TMI Blog2015 (11) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... ment year he has suffered loss, the question of paying any tax on the said amount also does not arise. A conjoint reading of Sections 194C, 199 & 237 of the Act makes it clear that if there was no liability to pay tax, the TDS paid is liable to be refunded and that is absolutely what the Tribunal has stared. - Decided in favour of assessee. - I.T.A. NO.819/2007 C/W ITA.NO.9/2009 - - - Dated:- 17-10-2014 - MR. N. KUMAR MR. B. MANOHAR, JJ. SRI.K.V.ARAVIND, ADV For The Appellant SRI.A.SHANKAR SRI.M.LAVA, ADVS For The Respondent JUDGEMENT Both these appeals are taken up for consideration together as a common question of law i s involved though the Tribunal has given divergent findings. 2. The assessee in ITA.No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred second appeal to the Tribunal. 3. The Tribunal held that the amount received by the assessee as advance could be said to be part of release of Bank guarantee, but for the provision contained under Section 194C of the Act, the contractee would not have deducted tax on the advance payment since there is clear understanding between the contractee and the contractor that the amount so paid is only an advance in regard to the services to be rendered by the assessee which would be shown in the shape of the bills raised on the ba sis of the works completed. Till such time the bills are actually raised after the work is carried out, the nature of the amount received in advance remains as advance only. This instance would be an exception to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mounts by the assessee from National Highways Authority of India (NHAI) could be treated as part of release of bank guarantee and the amount so received by the assessee should be treated as an advance and can it be an exception to the provisions of Section 199 of the Income Tax Act by availing all the benefits under Section 237 of the Act? 7. From the material on record, it is clear that the assessee is a contractor who has been paid a sum of ₹ 29,28,59,937/- as mobilization advance which is not an income. But by virtue of Section 194C, T DS of ₹ 59,12,958/- was deducted and credited to the account of the assessee in part. For the assessment year 2002-2003, the assessee has suffered loss. Consequently, there was no income. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely what the Tribunal has stated. Therefore, we do not see any justification to interfere with the orders passed. Hence, the appeal filed by the revenue is liable to be dismissed. 8. In ITA.No.9/09, strangely the Tribunal has declined to follow the judgment of the co-ordinate Bench though one of the member is common in both the judgments. Here, the Tribunal has declined to order for refund. Therefore, the said order, for the reasons assigned by us, as above, is unsustainable and the order passed by the Tribunal is set aside a nd the order passed by the First Appellate Authority is restored. Thus the substantial question of law is answered in favour of the assesse and against the revenue in both the appeals. Accordingly, we pass the foll ..... X X X X Extracts X X X X X X X X Extracts X X X X
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