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2019 (5) TMI 1999 - AT - Income TaxNon grant of TDS credit on mobilization advance - It is the case of authorities below that assessee has not billed any revenue, so assessee credit in P & L account of income has been rejected - HELD THAT:- Once it is the case of the Revenue that assessee has not commenced any business during the assessment year, it has not made any bill for the work done and revenue recognition is rejected and authorities below emphasized that only a sum being the mobilization advance reflected in the balance sheet in liability is an acceptable figure, then how can it be said that the TDS deducted by the payer i.e. is correct is beyond comprehension. These facts clearly indicate that on the facts and circumstances of the case, the payer had wrongly deducted TDS on this sum paid as mobilization advance. As held by the ITAT in M/s. Patel Engineering [2015 (11) TMI 1665 - ITAT MUMBAI] wherein it was expounded that the mobilization advance was not an income and that credit for any TDS on the same should be given in the year of TDS itself. We note that the authorities below have denied the assessee's request on various technicalities that the assessee should have made an application etc. for wrong deduction of TDS in this regard. In our considered opinion such mechanical approach of the Revenue is not justified. We draw support from case of CIT Vs. Shelly products and others [2003 (5) TMI 4 - SUPREME COURT] wherein it was held that assessee was entitled to refund excess tax paid out of abundant caution or owing to error or non-taxability. The common law maxim of aprobate and reprobate mandates that such a contradictory approach and shifting stands are not permissible. This view was reiterated by SUZUKI PARASRAMPURIA SUITINGS PVT. LTD. [2018 (10) TMI 484 - SUPREME COURT] Assessee deserves to succeed on this issue and accordingly we direct the Assessing Officer to give the credit for the TDS.
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