TMI Blog2022 (5) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... enthil Kumar, Judicial Member For the Appellant : Shri Dhinal Shah, AR For the Respondent : Shri Alpesh Parmar, Sr.DR ORDER PER T.R. SENTHIL KUMAR, JUDICIAL MEMBER: The captioned appeal has been filed at the instance of the Assessee against the order of the Commissioner of Income Tax (Appeals) 13, Ahmedabad [CIT(A) in short] relating to the Assessment Year (AY) 2018-19 as against the intimation passed u/s.143(1) of the Income Tax Act, 1961 (hereinafter referred to as the Act ). 2. The brief facts of the case is that the assessee is an individual and also non-resident. The assessee submitted before the CIT(A) that he had inherited movable and immovable properties of his late father Dr.Navinbhai Parekh, who expired on 17.2.2017. The assessee is the only legal heir of his late father since his mother also pre-deceased. Hence, the entire estate of his late father and income thereon is filed by the assessee for the AY 2018-19 in his individual capacity. The major income derived from income from other sources ; namely, bank deposits from Bank of Baroda and NSC. The assessee s father had deposits with Bank of Baroda on which interest income of Rs.13,04,682/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e income by/of the son/inheritor or be owned up/clubbed with the income of the son/inheritor. Even Section 65 of the Act does nto appear to support the case of the appellant. As per provision of sec.159 of the Act, the appellant can be a legal representative of the deceased father but the proceedings under the Act shall be a separate proceeding separate from the proceedings in the case of the appellant himself. Sec.159 does not make a case of clubbing and does not apply for the purpose of appeal under consideration. 4.4. However the appellant may have approached the AO u/s.154 for rectification of the order dated 12.04.2019 u/s.143(1). No such claim has been made in the submission. 4.5. Now for the purpose of appeal under consideration the issue is whether the TDS deducted in the case of Shri N B Parikh, the deceased father of the appellant should be allowed as prepaid tax in the hands of the appellant because the income of the deceased father has been declared by the appellant in his return of income. In this regard the only case law, Naresh Bhavani Shah (2017) 396 ITR 0589 (Guj.), quoted by the appellate in his submission, does not protect and help the appellant as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so held now. 4. The AO has erred in charging interest under section 234B of the Act at Rs.23,641/- as against correct amount of Rs.5,189/-. It is submitted that it be so held now. 4.1.The AO has erred in charging interest under section 234C of the Act at Rs.19,257/- as against correct amount of Rs.12,644/-. It is submitted that it be so held now. 5. The Ld.counsel for the assessee Shri Dhinal Shah appearing for the assessee submitted that when the income of the late father of the assessee, a sum of Rs.13,42,190/- which has been accepted by Revenue, the corresponding TDS is denied to the assessee on the ground that mismatching of PAN of the assessee s deceased father. The assessee on admitting the amount of Rs.13 lakhs also paid self-assessment tax of Rs.2,70,000/- for the balance income of his late father. Therefore, the CPC Bengaluru is not correct in denying the TDS credit of his late father. Inadvertently, the assessee being a nonresident failed to instruct the Bank of Baroda about the change in PAN for his late father. Thus, the assessee cannot be denied the benefit of TDS made by the Bank of Baroda and pleaded to allow the TDS credit and allow the appeal in favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) also, in his impugned order, raising a question why the assessee has not filed a separate return as estate of legal heir of late Dr.N.B.Parikh. Thus, the Ld.CIT(A) also failed to consider that as per section 159 of the Act, the legal heir is supposed to file the return of income. The assessee is the only legal heir of his deceased father and his mother is also pre-deceased her husband. The assessee s father is died on 17/02/2017 and the present AY is 2018-19. Being a single legal heir, the assessee also being a NRI filed the entire income in his hands and he cannot be denied the benefit of TDS on fixed deposit income made in his father s name. Therefore, the finding arrived at by the Ld.CIT(A) is legally not correct and we set aside the same and direct the CPC Bengaluru to provide the TDS credit in the name of his late father to the assessee. 7.3. Further, the Ld.CIT(A) is also not correct in holding that Hon ble Jurisdictional High Court decision in the case of Naresh Bhavani Shah (HUF) vs. CIT reported in (2017) 396 ITR 0589 (Guj.) = (2017) 84 taxmann.com 53 (Gujarat) and the ratio of the said judgement is totally different and is distinguishable. For better understanding, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber of such transactions in any accounting year are likely to take place. The most dependable identification of the deductee would be his PAN which would be a unique identification number so far as an individual or an entity is concerned. The anxiety of the department therefore to ensure proper matching of the PAN in the TDS certificate as compared to the PAN of the assessee who claims the benefit of such tax deducted at source, therefore, cannot be lightly brushed aside. The short question is, In a genuine case like the case on hand, is the person remedyless? 9. It is in this context, the provision of Section 199 would come into play. As per sub-section (1) of Section 199 any deduction of tax at source would be treated as payment of tax on behalf of the person from whose income the deduction was made or the owner of the security or of the depositor or of the owner of the property or unit holder or the share holder as the case may be. Sub-section (3) of Section 199 however permits a deviation authorizing the power to make rules in respect of giving credit of tax deducted at source or the year during which the credit of such tax deducted at source should be granted. In exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 37BA where whole or part of the income on which tax has been deducted at source is assessable in the hands of a person other than the deductee, credit could be given to such other person and not to the deductee provided the three conditions contained therein are satisfied. These conditions in brief are that the deductee files a declaration with the deductor in this respect, such declaration would contain the details of the person entitled to the credit and the reasons for giving such credit and lastly the deductor issues certificate for deducting tax at source in the name of such a person. In the present case, the petitioner could have applied to RBI in terms of sub- rule 2 of Rule 37BA and completed the procedure envisaged therein. However, one can gather that there is no dearth of power with the department to grant credit of tax deducted at source in such a genuine case. We are not suggesting that the requirements of sub-rule 2 are not to be followed before such benefit can be granted. Invariably in all cases such procedure would have to be completed before a person can rightfully claim credit of tax deducted at source where the TDS certificate shows the name and PAN of som ..... X X X X Extracts X X X X X X X X Extracts X X X X
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