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2015 (9) TMI 1421 - AT - Income TaxReopening of assessment - entitlement for credit of TCS/TDS in respect of income earned by the AOP - Held that:- In so far as the merits of case is concerned, the issue is squarely covered by the decision of CIT Vs. Bhooratnam & Company reported at [2013 (1) TMI 478 - ANDHRA PRADESH HIGH COURT ] wherein held as under: “Where income shown in the TDS certificate was offered to tax by the assessee then TDS credit is allowable on the basis of TDS mentioned in the TDS certificates irrespective of the fact that TDS certificate was not in assessee’s name.” The facts and circumstances in the instant cases are exactly identical. Furthermore, the findings recorded by the ld. CIT(A) to the effect that the members of AOP has not claimed any TDS/TCS in their individual returns, therefore, the assessee-AOP is entitled for credit of TCS/TDS in respect of income earned by the AOP. The findings recorded by the ld. CIT(A) has not been controverted by the ld. D.R. by bringing any cogent material on record. Accordingly, we do not find any reason to interfere with the conclusion arrived at by the ld. CIT(A) in directing the AO to allow credit of TCS/TDS issued in the name of individual members in the hands of the assessee-AOP after due verification and satisfaction. Facts and circumstances being pari materia similar in all the cases of all the assessees, following the reasons given hereinabove, we dismiss all the appeals of the Revenue. Coming to reopening issue from the plain reading of the section 147 of the IT Act, 1961, it is clear that provisions of section 147 applicable wherein any income chargeable to tax has escaped assessment not the excess credit of tax or TCS/TDS. The assessee’ case was reopened for the reason that the income of the appellant to the extent of ₹ 2668331.00 on account of excess credit of TCS/TDS allowed to the assessee AOP has escaped the assessment in terms of section 147 of the IT Act, 1961, which was not come within the purview of section 147 of the IT Act, 1961, as the excess credit of TCS/TDS is not the part of income of the assessee. Hence, the essential precondition of section 147 of the IT Act, 1961 has not been fulfilled in the assessee’s case. There is no variation in the income even after passing of order u/s 143/147 of the Act. Since there is no escapement of income which has been brought within the tax net after reopening, there is no justification for reopening of assessment. - Decided in favour of assessee.
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