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TMI Blog2023 (6) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... ances of the case and in law, the ld. CIT(A)/Assessing Officer ought to have allowed the refund of tax deducted/paid on receipts from sale of software." 4. The underlying facts in the first ground are that the assessee is a company, incorporated in United States of America and is engaged in the sale of software. In its return of income for the year under consideration, the assessee has offered to tax income and claimed corresponding credit of TDS amounting to Rs. 16,58,287/-. 5. While processing the return, Centralized Processing Centre [CPC] did not allow credit of Tax Deducted at Source [TDS]. The assessee follows the Accrual System of Accounting and recognizes its income from sale of software when invoices are raised. During the year under consideration, the assessee had sold software to its two customers in India. Considering that the invoices for the sale of software were raised by the assessee during the year under consideration, entire income arising under the invoices was offered to tax in the return of income filed for the year under consideration. 6. While invoices were raised by the assessee during the year under consideration, customers deducted tax on the invoices i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the credit in respect of tax deducted or tax paid in terms of the provisions of the chapter, make such Rules as may be necessary, including the 4 Rules for the purpose of giving credit to a person other than those referred to in subsection (1) and subsection (2) and also the assessment year for which such credit may be given. So also according to rule 37 BA (3) of the Rules, credit for tax deducted at source and paid to the Central government, shall be given for the assessment year for which such income is assessable; and that where tax has been deducted at source and paid to the Central government and the income is assessable over a number of years, credit for tax deducted at source shall be allowed across the years in the same proportion in which the income is assessable to tax. 9. On a careful consideration of the matter in the light of the provisions under section 199 (3) of the Act and also rule 37 BA (3) of the Rules, we are of the considered opinion that in this case where the tax has been deducted at source and paid to the Central government by the Hindustan Aeronautics Limited in the assessment year 2018-19 and such TDS relates to the income assessable over the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court in the case of M/s Gurjagravures Private Limited [1978] AIR 40 169 wherein the Hon'ble Supreme Court has held as under: "We do not find it possible to agree with the High Court that if an item of income is taxed, the question of its non- taxability should be taken to have been considered by the Income-tax officer though no such claim was made before, him by the assessee. This is directly opposed to the view taken by this Court in Commissioner of income tax (Central),. Calcutta v. Bahadur Hardutroy Motilal Chamaria(1) Before refer to this case in more detail, we think it necessary to. point out a mistaken assumption appearing in the judgment under appeal. If the High Court assumed that a portion of the profit in the relevant assessment year was exempt from tax under section 84, only the assessee failed to claim an exemption. In narrating the facts of the case the judgment records that the assesses was "admittedly entitled to exemption". Again, in the extract quoted above, it appears to have been assumed that a certain portion of the profit was exempt from tax under section 84. We find no basis for the assumption in the statement of the case drawn up by the Tribunal. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that there was any material on record to sustain the claim for exemption which was made for the first time be fore the Appellate Assistant Commissioner. We are not here called (1)(1967) 66 I.T.R. 443. upon to consider a case where the assessee failed to make a claim though there was evidence on record to support it, or a case where a claim was made but no evidence or insufficient evidence was adduced in support. In the present case neither any claim was made before, the Income- tax officer, nor was there any material on record supporting such a, claim. We therefore hold that on the facts of this case, the question referred to the High Court should have been answered in the, negative." 18. We have given thoughtful consideration to the rival submissions. In the words of the Hon'ble High Court of Bombay, said in the case of Pruthvi Brokers & Shareholders 349 ITR 336 as under: "It is indeed a question of exercise of discretion whether or not to allow an assessee to raise a claim which was not raised when the return was fi led or the assessment order was made." 19. As held by the Hon'ble Supreme Court, there may be several factors justifying the raising of a new plea in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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