TMI Blog2020 (7) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... see in his return of income - also not disputed the said fact that revenues have been offered by the assessee in his return of income but at the same time, has rejected the said claim stating that TCS was deducted in the name of Shri Bheru Singh Tak having different PAN and therefore, the credit of the same cannot be allowed to the assessee. It is a settled legal proposition that the TCS is a form of advance payment on behalf of the assessee and where the assessee has offered the income in particular assessment year and the income has been brought to tax in the hands of the assessee, the corresponding TCS should be allowed to the assessee. Therefore, in the instant case, where there is no dispute that the income has been offered by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and perused the material available on record. It is a matter of record that the assessee has filed a copy of agreement dated 20.07.2011 which is available on record and therein, both the parties had agreed that the responsibility to file tax return in respect of transactions relating to the liquor shop shall be on the assessee, and TCS shall be claimed by the assessee and not by Shri Bhairu Singh. Further, we find that the ld. CIT(A) has returned a finding that the TCS actually been deducted of ₹ 2,28,714/- in the name of Shri Bheru Singh Tax ( PAN No. AOBPT6127). It is therefore a matter of record that there is an written understanding between the main licensee and the assessee that the latter shall disclose the business transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a deductee nor the condition laid down under rule 37BA(2) are fulfilled. Accordingly, he upheld the order passed by the AO rejecting the application of assessee u/s 154 of the Act. Against the said findings, the assessee is in appeal before us. 5. During the course of hearing, the ld AR submitted that the assessee had entered into an agreement dated 20.07.2011 with Bhairu Singh wherein he has declared that the filing of tax return is the responsibility of the assessee and he has also agreed that he will not claim any TCS in his personal tax return. It was submitted that the assessee has no access to his personal tax return but it is a fact that he has not claimed any credit of TCS in his tax return and which can be verified by the Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the main licensee that they have not claimed the TCS from the department and it was accordingly submitted that the said decisions cannot be applied in the case of the assessee as no details have been furnished regarding the main licensee as to whether he has claimed any credit for the TCS in the return of income or not and further the specific requirements of Rule 37BA(2) of the Act have not been fulfilled. The ld DR accordingly supported the order of the lower authorities. 7. We have heard the rival contentions and perused the material available on record. Firstly, in the proceedings u/s 154 of the Act, there has to be a mistake apparent from record which shows that the assessee was eligible for TCS but was not granted the credit thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inate Bench in case of M/s Jay AMBEY Wines (supra) which read as under:- 2.7 The essence of the above stated provisions and corresponding rules is that the tax deducted at source (TDS) is nothing but tax, and credit for TDS should go to the person in whose hands the income is rightfully and finally assessed to tax in accordance with law irrespective of the person in whose hands the TDS has been deducted and TDS certificate has been issued at first place. If we look at the provisions of section 206C read with section 190 of the Act, the nature of tax collection at source (TCS) is exactly identical to TDS and it is in the nature of tax on income which has been collected at source in respect of specified business and the nature of goods a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee and he has also agreed that he will not claim any TCS in his personal tax return. It was submitted by the ld AR that the assessee has no access to Shri Bhairu Singh s personal tax return but it is a fact that he has not claimed any credit of TCS in his tax return and which can be verified by the Tax Department as PAN NO. AOBPT6127 of Shri Bhairu Singh is on record and available with the Assessing officer. The matter is accordingly set-aside to the file of the Assessing officer to verify whether TCS has been claimed by Shri Bheru Singh Tak and whether on verification, it is found that TCS has not been claimed by Shri Bheru Singh Tak, allow the TCS corresponding to income declared by the assessee in his return of income for the impugned as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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