TMI Blog2021 (7) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... radesh High Court held that credit should be given to the contractor whether certificate is issued in the name of joint venture or in the name of contractor. Thus, all the decisions cited by learned Counsel for the assessee are found distinguishable and not applicable to the facts of the present case. For the reasons given above, we are of the view that the order of the CIT(A) cannot be sustained and the credit for TDS cannot be allowed to the assessee in facts and circumstances of the case. Appeal of the Revenue stands allowed. - ITA No.547/Bang/2013 - - - Dated:- 12-7-2021 - Shri N.V. Vasudevan, Vice President And Shri Chandra Poojari, Accountant Member For the Appellant : Smt. R. Premi, JCIT(DR)(ITAT), Bengaluru. For the Respondent : Shri. C. Narayan, CA ORDER PER N.V. VASUDEVAN, VICE PRESIDENT This is an appeal by the Revenue against the order dated 30.01.2013 of CIT(Appeals)-III, Bengaluru, relating to Assessment Year 2007-08. 2. The facts and circumstances under which the said appeal by the Revenue arises for consideration are the assessee is a company incorporated under the Companies Act, 1956 and engaged inter alia in the bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se orders issued to the assessee. By letter dated 11.12.2000, (Nokia Siemens Networks Private4 Limited (NSN) which had subsequently acquired the network business of Nokia India) confirmed that in the books of NSN, the said expense accruals of 1NR 20,27,96,304/- were reversed in FY 2007-08 (AY 2008-09) in accordance with NSN accounting policy and actual invoiced expenses recorded against same. Accordingly, accruals to the extent of services not fully rendered and / or are not in compliance of contractual terms get reversed in NSN s accounting process and fresh accruals are provided for services rendered and not invoiced as at year end by vendor. In accordance with this policy, actual invoices received from Sasken amounting to 1NR 5,81,28,005 were booked for services rendered by the assessee during FY 2007-08 (AY 2008-09). Fresh accruals were provided for unbilled services as on Mar 31, 2008 for 1NR 7,41,34,119 on the basis of the above accounting policy in relation to the Assessee s contracts and TDS deposited on same by NSN. 5. The assessment was concluded vide assessment order under section 143(3) of the Act dated December 17, 2009 wherein income returned by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provide for the appropriation by the Government of the TDS deducted in excess, and since a refund is not possible, the only fair alternative is to give the credit for the same to the person whose tax is deducted at source. Not giving the credit in these circumstances would amount to unjust enrichment, to which- the Government cannot by law be a party. This is clearly brought out by the ITAT Delhi in the case of Escorts Ltd Vs. Deputy Commissioner of Income Tax [(Delhi ITAT) 15 SOT 368]. 7.0. I also have to note that the appellant company has submitted an undertaking that no credit has been claimed by the company in respect of this amount of ₹ 1,13,86,500/- in any other proceeding. The AO is accordingly directed to allow the credit of the TDS to the appellant company in the year when the same was deducted by the depositor ie. M/s Nokia Siemens Networks P Ltd and so certified by it. 8. Aggrieved by the order of the CIT(A), the Revenue has preferred the present appeal raising the following grounds of appeal: 1. The order of the learned CIT(A) is opposed to law and facts of the case. 2. On the facts and in the circumstances of the case the learned CIT( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Third Member case in the case of Pradeep Kumar Dhir (supra). As per section 200A(1) (f) of the Act, inserted by the Finance Act, 2009, w.e.f. 1.4.2010 provides that if a deductor has remitted excess amount of TDS into government account, he/she can claim the refund before Assessing Officer of TDS. It was also submitted that CBDT circular No.285 dated 21-10-1980 prescribes procedure for regulating refund of amounts paid in excess of tax deducted and / or deductible. The CBDT has issued another circular No.2/2011 dated 27-4-2001 wherein the circular No.285 and its scope were extended on account of insertion of new Chapter XVII of the Act. As per circular No.2 /2011 section 192 to 194LA of the Income Tax Act, 1961 was covered. Paragraph 1.5 of the circular No.2/2011 gives the scope for person deducting tax to claim refund. Paragraph 6 of the same circular has clarified provisions of section 200A of the Act prescribing processing of TDS return and issue of refund claim for the period up to 31-3- 2010 shall apply. Further, the CBDT has issued another circular No.6/2011 dated 24-8- 2011 wherein it was clarified that the refund claims pertaining to period up to March 31, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to be given to an assessee for the amounts deducted in the assessment made under the Act in the Assessment Year for which such income is assessable. The Tribunal laid down that the conditions for getting the benefit of TDS as per section 199 of the Act are (1) The assessee should produce the certificate for the amounts of tax deducted at source and (2) Show that income subjected to TDS is disclosed in the return of the Assessment Year as assessable . Similar proposition has been laid down in the decision cited by the learned DR before us. 15. Section 199 of the Act was however substituted by the Finance Act, 2008 w.e.f. 01.04.2008 and as per the substituted provisions, credit is to be given as per the provisions made in the Rules. In terms of section 199, Rule 37BA provides that credit for tax deducted at source and paid to the Central Government shall be given for the Assessment Year for which such income is assessable. In case the income is assessable over a number of years, credit for tax deducted at source shall be allowed across those years in the same proportionate in which the income is assessable to tax. 16. In the present case, the CIT(A) has allowed relief t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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