TMI Blog2017 (11) TMI 1561X X X X Extracts X X X X X X X X Extracts X X X X ..... ng claimed only by the assessee i.e., Reliance Hyper Realty Limited and not being claimed by the Reliance Fresh Ltd.. See Commissioner of Income Tax-15 Versus M/s Relcom [2015 (11) TMI 284 - DELHI HIGH COURT ] In view of the above, direct the AO to allow the credit of the TDS so deducted in the hands of the assessee company. - Decided in favour of assessee. - ITA No.3765/Mum/2017 - - - Dated:- 5-10-2017 - SHRI R.C.SHARMA, AM For The Assessee : Shri Madhur Agarwal For The Revenue : Ms. N. Hemalatha ORDER PER R.C.SHARMA (A.M): This is an appeal filed by the assessee against the order of CIT(A)-14, Mumbai dated 22/03/2017 for A.Y.2011-12 in the matter of order passed u/s.154 of the IT Act, 1961 wherein follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /4/2010 has not been offered and therefore the refund of ₹ 44,82,512/- granted on the basis of TDS certificate is required to be withdrawn. Accordingly the A.O passed the order u/s 154 of the Act withdrawing the credit of TDS. 3. By the impugned order, CIT(A) confirmed the action of the AO by observing that the income is shown in the hands of different company, while the TDS claim is made in the hands of the assessee company 4. It was argued by learned AR that corresponding income with respect to which TDS has been deducted was earlier offered in the hands of the assessee company and thereafter due to the High Court order which is effective from 01/04/2010, the corresponding income as per TDS certificate was offered in the hands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the scheme was considered in the revised financial statement for the year ended 31st March, 2011 and accordingly revised Income Tax Return (ITR) was filed on 31/03/2012. 7. In order to give effect to the above scheme, a revised return of income was filed declaring a loss of ₹ 14,17,785/- and a refund of ₹ 45,03,858/- on account of TDS and TCS. The assessee company continues to operate its investment undertaking and makes investments in various companies like organized retail industry and creating and operating retail stores including construction of malls. The investment division of Reliance Hypermart was later merged with Reliance Commercial Land and Infrastructure Limited vide the Bombay High Court order dated 22nd March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed date being 1st April 2010) and all the TDS certificates were received in name of the Assessee all of them bears the PAN of the Assessee AADCR6588G, and it was appearing in Form 26AS of Reliance Hyper Realty Ltd. 9. I further found that since all the transactions relatable to trading undertaking were transferred to resulting company (Reliance Fresh Ltd). The Income on which TDS is claimed by the Assessee company has been booked in the books of Reliance Fresh Ltd. {the Resulting Company). However, the other divisions of the company continued and since Reliance Hyper Realty Ltd. was in existence, such TDS was claimed in the Return of Income of Reliance Hyper Realty Ltd. Confirmation was provided during the assessment proceedings th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) The Board may, for the purposes of giving credit in respect of tax deducted or tax paid in terms of the provisions of this Chapter, make such rules as may be necessary, including the rules for the purposes 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 given. 7. The revenue relies on the phrase shall be treated as a payment of tax on behalf of the person from whose income the deduction was made to contend that the assessee's TDS claim cannot be based on the receipts of M/s REPL. However, the assessee fairly admitted throughout the proceedings for its TDS claim of 1,20,73,097/- that the benefit of such claim has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have not been doubted, credit has to be granted to the TDS mentioned therein for the assessee.^ XXX XX XXX The Revenue cannot be allowed to retain tax deducted at source without credit being available to anybody. If credit of tax is not allowed to the assessee, and the joint venture has not filed a return of income, then credit of the TDS cannot be taken by anybody. This is not the spirit and intention of law. (emphasis supplied) 9. At this stage, it is also relevant to note the provisions of Rule 37BA of the Income Tax Rules, 1962, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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