TMI Blog2023 (2) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... 154 of the Act can only be one particular conclusion, then even if in reaching that conclusion, analysis has to be done then it can be said that the issue is debatable which cannot be done in proceedings u/s 154 of the Act. Conclusion in the present case can only be one viz., that one person alone is entitled to claim credit for TCS and it is only the assessee who has claimed credit for TCS and not the licencee. In such circumstances, the application u/s 154 of the Act ought to have been entertained by the Revenue. DR also made submission that the decision of the ITAT, Jaipur Bench, was in relation to provisions of Rule 37BA of the Rules which is applicable to TDS and not to TCS and it is only Rule 37-I of the Rules which is applicable when credit for TCS is claimed. The very basis of the decision of in the case of Jai Ambey Wines [ 2017 (1) TMI 986 - ITAT JAIPUR ] is based on the facts that what is applicable for TDS should also be applicable for TCS and merely because there is no Rule identical to Rule 37BA(2)(i) of the Rules with reference to TCS provisions, it cannot be the basis for the Revenue to deny the legitimate claim for credit of TCS made by an assessee. The assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Bar Restaurant. The total purchases on which TCS collected, sales and income derived thereon is duly accounted by Hotel Ashok Garden, accordingly the TCS is claimed by Hotel Ashok Garden ( PAN : AACFH4184Q). I once again state and confirm that I have not claimed these TCS in my return of income for the A.Y 2016- 17. 4. The request for rectification was however rejected by the AO by an order dated 18.04.2022 for Assessment Years 2016-17 and 2019-20 and dated 16.04.2022 for Assessment Years 2017-18 and 2018-19. The Assessee filed appeal against orders under section 154 of the Act claiming that the assessee should be given credit for TCS. The First Appellate Authority (FAA) was of the view that under section 254 of the Act only a mistake apparent from the record can be rectified. In the opinion of the FAA, mistake apparent from the record means a mistake which is obvious and patent mistake and not something which is established by a long-drawn process of reasoning on points on which there may be conceivably two opinions. In other words, the FAA took the view that a decision on a debatable point of law cannot be said to be a mistake apparent on record. According to the FAA, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person from whose income the deduction was made, or of the owner of the security, or of the depositor or of the owner of property or of the unit-holder, or of the shareholder, as the case may be. Any sum referred to in sub-section (1A) of section 192 and paid to the Central Government shall be treated as the tax paid on behalf of the person in respect of whose income such payment of tax has been made. 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. Section 206C reads as under: (1) Every person, being a seller shall, at the time of debiting of the amount payable by the buyer to the account of the buyer or at the time of receipt of such amount from the said buyer in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, collect from the buyer of any goods of the nature specified in column (2) of the Table below, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the whole or any part of tax deducted at source, as the case may, shall be given to the other person and not to the deductee. Provided that the deductee files a declaration with the deductor and deductor reports the tax deduction in the name of the other person in the information relating to deduction referred to in sub-rule (1). 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 as specified in section 206C of the Act. In light of above, the credit for TCS should be given to the assessee which is finally and lawfully assessed to tax in respect of the corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Rule 37-I of the Rules and came to the conclusion that credit should be given to TCS on the basis of the ultimate outcome before the Central Excise authorities regarding transfer of excise licence. The Tribunal also held in the aforesaid case that the AO can take necessary safeguards to ensure that the interest of the Revenue is not affected or prejudiced in any manner. 9. It can thus be seen that the facts of the case cited by the learned DR are different. Nevertheless, the fact remains that the Tribunal in all these decisions took the view that credit for TCS should not be denied when there is in fact no double claim made for the same TCS by 2 different persons. As we have already observed in the present case, Raju S. Shetty the licencee has given Indemnity Bond before the AO clearly specifying that he has not claimed credit for TCS in his return of income. In such circumstances, I am of the view that the claim ought to have been allowed. In this regard, I may also mention that if the ultimate conclusion on an application under section 154 of the Act can only be one particular conclusion, then even if in reaching that conclusion, analysis has to be done then it can be sai ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
