Is There No Respite From The Dept’s TDS And Refund Harassment?
Subash Agarwal, Advocate
The author is irked by the fact that despite severe strictures and clear cut directions by the High Court, the CBDT is not taking any steps to address the problem of non-grant of TDS credit in a case where the deductor/ payer is at fault. He cites several judgements to emphasize that in such cases, the taxpayer/ recipient cannot be denied TDS credit and urges the CBDT to speedily issue suitable directions in the matter
Recently, Hon’ble Delhi High Court was seized of, inter alia, the matter under consideration in a case where one Sri Anand Prakash, FCA addressed a letter to the Hon’ble High Court raising various issues facing the helpless assessees and claimed that because of the fault of the department, assessees are being harassed. The Hon’ble High Court took judicial notice of the letter, converted it into a PIL and made CBDT a party. The said case has now been reported as Court On Its Own Motion vs. CIT 352 ITR 273 (Del.)
The CBDT’s inactivity / silence in this regard is perpetuating the assessee/tax deductees’ agony though there was a clear-cut direction by the High Court to the CBDT for issuing suitable directions in this regard
On the issue of denial of justifiable TDS credit by the A.O.s due to wrong uploading of data by the deductor of TDS, the court made the following observations –
“An assessee as a deductee should not suffer because of fault made by deductor or inability of the Revenue to ask the deductor to rectify and correct. Once payment has been received by the Revenue, credit should be given to the assessee. The CBDT should issue suitable directions in this regard. The department’s response on the action taken against deductors for non-compliance is unfortunate and unsatisfactory and it purports to express complete helplessness on the part of the Revenue to take steps and seeks to absolve them from any responsibility. Denying benefit of TDS to a taxpayer because of the fault of the deductor causes unwarranted harassment and inconvenience. The deductee feels cheated. The Revenue cannot be a silence spectator, wash their hands and pretend helplessness. S. 234E has now been inserted by the Finance Act, 2012 to levy a fee of Rs.200 per day for default of the deductor to file TDS statement within due date. It is unfortunate that the Board did not take immediate steps after even noticing lacuna and waited till FA 2012. The stand of the Revenue that they can only write a letter to the deductor to persuade him to correct the uploaded entries or to upload the details is not acceptable. The AO must use his power and authority to ensure that the deductor complies with the law”
2. On the issue of wrongful adjustment of the alleged arrear demands against the refunds due by the CPC Bengaluru without any mechanism of affording any opportunity of hearing to the assessees as per the mandate of sec. 245, the department accepted before the Hon’ble High Court that wrong and incorrect demands have been uploaded in the CPC Bengaluru and that the department has also not followed the mandate and requirement of sec.245 before making the adjustment.
3. The Hon’ble High Court was pleased to issue a writ of mandamus with the following observations / directions –
“Inspite of the opportunity given to the Revenue to take steps, prescribe, adopt a just procedure, to correct the records, etc., nothing has been done and they have not taken any decision or steps. The affidavits filed subsequently after 31st August, 2012, are silent on this specific point. In these circumstances, we direct and issue the third mandamus and direction which will be applicable only to cases where returns have been processed by the CPC Bengaluru and refunds have been fully or partly adjusted against the past arrears while passing or communicating the order under Section 143(1) of the Act, without following the procedure under Section 245 of the Act. In such cases, it is directed that:-
A. All such cases will be transferred to the Assessing Officers;
B. The Assessing Officers will issue notice to the assessee which will be served as per the procedure prescribed under the Act;
C. the assessees will be entitled to file response/reply to the notice seeking adjustment of refund;
D. After considering the reply, if any, the Assessing Officers will pass an order under Section 245 of the Act permitting or allowing the refund.
E. The Board will fix time limit and schedule for completing the said process.”
4. Pursuant to the Hon’ble Delhi High Court’s direction in the above mentioned case, CBDT has issued clarification vide letter dated 21.03.2013. In the said clarification, CBDT has dealt with the above-mentioned observations of the High Court and directed the A.O.s to follow the procedure prescribed by section 245 for affording the opportunity to the assessees before making any adjustment of refund against the alleged arrear demands.
Unfortunately the issue relating to the denial of genuine TDS credits has been left untouched.
5. In an earlier Circular 3/2011 dated 13.05.2011 (pdf), CBDT has recognized the prevalent difficulty faced by the assessees due to wrong uploading of data by tax deductors but has fallen short of implementing / suggesting proper steps to mitigate the assessee’s (deductee’s) difficulty. It has merely addressed a limited issue and declared that to overcome the challenge of mismatch between Form 16A and Form No. 26AS, a common link has been created between the TDS certificates in Form No. 16A and Form No. 26AS through a facility in the Tax Information Network (TIN Website) which will enable a deductor to download TDS certificates in Form No. 16A from the TIN website based on the figures reported in e-TDS statement filed by him.
But where there is wrong feeding of data or where the tax deductor fails to file TDS returns but has deducted TDS and the TDS credit is denied to the assessee, there is a stony silence on the part of CBDT. Can the deductee be denied the rightful claim of TDS which has been deducted while making payments to him by the deductor, who is the agent of the government?
The CBDT’s inactivity / silence in this regard is perpetuating the assessee/tax deductees’ agony though there was a clear-cut direction by the High Court to the CBDT for issuing suitable directions in this regard.
CBDT could have obviated the unnecessary confusion and avoided unnecessary litigation by clarifying the issue by directing the A.Os to give the appropriate credit to the deductees in a petition u/s 154 wherever satisfactory proof of tax deduction is furnished and directing strict action upon the erring deductors. But CBDT’s stony silence on the issue is deafening
6. There is no denial of the fact that there is a duty on the part of the deductor to furnish TDS return with correct data and issue a certificate to the payee u/s 203 in the form prescribed by the I.T rules. If the deductor does not conform to the requirements of law, there is violation by the deductor to comply with section 203, so that a penalty of Rs. 100/- per day for each day till the omission is made good is leviable u/s 272A(2)(g) of the Act. However, the power to ensure issue of TDS certificate after filing correct TDS return by the deductor is with department and not the deductee. The deductee is helpless in the situation and has no power to enforce correction or enforce filing of TDS return by the deductor. Where a defect is found, it is the assessing officer who has to take action and get it rectified by the defaulter, being the deductor, who acts as the agent of the govt.
7. The most important provision again in this regard in section 205, which bars a direct demand on an assessee by specifically stipulating that “the assessee shall not be called upon to pay the tax himself to the extent to which the cash has been deducted from that income”.
Though section 199 expects that furnishing of the prescribed certificate to be issued by the deductor, section 205 by barring a direct demand on the assessee, where deduction has been made, gives the right to credit. However, this provision is being overlooked by the department and the assessee’s refund is withheld or he is asked to pay the tax, which is actually paid on his behalf but whose credit is denied wrongfully.
8. CBDT could have obviated the unnecessary confusion and avoided unnecessary litigation by clarifying the issue by directing the A.Os to give the appropriate credit to the deductees in a petition u/s 154 wherever satisfactory proof of tax deduction is furnished and directing strict action upon the erring deductors. But CBDT’s stony silence on the issue is deafening.
9. Fortunately, the Courts/ Tribunals in the country are conscious of the injustice meted out to the assessees by the authorities and has rightfully restored the right of the assessees in the deserving cases. However, these cases pertain to the period when online filing of TDS / I.T. Returns was not in vogue but nonetheless these case-laws highlight the injustice meted out to the assessees by wrongful denial of the justifiable TDS credits by the department and the judiciary’s response to it. These case-laws can be applied in the present situation where TDS credit is not being given due to wrong uploading of TDS data / non filing of TDS return by the tax deductor.
(a) In the case of ACIT vs. Omprakash Gattani 242 ITR 638 (Gau), the A.O refused to give credit for TDS on the ground that the date of actual payment to the government was not intimated. Assessee’s bank account was attached by initiating recovery proceedings. The assessee filed a writ petition and succeeded before the single bench of the Hon’ble Gauhati High Court. The department filed an appeal before the division bench. It was confirmed by the Appeal Court that the assessee was entitled to credit for TDS even though the deductor might not have paid the amount to government account. The High court pointed out that where tax has been deducted, direct demand on the payee is not justified and the department should proceed against the deductor.
(b) Where the employee is unable to get TDS certificate from his employer, but there is evidence to show that tax had been deducted at source, assessee cannot be denied credit. In such a case, the authorities were directed to exercise the powers to enforce the law, while staying the collection of tax. Pl refer Joseph (Capt. J. G.) vs. JCIT 303 ITR (AT) 395 (Mum.)
(c) Even if the deductor did not deposit the tax deducted at source to the credit of the Central Government, revenue cannot recover the amount from the assessee. Pl refer Yashpal Sahni vs. Rekha Hajarnavis, ACIT 293 ITR 539 (Bom)
10. The remedy available to the assessee in the case of denial of TDS credit not reflected in the Form No. 26AS is to file appeal before the CIT(A) where the grievance, in most likelihood, will get redressed.
It is pertinent to note that appeal can be filed even where no assessment has been done u/s 143(3) but the return has been processed u/s 143(1).
Where the time for filing appeal has expired, the assessee may file the petition u/s 154 before the A.O. and produce the TDS certificates issued by the Bank. If he rejects the application, there is remedy in the form of appeal. However, this will be a risky route since the A.O. has very limited jurisdiction in rectification proceedings u/s. 154. Further, the jurisdictional A.O. may refuse to act where the processing is done by CPC, Bengaluru. In such situations, there is only writ remedy, which is costly as well as time consuming.
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