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Chandmal Sancheti Versus Income Tax Officer, TDS-2, Jaipur

2016 (8) TMI 952 - ITAT JAIPUR

Application of section 206C applicable on traders of scrap - scrap generated from the mechanical working of the material (breaking of the ship) - Held that:- The only condition of the scrap is that the scrap should be waste and scrap from the manufacturing or mechanical working of material, which is definitely not usable as such on account of breakage, cutting up, wear and other reasons. In our opinion, the provisions of Section 206C of the Act are applicable to the present case as the assessee .....

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ap generated from the breaking of the ship and had purchased the scarp. The contention of the ld AR that since the iron scrap like steel, ingots, iron etc. is being used by the industries without any change, is not correct as the nature of goods shall remain same, therefore, it comes under the definition of the scrap. In our view, the material sold by the assessee cannot be used as such without any modification by the buyer of the said scrap. As the said material/goods come from the breaking of .....

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and not by the Rules. The Rules, in our opinion, cannot extend or restrict the provisions of the Parent Act. The Rules are framed by the Legislature by exercising its power under the Act and therefore, if any penalty provision by way of the exclusion of declaration benefit and submission of the declaration belatedly should be provided by the Act and the rules. The provision of sub-Section (1A) of section 206C, in our view, do not provide the consequences of the delayed filing of the declaration .....

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the declaration in Form 27. In view thereof, the ground is required to be allowed. In the light of above, we deem it appropriate to remand the matter back to the file of the Assessing Officer with direction to verify whether the declaration has been filed by the assessee in the requisite form and what will the effect of filing of this declaration on the calculation of the TCS U/s 206 of the Act. It is, however, again clarified that the delay in filing the declaration shall not be a ground to the .....

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tion 206C of the Act. In view thereof, the revenue is only entitled to the recovery of the interest on the unpaid tax amount/deposit/short tax deposited by the buyer. If the taxes deposited by the buyer is fair and more than the tax required to be deducted by the assessee then in that eventuality, no interest is payable. However, if the tax deposited by the buyer was found to be less than the amount to be deposited by the assessee then the assessee is liable to pay the interest up to the month i .....

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or the period 01/8/2008 up to the date of deposit of the advance tax. In the light of the above observation, this issue is also remanded back to the file of the Assessing Officer with direction to (i) to verify as to the date when the TCS was due by the seller/assessee, (ii) the date on which the advance tax was paid/deposited by the buyer, (iii) in case the advance tax is deposited prior to the due date of TCS, then no interest shall be charged. However, if the advance paid after the due date t .....

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assessee arose against the order dated 11/03/2015 passed by the ld CIT(A)-III, Jaipur for the A.Y. 2008- 09 & 2009-10. The common effective grounds of both the appeals are as under:- 1 The Ld. Commissioner of Income Tax (Appeals) has erred on facts and in law in confirming the findings of the AO that provisions of section 206C is applicable on traders of scrap. 2. The Ld. Commissioner of Income Tax (Appeals) has erred on facts and in law in holding that as the declaration in Form No. 27C is .....

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ss of interest to revenue and therefore no demand u/s 206C(7) should be raised on assessee. He has further erred in ignoring the various case laws relied upon by the assessee. 4. The Ld. Commissioner of Income Tax (Appeals) has erred on facts and in law in giving the directions to the AO to give credit to the assessee in respect of those items of scraps which are of useable nature and for which Form No. 27C were also filed in time ignoring the fact that provisions of section 206C is applicable o .....

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ee has sold these scrap items to other parties in Rajasthan. However, it was noticed that the assessee has not collected TCS on such sale of scraps from the buyers. The assessee was called upon vide letter dated 22/08/2013 to submit the details of purchase and sale of scrap along with stock register for financial year 2007-08 and 2008-09. The ld Assessee was called upon by the above said notice to reply to the following queries: Against the above sale, you have claimed that some items were non-s .....

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he office of the undersigned on 23-12-2013 at 11.30AM. Please note that in case of failure to reply to' this show cause notice, it shall be presumed that you have no objection in treating above mentioned sale as being without collection of tax and order treating you as assessee in default in respect of the above amount shall be passed on the basis of available facts on the record. The assessee has filed the reply and the ld Assessing Officer has summarized the arguments advanced by the asses .....

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provision is applicable only when the scrap is generated by the manufacturer i.e. at the first point of sale only and not to second or subsequent sale. Therefore, since assessee is a trader and neither engaged in manufacture nor in mechanical working, the provisions of section 206C are not applicable in its case. (c) He has further contended on the basis of the above that he does not fall within the definition of seller and buyer for the purchase/sale of scrap. (d) He has also argued that the s .....

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hould be some raw material for manufacturing) & the final product is only scrap, which may be cast iron scrap, non ferrous metal scrap, wooden scrap, melting scrap, machinery scrap, rerolling scrap etc. All these items are known as scrap in the commercial market. Disposal of these scrap item can be made only in scrap market. (e) He has placed reliance on decision of the Hon ble ITAT Ahmadabad Bench in case of Navine Fluorine International Vs. ACIT, TDS, Circle Surat ITA No.1213, 1214/Ahd/201 .....

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ch non-scrap items but he had not collected TCS himself on sale of the same. For this, his clarification was that such materials were old & used plates which are fit for re-rolling and could be used as such . He has also enclosed a copy of Tariff of Central Excise & Customs, which also considers this to be separate from scrap. However, his contention in this regard is not acceptable as the words as such in the context means that the material which is sold should have been in a condition .....

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. An Inspector was sent to study the process of rerolling mills. His report states that the rerolling mills use the material purchased and heat these materials to produce sariya, angle, patti etc. The process as stated in the Inspectors report is reproduced below: "The mills are using raw material such as old and used metal plates in big sizes from ship breaking. These metal plates are cut in different sizes/ shapes as required through cutting machines. These bars are then put on a stand a .....

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d to produce other materials and the material sold by the assessee is not used as such by the purchaser. The sale of such material is therefore considered as scrap since it cannot be said that it has been used as such by the rerolling mills. Similarly, the ld Assessing Officer has held that in cases where the declaration was submitted by the assessee, the benefit of proviso to sub-Section (6A) of Section 206C of the Act was extended, however, in respect of buyers, whose declaration has not been .....

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deration to be adjudicated is that whether the assessee who is trading in sale in purchase of scrap was liable to collect TCS on sale of scrap. The AO s case is that even if the assessee is a trader he was required to collect the TCS on sale of scrap subject to the condition that it was not usable. The AO has also mentioned that when the assessee has purchased such scrap, TCS was collected on such purchases by the seller party. Alternatively the appellant has also contended that part of scrap wa .....

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the AG has accepted these facts and in AY 2009-10 excluded the sale of MS ingots and Pig Iron for working out the liability of collection of tax but in AY 2008-09 sale of such items were not excluded. Similarly in AY 2008-09 the AO excluded the sale of Sillico Manganese for determining the liability determined the liability u/s 206C but the sale of such items was not excluded in AY 2009-10 . The another contention of the appellant was that all such purchasers have shown such purchase in their bo .....

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nical working of material which is definitely not useable as such because of breakage and cutting up and scrap does not mean that it should come out from manufacturing process which needs any raw material or finished goods. It may further be mentioned that the issue as to whether the traders dealing in scrap are required to collect TCS on the sales has further been clarified by the CBDT vide clarification dated 18.05.2012 mentioning that the scrap generated with the traders was also subject to T .....

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ec. 206C(1A) but such credit can only be given when the Form No. 27C are furnished within the prescribed time and before a prescribed authority. In the Rule 37 it is clearly provided that such declarations shall be furnished on or before 1.1th day of the month next following to die month in which the declaration is furnished. The World Shall indicate that furnishing of such declaration in the prescribed time is mandatory and the AO may not have any discretion on the same. As regards, the content .....

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27C were also filed in time. Similarly in respect of alternative contention of the appellant that when the purchasing parties have shown such purchase in their books of accounts and also paid due taxes by way of filing of income tax return and all such evidences are already filed before the AO, keeping in view the decision of Hon ble Supreme Court in the case of Hindustan Coca Cola Beverage Pvt. Ltd. Vs. CIT 293 ITR 163, the assessee is not to be treated to be in TCS default, the AO is directed .....

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assessee preferred appeal before us. The ld AR of the assessee has submitted that the assessee is not pressing ground No. 4 of the appeal, therefore, the Bench is required to decide grounds No. 1 to 3 of the appeal. For the purposes of ground No. 1, the ld AR of the assessee has submitted that the term scrap used in Section 206C of the Act is explained in Explanation (b) to Section 206C in the following manner:- b) scrap means waste and scrap from the manufacture or mechanical working of materia .....

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nor mechanical working of the material is carried out by the assessee, therefore, the assessee cannot be considered a person dealing in the scrap. It was held that the definition of scrap itself facilitates the first sale and not the subsequent sale. It was submitted that since the assessee is intermediary and waste/scrap sold to the third party, therefore, provisions of Section 206C of the Act are not attracted. It was submitted that the sale made by the assessee do not attract the provision of .....

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ontended that the provisions of Section 206C of the Act should not apply. It was further submitted that the executive instruction issued by the CBDT bearing No. F. No. 275/86/2011-IT(B) dated 18/05/2012 is not binding and cannot override the stated provision of the Act and therefore, the lower authorities were wrong in applying the provisions of Section 206C of the Act on the assessee. It was further submitted that the appeal of the assessee is required to be allowed on this ground. 6. On the ot .....

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on of Section 206C of the Act, which provides as under: 206C. PROFITS AND GAINS FROM THE BUSINESS OF TRADING IN ALCOHOLIC LIQUOR, FOREST PRODUCE, SCRAP, ETC. (1) Every person, being a seller shall, at the time of debiting of the amount payable by the buyer to the account of the buyer or at the time of receipt of such amount from the said buyer in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, collect from the buyer of any goods of the nature specified in co .....

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endu leaves Two and one-help per cent (vi) Scrap One per cent] (vii) Minerals, being coal or lignite or iron ore One per cent] Provided that every person, being a seller shall at the time, during the period beginning on the 1st day of June, 2003, and ending on the day immediately preceding the date on which the Taxation Laws (Amendment) Act, 2003, comes into force, of debiting of the amount payable by the buyer to the account of the buyer or of receipt of such amount from the said buyer in cash .....

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ained in sub-section (1), no collection of tax shall be made in the case of a buyer, who is resident in India, if such buyer furnishes to the person responsible for collecting tax, a declaration in writing in duplicate in the prescribed form and verified in the prescribed manner to the effect that the goods referred to in column (2) of the aforesaid Table are to be utilised for the purposes of manufacturing, processing or producing articles or things or for the purposes of generation power and n .....

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untant shall have the meaning assigned to it in the explanation to sub-section (2) of section 288; (aa) buyer with respect to- (i) sub-section (1) means a person who obtains in any sale, by way of auction, tender or any other mode, goods of the nature specified in the Table in subsection (1) or the right to receive any such goods but does not include,- (A) a public sector company, the Central Government, a State Government, and an embassy, a High Commission, legation, commission, consulate and t .....

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le as such because of breakage, cutting up, wear and other reasons; (c) seller means the Central Government, a State Government or any local authority or corporation or authority established by or under a Central, State or Provincial Act, or any company or firm or co-operative society and also includes an individual or a Hindu undivided family whose total sales, gross receipts or turnover from the business or profession carried on by him exceed the monetary limits specified under clause (a) or c .....

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on of the ld AR for the assessee that the provisions of Section 206C are not applicable to the assessee, as he is merely a subsequent trader, in our view, is not correct, as the heading of section uses the word trading . Moreover, the definition of seller reproduced hereinabove clearly shows that the seller includes a reseller also, who is into trading of scrap. Sub-section (1A) of Section 206C of the Act clearly defines the exceptions for not collecting the TCS , only in such cases when the scr .....

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206C of the Act are attracted and the assessee was duty bound to collect the TCS on the sale on the nature of goods (scrap) at the rate specified in the table. Further , the contention of the assessee that as per the definition of scrap reproduced hereinabove only the person dealing in manufacturing or mechanical working of material shall be liable to be recovered under this provision, in our view, is not correct interpretation. It is a matter of fact that Section 206C provides the category of p .....

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manufacturer or dealer. Scrap, as defined in the explanation to the Section only talks about the waste and scrap from the manufacturing or mechanical working. This definition of scrap provides waste and scrap from the manufacture or mechanical working of materials which is definitely not usable shall be treated as scrap. Even the assessee himself had paid TCS in terms of section 206C for the purchase of goods under consideration, in our view the nature of goods shall remain the same i.e scrape .....

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d be waste and scrap from the manufacturing or mechanical working of material, which is definitely not usable as such on account of breakage, cutting up, wear and other reasons. In our opinion, the provisions of Section 206C of the Act are applicable to the present case as the assessee is a trader and dealing in the scrap generated from the mechanical working of the material (breaking of the ship). Further it is not necessary that such mechanical working (breaking of the ship) should be carried .....

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t correct as the nature of goods shall remain same , therefore, it comes under the definition of the scrap. In our view, the material sold by the assessee cannot be used as such without any modification by the buyer of the said scrap. As the said material/goods come from the breaking of the ship, these goods were sold to the manufacturer/rerolling mills, as scrap therefore, the goods (scrap) sold by the assessee were not usable as such and therefore, the assessee was required to deduct TCS from .....

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day of assessment from the manufacturer. However, the ld Assessing Officer has not granted the relief in respect of the buyers, whose declaration were not provided up to day of the finalization of the assessment by the assessee. The ld CIT(A) in the appeal has directed the ld Assessing Officer to verify such claims and if it is found that the purchasing parties have shown such purchases in the books of account and has also issued declaration as required in law, then in that eventuality, the addi .....

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ed by the collection shall be in Form 27D. 2. The certificate shall specify:- (a) valid permanent account number (PAN) of the collectee; (b) valid tax deduction and collection account number (TAN) of the collector; (c) (i) book identification number or numbers where deposit of tax collected is without production of challan in case of an office of the Government; (ii) challan identification number or numbers in case of payment through bank; (d) receipt number of the relevant quarterly statement o .....

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n Form NO. 27D if the collectee has lost the original certificate so issued and makes a request for issuance of a duplicate certificate and such duplicate certificate is certified as duplicate by the collector. Further Rule 37 of the Rules, requires that every person meaning the person responsible for deducting tax under Chapter XVII-B shall, in respect of previous year, deliver or cause to be delivered to the Director General of Income Tax (Systems), the returns mentioned in column (1) of the T .....

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assessee has collected declaration form and submitted on 23/12/2013 and 25/2/2014, therefore, though, the assessee has submitted declaration at the appellate stage but in view of the judgments passed by the various Tribunals and Courts, the benefit of the declaration should be given to the assessee. The ld AR has further relied on the following case laws: 1. CIT Vs. Adisankara Spinning Mills (P.) Ltd. 226 Taxman 44 (Mad.) (HC) (Magz.) In this case, the High Court in Para 2 of the order held as u .....

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se of CIT v. A.N. Arunachalam [1994] 208 ITR 481/75 Taxman 529 (Mad.). Therefore, we do not find any scope to entertain the said question. 2. CIT (TDS) Vs. Siyaram Metal Udyog (P.) Ltd. 2016 ITL 4028 (Guj.) (HC) In this case, the AO made addition on the ground that the assessee had breached section 206C of the Income Tax Act, 1961 in case of sale of scrap and that the assessee had not submitted Form-27C comprising of the buyer's declaration to the Commissioner of Income-tax in time. The Trib .....

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is unable to point any distinction on facts or law therein. Thus, addition with the aid of section 206C could not be made. The High Court held as under:- In terms of the explanation clause (aa) any person who purchases the goods in retail sale for personal consumption would not be included within the definition of term 'buyer'. It is therefore, that under sub section (1A) of section 206C, calculation of tax under sub-section 1 would not be made, if the buyer furnishes to the person respo .....

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hich, such declaration is to be made. The time limit, of course, would be found in Rule 37C of Income Tax Rules, 1962. The main thrust of sub-section 1A of section 206C thus is to make a declaration as prescribed, upon which, the liability to collect tax at source under sub-section (1) would not apply. When there was no dispute about such a declaration being filed in a prescribed format and there was no dispute about the genuineness of such declaration, mere minor delay in filing the said declar .....

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processing or producing articles or things. It does not say that such declaration has to be obtained at the very same moment when a sale is affected. A reading of sub section (1B) clearly brings out this since obligation of the assessee to file a copy of the declaration arises only when the declaration is furnished to him by the buyer. The point of reference is furnishing of declaration by the buyer and not the month or date on which sale is affected by the assessee. Even if it is considered tha .....

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nterprise Vs. Income Tax Officer in appeal No. ITA no. 2384/Ahd/2012 order dated 14.08.2014. (Ahd.): The relevant para of the judgment are reproduced as under: 15. We find that section 206C (1A) reads as under: "Notwithstanding anything contained in sub-section (1), no collection of tax shall be made in the case of a buyer, who is ITA No. 2384/A/2012 K.P.G. Enterprise, Bhavnagar AY 2010-11 resident in India, if such buyer furnishes to the person responsible for collecting tax, a declaration .....

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e to the effect that the purchases made by such buyer are to be utilized for the purposes of manufacturing, processing or producing articles or things or for purposes or generation of power and not for trading purposes. Thus, in a case where such a declaration is furnished by the buyer to the seller, the seller is not obliged to collect TCS from such buyer and consequently the seller assessee cannot be treated as an assessee in default in respect of not collecting TCS from such buyer. We find th .....

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ssee, then thereafter the assessee could not legally collect the TCS from such buyers and consequently the assessee cannot be treated as an assessee in default for not collecting TCS from such buyers. The above view finds support from the decision of the Hon'ble Gujarat High Court in the case of CIT Vs. Valibhai Khanbhai Mankad (2013) 261 CTR 538 (Guj.) wherein it has been held that, ITA No. 2384/A/2012 K.P.G. Enterprise, Bhavnagar AY 2010-11 "Once the conditions of section 194C(3) were .....

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eld that, "Where declaration in Form 15G/15H were received by the person responsible to deduct tax, there was no liability on him to deduct TDS. Since separate provisions were prescribed on default for non-filing or delayed filing of Form 15G/15H to Commissioner, non-filing of such form would not invoke disallowance u/s. 40(a)(ia) of the Act." We also find support from the decision of the Mumbai Bench of the Tribunal in the case of Vipin P. Mehta Vs. ITO (2011) 46 SOT 71 (Mum.) wherein .....

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the assessee has not filed copy of declaration received by it u/s. 206C (1A) of the Act before the Assessing Officer for his verification. Therefore, in our considered view, it shall be just and fair to restore this part of the ground of appeal back to the file of Assessing Officer for proper verification and thereafter readjudication of the issue as per law in the light of the discussion made hereinabove after allowing the assessee a reasonable opportunity of hearing. 9. On the other hand, the .....

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format by disclosing all information as contemplated under Form 27 read with Rule 37 of the Rules, the benefit of declaration should be given to the assessee. The ld Assessing Officer/CIT(A) should extend the benefit of declaration to the assessee. Rule 27 though is couched in the mandatory language by using the word Shall but the Rule 37 has not given the consequences of not filing the declaration within time. In our view, the consequences of failure to file the declaration in the requisite fo .....

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rovide the consequences of the delayed filing of the declaration. Though, it provides that it is to be filed on or before the 7th day of the next following month in which declaration is furnished to him. Therefore, though there is delay in issuing the declaration by the buyer, the assessee cannot be penalized or deprived from the benefit of the declaration given by the buyer. The only duty cast upon the seller to submit declaration in the following month in which the declaration received. No tim .....

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the delay in filing the declaration shall not be a ground to the Assessing Officer to deny the benefit of the declaration to the assessee. In view thereof, the ground No. 2 of the appeal is allowed for the statistical purposes only. 11. The 3rd ground of the assessee s appeal is with respect to upholding the order of the AO in charging interest u/s 206C(7) by not accepting the contention of the assessee that since all the persons to whom scrap is sold have paid the tax with interest or claimed r .....

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the charging of interest. It is the contention of the ld AR of the assessee that the assessee obtained the copy of the return and declaration of buyers in respect of the fact that they have recorded the purchases made from the assessee and have shown in the books of account and filed the return of income. It is the contention of the ld AR that since the returns have been filed by the buyer of the scrap and said buyers have already paid the advance tax /TDS, which was more than the tax due, ther .....

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in terms of Section 206C of the Act. However, the collection of TCS and deposit of the TCS is only exempted in respect of the cases where the declaration is being filed by the assessee in view of sub-section (1A) of Section 206C of the Act. In view thereof, the revenue is only entitled to the recovery of the interest on the unpaid tax amount/deposit/short tax deposited by the buyer. If the taxes deposited by the buyer is fair and more than the tax required to be deducted by the assessee then in .....

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