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2019 (10) TMI 978 - AT - Income TaxRevision u/s 263 - credit of TDS reflected in form No. 26AS - AO has allowed the credit of TDS reflected in Form 26AS in the account of Madhukar Kapur [director of assessee company] subject to verification, the credit of TDS has not been claimed by Madhukar Kapur - PCIT was of the opinion that the assessee does not fall within an of the four categories mentioned in clause (i) of Rule 37BA(2) red with section 199(3) of the Act - HELD THAT:- From the bare reading of the above finding and the question of law and the ground urged before the ld. CIT(A), it is abundantly clear that the issue “whether TDS credit in the account of Madhukar Kapur, as mentioned in Form 26AS , can be credit to the account of the assessee” was not a subject matter of appeal before the ld. CIT(A). It is settled proposition of law that the finding recorded by the judicial and quasi judicial authorities are required to be read in the context of grounds urged before them and should not be read in isolation and out of the context. Thus, it is crystal clear that the subject matter of the proceedings u/s. 263 was not the subject matter of the proceedings before the ld.CIT(A) and in view thereof, the primary ground raised by the assessee is without merit and accordingly, the same is dismissed. Admittedly, there is no denial in the written submissions filed by the assessee before PCIT and before us that at the relevant time, the order was passed by the Assessing Officer, Rule 37BA was applicable. Furth3r, the assessee has failed to mention that the case of the assessee would fall in any of the ingredients mentioned in Rule 37BA, as reproduced by the ld. PCIT in para 2 of the impugned order. In view of the legal position, the opinion formed by the PCIT that the order passed by the Assessing Officer was erroneous and prejudicial to the interest of revenue cannot be faulted. As is clear from the assessment order, the assessee was doing job works in the name of the company and there was separate job work done by the director Shri Madhukar Kapur. Therefore, the obligation to deduct TDS of the deductor was in respect of the payment made to the assessee and also to Madhukar Kapur separately. Similarly, the other decisions are also not applicable. As mentioned herein above, recently by the decision dated 20.08.2019, Hon’ble Jurisdictional High Court had held that the order of the PCIT is required to be tested based on the material and the record available at the time of examining the assessment proceedings. Once the material now cited before us was not available with the Pr. CIT, therefore, we do not find any mistake in the order passed by the PCIT. Lastly, before the PCIT, it was contended by the assessee that the matter is sub-judice before the jurisdictional High Court by way of writ petition. As during the course of arguments, the assessee had not informed about the outcome of the proceedings initiated by the assessee before the Hon’ble High Court. In our view, the adverse inference is required to be drawn as nothing has been brought on record de hors the pendency of writ petition before the High Court. We do not find any merit in the submissions of the assessee. Accordingly, both the appeals of the assessee are dismissed.
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