Burden of proof – Deduction of tax at source by contractee on basis of job works Dalmiya Brothers vs Commissioner of Trade Tax (Allahabad HC)

Burden of proof – Deduction of tax at source by contractee on basis of job works Dalmiya Brothers vs Commissioner of Trade Tax (Allahabad HC)

Burden of proof – Deduction of tax at source by contractee on basis of job works – Amount purported towards tax was deducted by a deductee which has been found by the Assessing Officer in the assessment proceeding as not payable by the assessee. Once this finding has been given in assessment proceeding and the petitioner has been held not liable to pay any tax, the question of placing the burden again upon the petitioner, at the time of verification is, wholly misplaced and beyond jurisdiction. Such exercise of placing the burden was permissible only during assessment proceeding and not thereafter.

T.D.S. certificate was accepted by the Assessing Officer during the assessment proceedings. The books of account was accepted and the petitioner was found that he was not exigible to sales tax for the business which he was carrying as job works. The Assessing Officer after verifying the books of account passed the assessment order and directed the office to verify the T.D.S. certificates and that if the said T.D.S. certificate was found to be correct, the amount deducted at source was to be refunded to the petitioner. The effect of the assessment order was to verify the T.D.S. amount. The verification that was required to be done by the Assessing Officer was whether the deductee had deposited the money in the Government Treasury and if the amount was deposited, the refund was to be given by the petitioner. This was the only limited area of verification that was required to be done as per Rule 90 of the U.P. Trade Tax Rules, 1948. Consequently, the exercise done by the respondents could not have been gone and was without jurisdiction. The impugned orders cannot be sustained and is quashed. The writ petition is allowed.

 

A writ of mandamus is issued directing the respondents to refund the amount along with interest as per the rate specified under Section 29(2) of the Act. The Assessing Officer will verify as to whether the amount shown in the T.D.S. certificate has been deposited in the Government’s account by the deductee. Upon such verification the respondents will refund the amount along with interest. This exercise shall be carried out within three months from the date of production of a certified copy of this order.

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