TMI Blog2012 (12) TMI 1065X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. 3. Brief facts of the case are that in this case, assessment order u/s. 143(3) of the Act was passed on 26.12.2008, determining the total income at ₹ 14,80,75,403. Later, an order u/s. 154 was passed on 24.2.2009 for giving credit of TDS of ₹ 1,86,35,980. As per the rectification order, on verification of the assessment records, the Assessing Officer observed that while passing the said rectification order u/s. 154, credit for one TDS certificate amounting to ₹ 35,87,265 was wrongly given, as the said certificate was in the name of 'CEC-MAYTAS-RITHWIK Joint Venture (JV). He, therefore, proposed to rectify the said mistake by issuing a notice u/s. 154 on 12.3.2010. In reply to the show cause issued by the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Further, he observed that the assessee has not demonstrated that such TDS was credited to assessee s account to give credit to the same. Against this, the assessee is in appeal before us. 7. The assessee also raised a revised/additional ground stating that the order passed by the Assessing Officer u/s. 154 of the Act is debatable and it cannot be dealt with in the proceedings u/s. 154 of the IT Act, 1961. 8. The learned AR submitted that the assessing officer erred by rejecting the claim made by the assessee in respect of TDS for an amount of ₹ 35,87,265 without considering the explanation offered by the assessee which is not correct, not justified and bad in law. The assessing officer also erred by rejecting the claim made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that when the TDS certificate has been issued in the name of joint venture, credit for TDS has to be given to the person in whose case the receipts are subjected to tax. In this case the receipts covered by the TDS certificates of the JV company, they are offered to taxation in the hands of the constituents of the JV company and the proportionate credit of the TDS has to be allowed in the hands of the individual constituents as per their respective share provided in the JV agreement. 10. The learned DR submitted that the JV is an independent assessee from the assessee and he drew our attention to the provisions of section 199 of the Income-tax Act, 1961 as per which TDS should be treated as the tax paid on behalf of the person in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15.6.2011 held as follows: 9. We have also carefully gone through the decision of this Tribunal in Progressive Construction Ltd. This Tribunal after considering the language of section 199 found that nexus between TDS and the corresponding income element would remain notional. However, the amendment made by the Parliament by Finance Act, 1987 was not taken into consideration by the Bench while deciding the case in Progressive Construction Ltd. (supra). This Bench of the Tribunal in Progressive Construction Ltd. apparently followed the decision of the Mumbai Bench of this Tribunal in Toyo Engineering (I) Ltd.. However, the Chandigarh Bench of this Tribunal after considering the decision of the Mumbai Bench of this Tribunal in Toyo Engin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision, we are unable to uphold the order of the CIT(A) and the same is set aside and the order of the Assessing Officer is restored. 7. Respectfully following the above order of the Tribunal, we set aside the issue to the file of the Assessing Officer to examine whether the assessee offered the income for taxation, and if the assessee offered the income for taxation for the assessment year under consideration, credit to the TDS is to be given accordingly to the assessee. 12. As seen from the above orders of the Tribunal it is a debatable issue. An issue when it is debatable, it cannot be dealt with by the proceedings u/s. 154 of the Act. Being so, in our opinion, the Assessing Officer is precluded from taking the issue in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
