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TMI Blog2021 (7) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... and self assessment tax amounting to Rs. 1,60,0000 a refund of Rs. 34,58,894 was claimed. The Rol was selected for scrutiny and the assessment was concluded vide assessment order under section 143(3) of the Act dated December 17, 2009 wherein income returned by the assessee in the Rol was accepted by the Deputy Commissioner of Income-tax, Circle 12(3) (A0). 3. During the course of assessment proceedings, the assessee vide letter dated August 17, 2009 had filed additional TDS certificates, amounting to Rs. 1,13,86,500 issued to it by Nokia India Private Limited (Nokia India). The said certificates were not filed by it along with the RoI filed since the TDS certificates were received only after the expiry of time prescribed for filing of original as well as revised Rol for AY 2007-08. The Details of the TDS certificates and the credit for TDS claimed by the assessee vide the aforesaid letter were as follows: Certificate Number Amount on which tax deducted (Rs) Total TDS (Rs) 533/ Nokia-ACCL/ 2006-- 07 dated June 4, 2007 182,332,205 10,228,837 534/ Nokia-ACCL/ 2006- 07 dated June 4, 2007 14,128,499 792,608 535/ Nokia-ACCL/ 2006-- 07 dated June 4, 2007 429,045 9,6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,96,304/- corresponding to the tax deducted and deposited as per TDS Certificate has not been offered to taxation by the assessee for the subject AY, the request for granting credit for TDS of Rs. 1,13,86,500/- could not be allowed. 7. On appeal by the assessee, CIT(A) allowed credit of TDS as requested by the assessee in the application u/s.154 of the Act. The following were the relevant observation of the CIT(A): "6.0. I have perused the order u/s 154 and the arguments of the appellant, along with the case laws relied upon by him. On a consideration of the facts, I find that I am not in agreement with the AO's stand. Once the TDS is recovered from the appellant and deposited into the Govt. treasury, the credit for the same has to be given to the appellant, since there is no provision in law for the year in appeal for a direct refund of the TDS already deposited even if the same happened to be deducted in excess. I have to note that the claim of the appellant is duly supported by the form 26AS also, which testifies to the amount being actually accounted for in the Govt. account. It is a material fact that the action of the deductor in deducting and depositing the TDS into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts and in the circumstances of the case the learned CIT(A) has failed to appreciate the fact that the deductor has committed a mistake in deducting the tax at source on the basis of purchase order placed by the assessee company without there being any actual services rendered by the assessee during the A.Y. under reference and as said transaction was reversed in the succeeding A.Y. i.e. A.Y. 2008-09 based on actual invoices raised. 6. For these and other grounds that may be urged at the time of hearing, it is prayed that the order of the CIT(A) in so far as it relates to the above grounds may be reversed and that of the Assessing Officer may be restored. 7. The appellant craves leave to add, alter, amend and / or delete any of the grounds mentioned above. 9. The learned DR submitted that as per section 199 of the IT Act, no assessee can claim the TDS credit without admitting corresponding income and placed reliance on the following case laws: 1. Pardeep Kumar Dhir Vs. ACIT [2007] 107 1TD 118: It is the decision of Hon'ble ITAT Chandigarh B Bench [third member[ 2. ACIT Vs Himachal Joint Venture [2008] in ITA No.344 Et 345 /Bang/2008 of Hon'ble ITAT A Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for as income by the assessee for Assessment Year 2007-08. It is a plea of the assessee that the tax deductor was deducting tax on the basis of purchase orders whereas the assessee was accounting for income only on the basis of bills raised by it after services were rendered by the assessee. The assessee has not given any explanation with regard to when and how the income of Rs. 20,32,25,349/- had been accounted for by it as income. At the time of hearing, the Counsel for assessee submitted that the TDS amount of Rs. 1,13,86,500/- erroneously deducted by the deductor had been subsequently adjusted to the extent of Rs. 53,51,643/-. Though a chart giving in-voice numbers and dates have been filed, these details not had not been filed either before the lower authorities or any stand taken before the lower authorities that subsequently a part of the TDS amount has been adjusted against amounts due by the assessee to the deductor. In such circumstances, we have to proceed on the basis of facts as it prevailed before the lower authorities. 14. The provisions of section 199 of the Act as it existed prior to 01.04.2008 clearly lays down that credit for TDS will be given in the Assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rala High Court in the case of CIT Vs. Smt. Pushpa Vijoy (2012) 19 taxmann.com 157 (Kerala) wherein the Hon'ble Kerala High Court took the view that in the light of provisions of section 199 of the Act, an assessee is entitled to credit of tax based on TDS certificates only in Assessment Year in which income in respect of which tax is deducted is assessed to tax. The other decision cited by the learned Counsel for the assessee of the various Benches of ITAT are contrary to the law laid down by the 3rd Member decision in the case of Pradeep Kumar Dhir (supra). In the case of Escorts Vs. DCIT (2207) 15 SOT 368 (Delhi) (Delhi), the factual background under which credit for TDS was allowed was that the assessee claimed that the income which was subject to TDS was not taxable in his hands. In the present case, the assessee has not explained as to the status of the income as reflected in the TDS certificate. The other decision cited by the learned Counsel for the assessee in the case of Toyo Engg. India Ltd., Vs. DCIT (2006) 5 SOT 616 (Bombay) is contrary to the law laid down in 3rd Member decision in the case of Pradeep Kumar Dhir (supra). The decision of the Hon'ble Andhra Pradesh High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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