TMI Blog2013 (1) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... ate has been issued by deductor he cannot claim refund of the amount deducted because the tax deducted primarily constitutes income of deductee and he can only claim the refund of the amount – In favour of assessee Contravention of Rule 46A of the Income Tax Rules, 1962 - AO had required the assessee to submit the invoices/vouchers - the relevant documents were not available since the same got mutilated/ destroyed while shifting of office – Held that:- In regard to personnel expenses are concerned, no interference is called for with the said findings because the impugned amount was part of the overall salary payments debited to P&L A/c. And provision for audit fees is concerned, assessee had submitted a bill vide ADB-101/04 dated 12/06/2003 issued by Price Waterhouse mentioning that the same is claimed towards statutory audit fee. To examine genuineness of evidence - Remand back to AO - ITA No.1011/Del/2012 - - - Dated:- 7-12-2012 - R.K. Gupta and S.V. Mehrotra, JJ. Appellant Rep by: Shri Satpal Singh, Sr. DR Respondents Rep by: Shri Akash Uppal Shri Akshay Anand, AR ORDER Per: S.V. Mehrotra: This appeal filed by the Revenue is directed against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e available to it for its operations on the basis of time and effort spent by the resources hired by the assessee company. In this agreement it had been specifically mentioned that assessee company shall issue debit note in favour of Mysore Breweries Limited giving details of the cost allocated to it. During the year under consideration, the assessee had raised debit notes amounting to Rs.3,35,85,000/- on Mysore Breweries Limited in terms of said arrangement. The TDS certificate issued by M/s Mysore Breweries Limited also showed that tax at source was deducted on total payment made to the assessee amounting to Rs.3,35,85,000/-. The tax so deducted had also been deposited into Government Account relevant for the year under consideration. The assessee also submitted that a credit note of Rs.80,88,000/- was raised on M/s Mysore Breweries Limited as the various debit notes issued were in excess by such an amount. The submission of assessee was that it was only a clerical mistake of the part of M/s Mysore Breweries Limited in issuing a TDS certificate showing the inflated and wrong figure. A confirmation to this effect was also filed from M/s Mysore Breweries Limited. The AO did not acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the appellant s hand. Therefore, the differential amount between the amount shown in the TDS certificate and the amount actually paid/received on that count, cannot be brought to tax, solely on the ground that the TDS certificate disclose the amount as having been credited to the appellant s account. 10. He, accordingly, held that the actual reimbursement component received by the assessee during the year was Rs. 2,54,97,000/- and not Rs. 3,35,85,000/-, as disclosed in the TDS certificate. 11. We have considered the submissions of both the parties and have perused the record of the case. 12. Admittedly, as per TDS certificate issued by Mysore Breweries Limited, the total reimbursement made to the assessee as per their newly arrangement was Rs. 3,35,85,000/-. However, in the books of assessee, it was only Rs. 2,54,97,000/-. The assessee had explained that a credit note of Rs. 80,88,000/- issued by it in favour of Mysore Breweries Limited was not accounted for by them and, therefore, by this amount they had shown higher reimbursement to assessee. The contention of the assessee was that it was a case of clerical error committed by subsidiary Mysore Breweries Limited which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f income or the deductee(s) undertakes not to claim such credit. 19. He, therefore, concluded that the excess TDS made by the deductor could not be claimed as a refund since it had already issued a TDS certificate to the assessee and the assessee-deductee had also claimed a refund of this excess amount in its return of income. 20. Ld. CIT(A), thereafter examined whether the assessee deductee could seek a refund on principles of equity, unjust enrichment and the general principle that the government was not eligible to retain any payment by way of tax beyond the liability in this account, and, inter-alia, observed as under: - In fact the CBDT circular no. 14(XL-35) dated 11/04/1995 also exhorts the AO s to assist in every reasonable way the claim refund of excess TDS. The relevant portion of circular is reproduced hereunder: Officers of the department must not take advantage of ignorance of an assessee as to his rights. It is one of their duties to assist a taxpayer in every reasonable way, particularly in the matter of claiming and securing reliefs and in this regard the officers should take the initiative in guiding a taxpayer where proceedings or other part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is dismissed. 24. Ground no. 3 reads as under: - 3. The ld. CIT(A) erred in law and on the facts of the case in deleting the addition of Rs. 5,63,390/- out of Rs. 47,80,510/- made by the AO on account of provision of expenses, in contravention of Rule 46A of the Income Tax Rules, 1962. 25. Brief facts apropos this issue are that the AO had required the assessee to submit the invoices/vouchers for Rs. 47,80,510/-. However, the assessee showed its inability to produce the said invoices submitting that the relevant documents were not available since the same got mutilated/ destroyed while shifting of office from Delhi to Bangalore in the year 2005. He, therefore, made a disallowance of Rs. 47,80,510/-. 26. Before ld. CIT(A) the assessee had submitted collateral and circumstantial evidence in respect of personnel expenses and audit fees and in this regard ld. CIT(A) has observed as under: - i) With regard to leave travel allowance (Rs. 2,54,672/-), perquisites provided to its expatriate employees (Rs. 67,388/-) and salary (Rs. 31,192/-) totaling Rs. 3,53,252/-. It was submitted that they form part of the overall salary payment of Rs. 3,24,32,792/- debited to Prof ..... X X X X Extracts X X X X X X X X Extracts X X X X
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