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2023 (3) TMI 1297 - AT - Income TaxNot giving credit of the TDS as available in the form 26 AS - appellant is governed by the system of community of property under the Portuguese Civil Code of 1867 which is in force in the State of Goa - whether the appellant apportioned half of the income earned by the appellant with his spouse as required from the assesses governed by u/s. 5A of Income Tax Act, 1961? - appellant's 26AS disclosed the TDS Credit but credit of less was given while processing the return thus reducing the refund received HELD THAT:- Section 5A is a special provision wherein the legislature has prescribed in the latter limb thereof that “and the remaining provisions of the Act shall apply accordingly.” Therefore, apply the age old principle generilia specialibus non derogant i.e., the other general provisions of the Act in other chapters’ must make way for the same for all intents and purposes. A perusal of section 198 of the Act that all TDS amounts deducted under Chapter XVII of the Act, are indeed deemed as income received of the concerned assessee - we wish to reiterate here that the legislative expression “assessee” herein must be read as “the spouses assessees” in light of section 5A of the Act and therefore, such TDS amount has to be consequentially apportioned going by scheme of the Act. The assessee’s instant arguments seeking entire TDS credit in his hands stand rejected therefore. As stated that Rule 37BA in Income Tax Rules does not provide for such an apportionment for the purpose of claiming TDS credit and, therefore, the assessee husband herein has rightly raised the claim of entire TDS credit. There is hardly any merit in the assessee’s contentions as Rule 37BA (2) read with “Proviso” thereunder casts a liability on the concerned deductee /assessee herein to file a declaration with the deductor that the whole or any part of the income on which the TDS has to be deducted, which is assessable in the hands of any other person i.e., the spouse herein by virtue of section 5A. The assessee could hardly be allowed to take advantage of his own failure in not furnishing the necessary declaration before his deductor therefore. His instant last argument also fails. Assessee’s appeal is dismissed.
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