TMI Blog2018 (5) TMI 2163X X X X Extracts X X X X X X X X Extracts X X X X ..... in all instances, before the due date of filing the return of income u/s 139(1). This fact is therefore, not in dispute. Thus as relying on State Bank of Bikaner Jaipur [ 2014 (5) TMI 222 - RAJASTHAN HIGH COURT] as well as in case of Jaipur Vidyut Vitran Nigam Ltd. [ 2014 (1) TMI 1085 - RAJASTHAN HIGH COURT] Assessee entitled to deduction in respect of contribution to ESI and PF as the same has been deposited prior to the filing of return of income u/s 139(1). Revenue appeal is dismissed. - Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM For the Assessee : None. For the Revenue by : Shri Anoop Singh (Addl. CIT). ORDER PER: VIJAY PAL RAO, J.M. This appeal by the Revenue is directed against the order dated 31.01.2018 of CIT (A), Jaipur for the A.Y. 2014-15. The Revenue has raised the following grounds:- (i) Whether on the facts and circumstances of the case and in law the Ld. CIT(A) was justified in directing to allow TDS credit of Rs. 14,16,550/- deducted by the bank on interest on FDRs without appreciating the fact that the said income is not includable in assessee's total income and that the TDS payment is not form assessee' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd perused the material available on record. In our view the issue involved in the present appeal had already been adjudicated in the 7 ITA No. 247 248/JP/2014 Rajasthan Avas Vikas Infrastructure Ltd. Vs. DCIT matter of CIT vs. Relcom (2015) 62 Taxmann.com 190 (Delhi) wherein it was held as under :- 6. Having heard the submissions made on behalf of the revenue and after a perusal the orders passed by the CIT(A) and the ITAT, we are of opinion that the said orders do not call for any interference and were warranted and justified in the facts and circumstances of the case. Before we proceed to elaborate on our reasons for the same, a perusal of Section 199 of the Act is necessary. Section 199 reads as follows: 199. Credit for tax deducted. (1) Any deduction made in accordance with the foregoing provisions of this Chapter and paid to the Central Government shall be treated as a payment of tax on behalf of the 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. (2) Any sum referred to in sub-section (1A) of section 192 and pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As the joint venture has not filed return of income and claimed credit for TDS certificates and the TDS certificates have not been doubted, credit has to be granted to the TDS mentioned therein for the assessee. The Revenue cannot be allowed to retain tax deducted at source without credit being available to anybody. If credit of tax is not allowed to the assessee, and the joint venture has not filed a return of income, then credit of the TDS cannot be taken by anybody. This is not the spirit and intention of law. (Emphasis Supplied) 9. At this stage, it is also relevant to note the provisions of Rule 37BA of the Income Tax Rules, 1962, which envisions grant of TDS credit to entities other than the deductee (herein, M/s REPL). We must clarify that we are not oblivious of the fact that Rule 37BA is not directly applicable in the facts of this case. The reliance placed on Rule 37BA is merely to demonstrate that in not all circumstances is TDS credit given to the deductee. In the present case the amount was deposited as FDR s by the assessee on behalf of State of Rajasthan with the Bank of Rajasthan and on the FDR s deposit the interest has been accrued. The TDS was deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee and the bank, the TDS has been deducted. Given that interest income is not taxable either in the hands of the assessee or the state of Rajasthan, the TDS has to be refunded. Since the assessee is acting as the nodal agency and all funds have been routed through it, the refund of TDS has to be routed through it to the State of Rajasthan. Accordingly, we direct the Revenue to refund the TDS of Rs. 38440/- to the assessee with the undertaking to return the said amount to the State of Rajasthan. ITA No. 392/JP/2016 ITA No. 391 392/JP/2016 Rajasthan Avas Vikas Infrastructure Ltd Vs ACIT 8 2.6 In ITA No. 392/JP/2016, the facts are pari-materia to the facts of the case in above appeal in ITA No. 391/JP/2016. Accordingly, our findings and directions contained therein shall apply mutatis mutandis to this appeal as well. In the result, both the appeals of assessee are allowed. In view of the decisions as above the ground of appeal of the assessee is allowed. Thus, it is clear that the ld. CIT(A) has allowed the claim of the assessee by following decisions of Coordinate Benches of this Tribunal in assessee s own case for the assessment years 2009-10 to 2012-13. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of return of income u/s 139(1). Alom Extrusions (2009) 319 ITR 306 (SC): Business expenditure-Deduction on actual payment-Contribution to provident fund- Existing provision creating difficulties Amendment to remove difficulty-Has retrospective effect Finance Act, 2003, making amendment but as if with effect from April 1, 2004-To be read as having retrospective effect from April 1,1988-Income-tax Act, 1961, s. 438. M/s Supersonic Turner Pvt. Ltd vs. ACIT [ITA No. 853/JP/2012]: DCIT Vs. Royal India Jewellery Manufacturing Private Limited [ITA No.582/JP/2008 dated 13/02/2009]: In view of the above and judgments relied on, the claim of the appellant is allowable. Accordingly, this disallowance made by the Assessing Officer is, directed to be deleted. This ground is allowed. Further, as it is clear that this issue is covered by the decisions of jurisdictional High Court in case of CIT vs. State Bank of Bikaner Jaipur 43 taxmann.com 411 as well as in case of CIT vs. Jaipur Vidyut Vitran Nigam Ltd. 265 CTR 62. Accordingly, in view of the binding precedent of the Hon ble jurisdictional High Court we do not find any error or illegality in the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
