN RECTIFICATION AGAIN I GOT THE DEMAND OF EIGHT PEOPLE. THIS IS HARRASSMENT TO HONEST TAXPAYERS
Add-on:
1.It is not understood why the HC is, in some quarters, loosely and simplistically said / viewed to have handed down ‘guidelines’, or inappropriately mere ‘strictures’!. Perceptibly, if one minds to go through the Order carefully, the court might be noted to have, in more than one context,referred to the writ of ‘mandamus ‘ issued.
Imperative to be aware, what it means in legal parlance, to be precise- its legal implications and significance:
Under Article 32 and 226 of the Indian Constitution Supreme Court and High Courts are empowered to issue writs in such cases of breach of commonly known “Fundamental Rights” of any citizen by the state. By such writs the Judiciary can control the administrative actions and prevent any kind of arbitrary use of power and discretion.
There are 5 kinds of writs, of which, Mandamus is one.
A writ of mandamus or mandamus (which means “we command” in Latin), or sometimes mandate, is the name of one of the prerogative writs in the common law, and is “issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly”.
2. Another essentially clinching aspect, not argued and hence not gone into especially by the HC, is the adequately clear and loud mandate in section 205.
The said provision succinctly mandates, and operates as, – “Bar against direct demand on assessee”. In terms, it ordains that, – “ Where tax is deductible at the source under the foregoing provisions of this Chapter, the assessee shall not be called upon to pay the tax himself to the extent to which tax has been deducted from that income.” (emphasis supplied)
In contesting the cases of such category, therefore, the aggrieved deductees ought not to oversight, unwittingly or otherwise, but would be well advised to, not only in individualistic or self-centered interests but also in the common interests of one and all similarly aggrieved, suitably put across and sufficiently stress, among others, the foregoing aspects.
(may be contd.)
@vswami
The HC has in several contexts , as is seen, made quite clear two crucial points:
Many of the problems could have been avoided had the AO followed, besides others,
(A)the rules book in regard to the mandates of section 143 (1); and
(B) the department’s own procedural directives issued from time to time requiring the uploading of ‘arrears’ only after a proper verification, –
BOTH A MUST.
KEY NOTE: By and large, going by the ‘weighty’ observations of the HC , not only found in so many words but also by necessary implication/inference, in one’s strong view , it could be validly urged by every tax aggrieved taxpayer that, using a common colloquial expression, “THE BALL IS IN ASSESSING OFFICERS’ COURT”. To put it differently, and pithily stating, it could be validly pressed forth that, the AO, or for that matter even the newly introduced CPC, cannot go ahead with enforcing any ‘demand’, especially in any given case coming in the category of any of the instances broadly covered in the HC’s order. If he does so, in one’s longstanding conviction, he would be acting in gross violation of , not only the HC’s Order, but the department’s own instructions/directives said to have been issued (despite repeatedly) but had not been acted upon thus far.
Without the need to specially underscore,-it is now in the portasls of the CBDT alone to see to it that the speedest steps are taken to settle the ‘scores’, thereby set at rest once for all the ongoing hardships meted out to the honest taxpaying public,for too long to justify,at the behest of the subordinate authorities, including the AOs and the CPC under its own exclusive control.
Dear Sir,
In fact, such type of decision could have come much before. However, “der aye durust aaye”. Thanks to CBDT, for immediately reacting upon same and coming out with a notification no. F. no. -DIT(S) III/CPC/2012-13/Demand Management dated 21-03-2013. It will certainly smoothen and regularize the CPC problems commonly faced by the assessee. Hope, in future also such alertness will be shown and assessee will be put to at ease for his CPC issues.
Thxs
Satish Boob
I got an intimation for 4.09 lakhs. This was because CPC has added both short term and long term gains to arrive at capital gains which they have taxed at 30%. I should get a refund of 70,000 and have got a demand of 4.09 lakhs. This is for FY09-10. I have filed 3 rectifications and 1 RTI and met Joint commissioner of Income tax but all rectifications get rejected and in the RTI they mention some strange reason. The file has apparently been transferred to local Income tax but the CPC keeps on sending me reminders. I am extremely frustrated and wonder why honest tax payers are so much harassed.
If you have any similar issues and are in bangalore, please drop me a mail at parashar.borkotoky@gmail.com. Maybe we can go together and protest or do something.
@vswami
An add-on:
One of the grievances of taxpayers-deductees anxiously gone into by the Court pertains to the “U” factor -that is, unmatched TDS data.
One is aware of cases, in which the deductor is a leading PSB, both in the Form 16A issued to the deductee and in the 26AS, against a number of items adding up to thousands of rupees, the status is denoted ‘unmatched’. To one’s understanding, the HC has, in fact, adequately underscored the crucial point to the effect that by no imagination or for no rhyme or reason, the deductee could be expected to provide any explanation in respect of such items. For, if at all, it is entirely upto the deductor, who has within his knowledge, to explain, also set right the deficiencies.
In this context,the following should inevitably be borne in mind / kept in sharp focus:
1. The requirement of TDS calls for strict compliance by the Deductor / Deductor alone – by NONE ELSE; certainly not by the deductee.
2. This is a legal requirement and in complying therewith he acts as the ‘agent’ of the Revenue; certainly not as per the wish / at the behest of the deductee, who has no say in the matter.
3. In the scheme of things under the law, which is quite loud and clear, therefore,the sole responsibility lies with the Deductor – hence, essentially, it is he, and he alone, who could be sanely questioned by the Revenue or be expected to provide a satisfactory explanation/answer in respect of such difficulties,- more particularly, in cases where, on his own admission,as borne out both by Forms- 16A and 26AS, he has in fact deducted tax and paid into the Treasury.
Perceptibly, the newly introduced provision (albeit belatedly) – Section 200A, one would urge, lends full credence to the foregoing viewpoints. For that matter,as it, in terms, provides, in case of any shortfall in TDS,for whatever reason, it is recoverable only from the Deductor,- leaving no scope whatsoever for Revenue to proceed against the Deductee.
The soonest the CBDT issues clear-cut clarifications / instructions to its subordinates, the best for the gullible Deductees.
I am yet another victim among the lakhs of victims of this ‘scam’ by the CBDT. I received a notice
I got a U/S 245 letter saying my AY 2012 – 13 refund will be adjusted against demands from AY 2009-10 and 2010-11. I never received the demands, and they are not arrears since my employer had duly paid the TDS and I had paid Self Assessment tax on other income. All the tax payments are reflecting in my 26AS, but clearly not taken into account by the AO who uploaded fictitious demands to CPC. So, clearly, the matter is not just limited to TDS not showing in 26AS but goes much deeper.
A 2.33 lakh crore scam is being conducted which is harrassing lakhs of honest taxpayers. And the culprit this time is not a tax evader, but the taxmax himself !
I am one among the lakhs of victims of this fiscal terrorism unleashed by the CBDT. I received a notice that the refund due to me from my 2012 – ’13 return will be adjusted against “dues” from “demand orders” issued to me for Ays 2008 -09, 2009-10, 2010-11, and 2011-12. I never received the demands, and there were no dues in reality. All of them were in respect of Advance Tax amounts paid by me, but not taken into account by the AO inspite of all of them figuring in my 26AS statement.
The Finance Ministry has a fishing net with a mesh which can work the miracle of catching only the small fish and allowing the big fish to pass through unharmed.
The courts in India are choked with crores of cases like these due to the illegal and capricious acts of government.
Offhand:
It is observed that, the reported judgment has been delivered by the HC having regard to the difficulties galore faced by payees- taxpayers in being granted /procuring appropriate credit for TDS. There is no gainsaying that, those are attributable primarily to the innovations and imaginative measures taken by the Revenue; to be precise, in the aftermath of ‘computerization’ and ‘Central Processing of Income Tax Returns’. The court’s lamentations in the opening paragraph of the judgment deserve a special but anxious noting.
Equally deserves a special noting is Rule 37BA. It provides for the manner of allowing credit for TDS. At its tail end, however, is appended a clause, – “subject to verification in accordance with the risk management strategy formulated by the board from time to time”. The said clause is found to be clothed in a language the purport or import whereof is not discernible, hence left open to anybody’s intelligent guess . For, none can have a clear idea, much less visualise, either as to how many more problems (that is other than those spoken of in the court’s order) are in store or how long that would take to be prudently covered by the Board/ more so acted upon, as envisaged by the rule.
One such vital aspect remaining to be examined is centred on the newly inserted section 200A. On a tentative study, one’s gut feeling is, the said provision does not cover, adequately or otherwise, certain other problem areas bound to crop up some time in future , if that has not happened already. Obviously, not having been so far faced with or visualised both by the CA and the All India Federation for Tax Practitioners, court has not been required to deal with the implications of section 200A.
To hint at: Section 200A, in terms, confines itself to processing of TDS statement (s) made by the deductor for only a particular year. Strictly speaking, therefore, in a case where any incorrect particulars are furnished in that year’s statement , but not having been detected hence left to be reflected in that year’s statement, there appears to be no way for making any such ‘adjustments’ as envisaged in section 200A (1)- (a) and or (b).
(Unedited)
May be contd.
THE WORD “DIRECTION” IN MY PREVIOUS NOTES MAY PLEASE BE READ AS “GUIDELINES”.
THIS IS VERY GOOD DIRECTION BY HON’BLE HC. THE SAME SHOULD BE FOLLOWED BY DEPARTMENT IN ITS RIGHT SPIRIT. THIS PROBLEM IS AFFECTING NUMBER OF TAX PAYERS ALL OVER INDIA AND PROPER STEPS BY THE DEPARTMENT ARE MOST URGENTLY REQUIRED WITH SYMPATHETIC VIEW SO THAT THIS MAY HELP TO LOT OF PEOPLE. AT PRESENT DUE TO ONLINE WORKING WITHOUT ANY PAPER ETC. NO ONE IS ABLE TO UNDERSTAND WHY THE REFUND IS LESS OR WHY THE DEMAND IS RAISED AND SO ON. THE DEPARMENT SHOULD SEND REQUIRED HARD COPY TO ALL IN WHOSE CASE SUCH AJDUSTMENTS ARE MADE. AT PRESENT EACH SUFFERED PERSON FEELS UNJUSTIFIED.
What about cases where even Advance tax paid is not shown in 26AS in the correct assessment year i.e instead of A.Y. 2012-13 it is shown in A.Y. 2011-12.
original tds copy should be accepted as proof instead insisting entry in 26as . will help us to us senior s from stressful harrassmentbank made mistakes
reality if ito accepts true tds from banks deductors lot of harassment to like senior citizens v r can be saved rather denying in absence of entry in 26 as for fault of deductors our October correction by bank is not in 26as
un wanted stress created with lot consumed time
a nice petitioned by mr.sanjeev khanna and a good response from
HC
Prey to god for earliest action so that deserving assesses can get relief.
Sir,
Please do away with TDS and let the assesse be responsible. Itf the government thinks this is not avoidable them let us file a FIR for ecomomic offence and make the deductee responsible. Or let the Income tax department pay us interest @ 18% pa.
To the Government :- the choise is yours please pick one !
very good and informative articles. wish that you open one helpline for the affected assesses and help them to get benefit of this order.
WELL, THE GOVT BABUS WILL DO NOTHING.YOU HAVE TO MOVE HC FOR YOUR EACH AND EVERY RIGHTS.AFTERALL FOR WHOSE BENEFIT ALL THIS IS DONE?
PL.TRAIN THESE PEOPLE TO DO THEIR DUTIES.