The Commissioner Of Income ... vs Shri Toshio Sakai
2007 Latest Caselaw 818 Del

JUDGMENT

V.B. Gupta, J.

1. Present appeal has been filed by Revenue under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as 'Act') against the order dated 7th July, 2006 passed by the Income Tax Appellate Tribunal (hereinafter referred to as 'Tribunal'), Delhi Bench 'F' in ITA No. 2711/Del/2003 for the assessment year 1998-99.

2. The brief facts of this case are that the assessed filed return of income for the assessment year 1998-99 declaring total income of Rs. 6,86,377/- and retention money paid to him in Japan under the head 'Income from other sources' at Rs. 21,43,783/-. The Assessing Officer noted that the assessed had been paid certain further salary in Japan which has not been offered by him for assessment in India. The assessed submitted that on such salary, taxes had been paid directly by his employer. The Assessing Officer did not give credit to the assessed of the taxes paid by his employer and computed the assessment at Rs. 59,13,594/-.

3. The assessed filed an appeal before the Commissioner of Income Tax (Appeals) who held that tax paid on behalf of the assessed was a matter of verification from record and accordingly called for report from the concerned Income Tax Officer who confirmed that an amount of Rs. 10,61,915/- has been paid by the employer of the assessed and as such appeal filed by the assessed was accepted.

4. Being dissatisfied with the order passed by the Commissioner of Income Tax (Appeals), Revenue filed an appeal before the Tribunal. The Tribunal vide its impugned order dismissed the appeal filed by the Revenue.

5. The case of the Revenue in the present appeal is that the assessed had not declared the salary received from its employer in Japan and no certificate in the prescribed form No. 16 was filed by the assessed either before the Assessing Officer or before the Commissioner of Income Tax (Appeals) and the tax collected by the employer on account of extra salary paid on which no tax had been deducted, did not amount to tax deduction at source.

6. The question of TDS in respect of assessed was a matter of verification from the record and the Assessing Officer in his report has verified and confirmed the credit of TDS attributable to the assessed, that out of the TDS of Rs. 24,14,343/- made by the employer of the assessed, a sum of Rs. 10,61,915/- related to the TDS of the assessed. Apparently this amount has been collected as tax deducted at source. That being the position, the Department should have given credit for the same to the assessed or refunded the same to his employer. When any amount of tax is recovered under Section 201(1) of the Act by treating the payer as assessed in default for not having deducted tax at source, that amount is collected by the Department as tax deducted at source and nothing else. Thus, the Department is under an obligation to adjust that amount under the provisions of Section 206 of the Act against assessment of the income in the hands of the payee or else to refund such amount to the payer. The provisions of Section 201(1) of the Act do not create a charge of new tax.

7. The above being the position, no fault can be found with the view taken by the Tribunal. Thus, the order of the Tribunal does not give rise to a question of law, much less a substantial question of law, to fall within the limited purview of Section 260-A of the Act, which is confined to entertaining only such appeal against the order which involves a substantial question of law.

8. Under the circumstances, we do not find any infirmity in the order passed by the Tribunal.

9. Accordingly, the present appeal filed by the Revenue is, hereby, dismissed.