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TMI Blog2023 (6) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... ion filed on behalf the appellant/revenue seeking condonation of delay in re-filing the appeal. 2. According to the appellant/revenue, there is a delay of 300 days. 3. Mr C.S. Aggarwal, learned senior counsel, who appears on behalf of the respondent/assessee, says he does not oppose the prayer made in the application. 4. Accordingly, the delay is condoned. The application is disposed of in the said terms. ITA 276/2023 5. This appeal concerns Assessment Year (AY) 2005-06. 6. The appellant/revenue seeks to challenge the order dated 25.08.2020 passed by the Income Tax Appellate Tribunal [in short, "Act"]. 6.1 The only question which arose for consideration before the Tribunal was whether or not the appellant/revenue was right in refusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of off-shore supply received by it from assessee in Japan. The assessee had received advances against off-shore supplies to be made of Rs. 4,47,45,548/- to be TDS and against the said advance BBMB had deducted tax at source that the surcharge which aggregated to Rs. 1,94,55,135/-. Further the supplies were made against the said advances in the financial year 2006-07 relevant to Assessment Year 2007-08. BBMB before remitting the aforesaid advances made an application u/s. 195(2) seeking exemption from deduction at source on payments made to the Japan for off-shore supply contract. On 25.05.2004, an order u/s. 195(2) was passed the ITO-Ward-3(1), Chandigarh directing BBMB to deduct tax @ 40% and surcharge of 2.5% on the gross paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver held to be taxable in India. Once the payment on which TDS has been deducted is not taxable in India there is no question as to why such TDS amount is not refunded or credit is not being given to the assessee. 16. The provision of Section 199 would apply in a case where taxes are deducted in accordance with the provision of Chapter-XVII and in relation with income which is assessable. In the assessee case since the tax were deducted in view of the order passed u/s 195(2) dated 25.05.2004 which was subsequently cancelled on 06.02.2014 and therefore taxes withheld were not in accordance with the provisions of 195 of the Act and hence Section 199 will not apply in such case. Once the receipt by itself could not have been subjected to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment year for which such income is assessable]: Provided that (i) in a case where such person or owner [or depositor or unit-holder] or shareholder is a person, whose income is included under the provisions of Section 60, Section 61, Section 64, Section 93 or Section 94, in that the total income of another person, the payment shall be deemed to have been made on behalf of, and the credit shall be given to, such other person; (ii) in any other case, where the dividend on any share is assessable as the income of a person other than the shareholder, the payment shall be deemed to have been made on behalf of and the credit shall be given to, such other person in such circumstances as may he prescribed; [provided further that where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. According to us, having regard to the aforesaid observations, it is evident that the singular issue which arose for consideration before the Tribunal was whether tax credit could have been given qua tax deducted at source, vis-à-vis advances received by the respondent/assessee, which is an entity located in Japan, from the Board against off-shore supplies made in the succeeding period i.e., FY 2006-2007 [AY 2007-2008]. The Tribunal having returned a finding of fact that there was nothing on record to suggest that any taxable income arose or accrued in India in favour of the respondent/assessee either in AY 2006-2007 or AY 2007-2008, the impugned order does not call for any interference. 11. We are of the opinion that the reas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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