TMI Blog2018 (7) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... be received from Elecon Engineering Co. P. Ltd. and Prayas Engineering Ltd. as to the credit of taxes to Central Government and also for verification of offering of the corresponding income by the assessee to taxation in the return of income filed u/s 139(1) on 20-09-2008, before allowing credit for said TDS - I.T.A. No. 1194/Mum /2017 - - - Dated:- 11-7-2018 - Shri Saktijit Dey, Judicial Member And Shri Ramit Kochar, Accountant Member Assessee by : Shri Tanmay Phadke Revenue by : Shri. Ram Tiwari ORDER Per Ramit Kochar, Accountant Member This appeal, filed by the assessee, being ITA No. 1194/Mum/2017, is directed against appellate order dated 11.11.2016 passed by learned Commissioner of Income Tax (Appeals)-3, Mumbai (hereinafter called the CIT(A) ), for assessment year(AY) 2008-09, the appellate proceedings had arisen before learned CIT(A) from the order dated 01-05-2015 passed by learned Assessing Officer (hereinafter called the AO ) u/s 154 of the Income-tax Act, 1961 (hereinafter called the Act ) for AY 2008-09. 2. The grounds of appeal raised by the assessee in the memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ₹ 9,93,555/- in the return of income filed with the Revenue but the income-tax deducted at source on the said income by the persons responsible for making payments deposited the said income-tax late to the credit of Central Government and consequentially the TDS certificates were also issued late by the said deductors to the assessee which is the main reason for the non claim of the credit of TDS earlier by the assessee in the return of income filed with Revenue and the assessee cannot be held responsible for such delay in filing of the claim as no fault lies with assessee and hence the assessee cannot be penalised for the same. It was also submitted that the assessee was not aware of the said deduction of income-tax at source(TDS) of ₹ 9,93,555/- by the deductors at the time of filing of return of income and it is only at a later stage , the assessee came to know of said deduction of income tax at source(TDS) by the deductors on behalf of the assessee. The said letter dated 02.07.2013 along with original TDS certificates and indemnity bond were filed by the assessee before the AO in the course of proceedings conducted by the AO u/s 154 , on 10.07.2013 which are all p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the Return as the details of the TDS was not made available nor was the tax deducted or paid on or before the filing of our Return of Income. We would also like to draw your Honors attention to the fact that these TDS Certificates were received by us very late, i.e after 31st March, 2010, thereby negating our chances of filing a Revised Return wherein we could have claimed the TDS credit. Further, we are unable to access the Form 26AS for A.Y 2008-2009 on the CPC-TRACES website in order to verify whether the credit for the above mentioned amounts have been granted. We hereby submit the ledger copies of the aforesaid parties for the A.Y 2008- 2009 for your ready reference. It can be observed that 1707 invoices amounting to ₹ 7,25,21,087/- had been raised on Elecon Engineering Co. Pvt Ltd and 38 Invoices amounting to ₹ 12,23,650/-had been raised on Prayas Engineering Ltd. We hereby further state that all the invoices have been considered in our books of accounts for the A.Y 2008-2009 and accordingly relevant income has been offered for tax. Therefore, in the said circumstances, wherein at one hand we could not take appropriate credit of the TD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x of the case as also the applicable legal position. 6. The only ground of appeal is disallowance of claim of TDS of ₹ 9,93,555/-. This appeal for AY 2008-09 is against the order u/s 154 of the AO dated 01.05.2015. The AO has granted TDS of ₹ 89,44,765/- and determined the refund of ₹ 51,72,150/-, while making the rectification u/s 154 of the IT Act. 6.1 On the other hand, the appellant submitted that the Appellant is a Private Limited Company engaged in the business of Clearing and Forwarding Agent. The Appellant has filed his return of income for the Assessment year 2008-2009 on 20th September, 2008 (As attached on page no. 01) disclosing the total income of ₹ 4,57,01,174/- and tax thereon of ₹ 1,55,37,327/- which was paid as Advance Tax of ₹ 71,00,000/-, TDS of ₹ 89,44,765/- and had thereby claimed refund of ₹ 5,07,438/-. The copies of the TDS certificates were submitted to the AO vide letter dated 17th September, 2009 (As attached on page no. 02) .The Original TDS certificates amounting to ₹ 89,44,765/- were submitted to the AO vide letter dated 27th June,2013 (As attached on Page No. 03). 6.2 In the Intimatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total 9,93,555 A. The Appellant had offered the income from the above mentioned clients for tax in the AY 2008-09 while computing his Net Total Income. It shall be noted that the TDS has not been claimed in the return as the certificate were not provided by the clients nor the Appellant was aware of such deduction as TDS was deducted and paid by the client to the Government very late i.e. 31st March, 2010. Thus it was obvious that Appellant was not able to claim the TDS at the time of filing his return of income which was filed much earlier on 20th September, 2008. B. Order u/s 154 was received dated 01st May,2O15 were in the TDS of ₹ 89,44,765/-, Advance Tax of Rs-71,00,000/- and the Short Term Capital gain was correctly taxed and the refund of ₹ 51,72,150/- was received on 07th May,2015. However, the AO did not gave the credit of TDS of ₹ 9,93,555/- which was not claimed while filing the return but was submitted before Him. C. The Appellant relying on the Principle of Natural Justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. ITO vs. Anupallavi Finance Investments [2011] 131 ITD 205 (Chennai Trib.) 5. Pardeep Kumar Dhir v. ACIT[2007] 109 TTJ 445 (Chandigarh Trib.) 6. Smt. Varsha G. Salunke v. DCIT[2006] 98 ITD 147 (Mumbai Trib,) 7. Yashpal Sawhney v. ACIT[2007]293ITR 539 (Bom) 6.5 Section 155 (14) reads as under:- Where in the assessment for any previous year or in any intimation or deemed intimation under sub-section (1) of section 143 for any previous year, [credit for tax deducted or collected in accordance with the provisions of section 199 or as the case may be, section 206C] has not been given on the ground that the certificate furnished under section 203 [or section 206C] was not filed with the return and subsequently such certificate is produced before the Assessing Officer within two years from the end of the assessment year in which such income is assessable, the Assessing Officer shall amend the order of assessment or any intimation or deemed intimation under subsection (1) of section 143 as the case may be, and the provisions of section 154 shall, so far as may be, apply thereto: Provided that nothing contained in this sub-section shall apply unless th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed with the revenue. It was submitted that consequently TDS certificate were issued by deductors late in March 2010 and October 2010 respectively and hence received late by the assessee. It was submitted that the assessee is not at fault. He drew our attention to the paper book page no. 16-23 and submitted that income-tax deducted at source was deposited to Credit of Central Government by Elecon Engineering Co. P. Ltd. on 31.03.2010 and TDS certificate was issued on 31.03.2010 . Similarly with respect to Prayas Engineering Ltd. it was submitted that the said concern deposited income-tax deducted at source on behalf of the assessee on 11.10.2010 and TDS certificate was issued in favour of the assessee only on 14.10.2010. The aforesaid TDS certificates are placed in paper book filed with tribunal. Thus it was contended by learned counsel for the assessee that the assessment year under consideration is assessment year 2008-09 wherein the due date of filing of return of income u/s 139(1) was 30-09-2008 and the assessee filed its return of income on 20-09-2008 , while the TDS certificate were received as late as in assessment year 2011-12 and the assessee is not at fault for not clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f TDS of ₹ 79,05,771/- as against TDS claim of ₹ 89,44,765/- filed by the assessee. The assessee on 24-05-2013 filed petition u/s. 154 of the Act seeking rectification of the intimation u/s 143(1) wherein it claimed credit of TDS to the tune of ₹ 89,44,765/- as claimed in the return of income filed with Revenue u/s 139(1) as against credit of ₹ 79,05,771/- allowed by the AO in the intimation u/s 143(1). While the aforesaid proceedings were going on before the AO u/s 154 , the assessee also filed an additional claim of credit of TDS amount of ₹ 9,93,555/- for the first time before the AO in proceedings being conducted by AO u/s 154 which was not earlier claimed by the assessee in the return of income filed u/s 139(1) with the Revenue. The assessee had submitted that it has duly declared and offered for taxation income corresponding to these prepaid taxes by way of TDS to the tune of ₹ 9,93,555/- in the return of income filed with the Revenue which is not disputed by Revenue. It was submitted that the deductor of TDS has deposited TDS late to the credit of Central Government and also issued TDS certificates late which is the main reason for delay i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken in these two judgments of the co-ordinate benches of the tribunal with which we concurr. The assessee has raised this claim in the proceedings which were conducted by the AO u/s 154 otherwise than by filing revised return of income u/s 139(5) . If the AO could not have taken cognisance of the fresh claim filed by the assessee which was not filed by filing revised return of income u/s 139(5) , the learned CIT(A) being appellate authority could have always admitted the said fresh claim and thereafter adjudicated the same on merits. Hon ble Bombay High Court decision in the case of CIT v. Pruthvi Brokers Shareholders reported in (2012) 349 ITR 336(Bom) is relevant and binding being jurisdictional High Court. Thus, the assessee could not be denied the said claim of credit of TDS to the tune of ₹ 9,93,555/- but however for limited purposes for verification of contentions raised by the assessee, we are restoring this issue of grant of credit for prepaid taxes to the tune of ₹ 9,93,555/- being TDS back to the file of the AO for necessary verification of the TDS certificates filed by the assessee purported to be received from Elecon Engineering Co. P. Ltd. and Prayas Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X
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