Principal Commissioner Ofincome Tax, Siliguri v. Before

OD-11 ITAT/233/2022GA/2/2022 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction [Income Tax]ORIGINAL SIDE PRINCIPAL COMMISSIONER OFINCOME TAX, SILIGURI -Versus- SMT. NIRMALI BHADRA Appearance:Mr. Tilak Mitra, Adv....for the appellant. Mr. Himangshyu Kumar Roy, Adv.Mr. Paban Kumar Roy, Adv.Mr. Bhaskar Sengupta, Adv... . for the respondent. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM -And- The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA Date : 16[th] December, 2022. The Court : This appeal filed by the revenue under Section 260A of the Income Tax Act, 1961 (the ‘Act’ forbrevity) is directed against the order dated 5[th] June, 2020passed by the Income Tax Appellate Tribunal, “B” SMC Bench,Kolkata (the Tribunal) in ITA No.77/Kol/2019 for the assessmentyears 2010-11. The revenue has raised the following substantialquestion of law for consideration: (i)Whether the Learned Income Tax AppellateTribunal erred in law in holding that theamount shown in 26AS only should be taken intoconsideration even when the TDS certificateindicates a higher receipt ? We have heard Mr. Tilak Mitra, learned standing counselappearing for the appellant/revenue and Mr.Himangshu Kumar Roy,learned counsel assisted by Mr. Paban Kumar Roy and Mr. BhaskarSengupta, learned Advocates for the respondent/assessee.On going through the order passed by the learnedTribunal, we find that the learned Tribunal had done anelaborate fact finding exercise and has pointed out as to howthe assessing officer erroneously relied upon only the figuresmentioned in the TDS certificate and ignored Form No.26AS. Forbetter appreciation it would be relevant to quote the findingrecorded by the learned Tribunal.“On perusal of the same, it shows that theassessee for this AY (2010-11) (FY 2009-10) hasreceived income of Rs.3,95,030/- and TDS of Rs.39,569/-has been deducted and deposited the same in theGovernment account. Thus, I note that there are twodocuments before me (i) Form 16A-TDS Certificate and(ii) Form 26AS, [which is downloaded from the Income-tax Department website], which shows that for the sameassessment year (AY) two different figures from twosources. The AO has taken the figures from the TDS Certificate issued by the said company (M/s. Uni pay)as gospel truth to make the impugned addition. The AObeing a quasi judicial authority should be fair whileframing the assessment of the assessee under the Act(income-tax). The AO had in his hand also Form 26AS,which reveals that an amount of Rs.3,95,030/- wascredited in the assessee’s account for this AY (2010-11) (FY 2009-10). TDS amount of Rs.39,569/- has beendeducted and deposited in the Government Account. Ifind that Form 26AS is maintained by the Income-taxDepartment. In such a scenario, in the interest ofjustice and since it is second round of assessee’sappeal, and keeping in mind that there should befinality of the issue I am deciding as infra. First ofall, Form 16A is generated by M/s. Unipay MarketingPvt. Ltd. which is payer and the assessee who is thepayee has no control over it. Even if the amount ispaid it should have been accounted for in assessee’sbank account, which is not the case of the AO. Simplybecause there is difference in the claim of assessee inrespect of TDS credit and the corresponding income, theAO has made the addition which cannot be accepted whenthe Form 26AS gives a different picture, which alsoassessee has no control; and 26AS Forms are generatedby the Income-tax department and the figures come closeto the assessee’s contention. Therefore, I am of theopinion the assessee’s income should be taken asRs.3,95,030/-, which is shown in Form 26AS (downloadedfrom the Income tax Department website) and she shouldbe given TDS credit of only Rs.39,569/- as reflected inthe Form 26AS. I direct the AO to adopt these figures and compute the taxable income of assessee accordinglyas per law.” and compute the taxable income of assessee accordinglyas per law.” In this appeal, the above factual position is not beingdisputed by the revenue. Thus, we are of the clear view thatthere is no substantial question of law much less substantialquestion of law arising in this appeal for consideration. Accordingly, the appeal filed by the revenue(ITAT/233/2022) is dismissed. Consequently, the connected application for stay (IANo.GA/2/2022) also stands closed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) As./ S.Das