TMI Blog2013 (1) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... ficates has either to be taxed in the hands of the joint venture or in the hands of the individual co-joint venturer. As the joint venture has not filed return of income and claimed credit for TDS certificates and the TDS certificates have not been doubted, credit has to be granted to the TDS mentioned therein for the assessee. Rule 37BA is a procedural provision dealing with the manner of giving credit for tax deducted at source for the purposes of section 199. It therefore applies to pending proceedings. As observed in State of Madras v. Lateef Hamid & Co. AIR [1971 (9) TMI 155 - SUPREME COURT OF INDIA], where a new procedure is prescribed by law, it governs all pending cases. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be. The amendment to Rule 37 BA mentioned above which has been introduced by the Income Tax (8th amendment) Rules, 2011 notified vide Notification No. 57/2011 dated 24-10-2011, being procedural in nature, would have retrospective effect and has to be given effect to as decided in Tikaram & Sons v. Commissioner of Sales Tax AIR [1968 (3) TMI 92 - SUPREME COURT OF INDIA] The Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 2004-05, for the period up to 15-07-2003, the firm filed its return of income declaring an income of Rs. 1,23,47,000/-. 5. On 29-11-2004, for the assessment year 2004-05, for the period after 15-07-2003 up to 31-03-2004, the company filed a return admitting a taxable income of Rs. 4,32,08,820. 6. With respect to the contract work receipts, TDS was done but the assessee claimed credit of the tax mentioned in the said TDS certificates, the assessing officer, in the assessment orders of both the firm and the company, refused to give credit on the ground that some of the TDS certificates belong to the joint venture and some other TDS certificates are in the name of Directors and do not relate to the assessee firm/company. 7. Appeals were filed to the CIT (Appeals) by the firm and the company and by orders dated 04-12-2007 and 25-01-2007, the said appeals were allowed on the ground that as per the agreement dated 12-03-2003 mentioned above, each co-venturer has got its own share of work; that each co-venturer has to execute the work and get TDS certificate for having done work for its share of work; that even though the TDS certificate are in the name of the joint venture, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending: (a) that the credit for TDS given on the TDS certificates produced in the names of the Joint Venture is not in accordance with Rule 37-B A of the Rules framed under the I.T. Act. (b) The assessee is not eligible for TDS credit on the certificates produced in the names of the Directors when the same is not in accordance with Rule 37-B A of the above Rules. 12. Heard Sri J.V.Prasad, learned Senior Standing Counsel for the Income Tax Department and Sri C.P. Ramaswamy, learned counsel for the assessees. 13. S.199 (1) of the Act provides that any deduction of tax made in accordance with the provisions of Chapter XVII of the Act and paid to the Central Government shall be treated as a payment of tax on behalf of the person from whose income the deduction was made. Under sub section (3) of Section 199, the CBDT may, for the purpose of giving credit in respect of tax deducted at source or paid in terms of the provisions of Chapter XVII of the Act, make such rules as may be necessary, including the rules for the purpose of giving credit to a person other than those referred to in sub section (1) and sub section (2) and also the assessment year for which such credit may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n sub-rule (1) and shall keep the declaration in his safe custody. (3) (i) 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. (ii) Where tax has been deducted at source and paid to the Central Government and the income is assessable over a number of years, credit for tax deducted at source shall be allowed across those years in the same proportion in which the income is assessable to tax. (4) Credit for tax deducted at source and paid to the account of the Central Government shall be granted on the basis of - (i) the information relating to deduction of tax furnished by the deductor to the income-tax authority or the person authorized by such authority: and (ii) the information in the return of income in respect of the claim for the credit, subject to verification in accordance with the risk management strategy formulated by the Board from time to time." 15. By the Income Tax (8th amendment) Rules, 2011, the CBDT amended Rule 37 BA and in sub rule (2), for clause (i), the following clause was substituted: "(i) Where under any provisions of the Act, the whole or any pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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