M/s. National Agricultural Co-operative Marketing Federation of India Ltd., New Delhi V. DCIT, New Delhi

ITA 1106/DEL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6662 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 24-08-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 26-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Keywords: Revised return
• Section: 154

Judgement Text

1 ITA NOS. 1105 TO 1108/DEL/2014 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: E NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEM BER AND SMT SUCHITRA KAMBLE, JUD ICIAL MEMBER I.T.A .NO. 1105/DEL/2014 (A.Y 2006-07) I.T.A .NO. 1106/DEL/2014 (A.Y 2007-08) I.T.A .NO. 1107/DEL/2014 (A.Y 2008-09) I.T.A .NO. 1108/DEL/2014 (A.Y 2009-10) NATIONAL AGRICULTURAL CO - OPERATIVE MARKETING FEDERATION OF INDIA LTD, NAFED HOUSE, SIDDHARTHA ENCLAVE, ASHRAM CHOWK, RING ROAD NEW DELHI AAAAN4629F (APPELLANT) VS DCIT CIRCLE-32(1) NEW DELHI (RESPONDENT) APPELLANT BY SH. HARIN MEHTA, CA SH. SANJEEV PATRA, CA RESPONDENT BY SH. S. K. JAIN, SR. DR ORDER PER SUCHITRA KAMBLE, JM THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST THE ORDER DATED 22/3/2013 PASSED BY CIT(A)-XXVI, NEW DELHI. DATE OF HEARING 24.08.2016 DATE OF PRONOUNCEMENT 18.11.2016 2 ITA NOS. 1105 TO 1108/DEL/2014 2. THE GROUNDS OF APPEALS ARE AS UNDER: 1. THAT THE CONSOLIDATED ORDER DATED 26/12/2013 PASSED BY THE LD.CIT(A)-XXVI, NEW DELHI, FOR ASSESSMENT YEAR 2006-07 TO 2009-10 & 201 1-12 IS CONTRARY TO THE FACTS AND BAD IN LAW. 2. THAT THE LD. CIT(A) WAS NOT JUSTIFIED AND ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW IN NOT ALLOWING CREDIT OF TDS OF RS. 12, 30,650/- FOR A.Y. 2006-07 IN SPITE OF THE FACT THAT THE CORRESPONDING INCOME WAS DULY INC LUDED IN THE TAXABLE INCOME OF THAT ASSESSMENT YEAR. 3. THAT THE LD. CIT(A) WAS NOT JUSTIFIED AND ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW IN HOLDING THAT THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF GOETZ (INDIA) LTD. IS NOT APPLICABLE IN THE CASE OF THE A PPELLANT BY DRAWING ERRONEOUS INFERENCE THAT THE SAID DECISION IS APPLICABLE FOR FRESH CLAI M OF ANY EXPENSE AND NOT IN THE CASE OF CLAIM OF TDS/TCS AND THEREBY NOT ALLOWING CREDIT OF TDS OF RS. 12,30,650/- FOR A.Y. 2006-07 TO THE APPELLANT. 4. THAT THE LD. CIT(A) WAS NOT JUSTIFIED AND ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW IN CONFIRMING THE ACTION OF THE A.O. REJ ECTING THE CLAIM OF TAX CREDIT U/S 154 BY HOLDING THAT THERE IS NO PRIMA-FACIE MISTAKE CREPT IN THE ASSESSMENT ORDER STATING THAT IT IS BEYOND THE PURVIEW OF SECTION 154(1) AND 154(1 A ). THE LD. CIT(A) FELL IN ERROR AND WAS NOT JUSTIFIED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW IN HOLDING THAT EVEN IN VIEW OF THE PROVISIONS OF SECTION 199(3) AND RULE 3 7BA (3) THE APPELLANT HAS FAILED TO DEMONSTRATE BEFORE IT THE CORRESPONDING INCOME RELE VANT TO THE TDS/TCS HAS BEEN OFFERED FOR TAX IN RESPECTIVE AYS. 5. THAT THE LD. CIT(A) WAS NOT JUSTIFIED AND ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW IN HOLDING THAT THE PROVISIONS OF SECTIO N 155(14) ARE NOT APPLICABLE IN APPELLANTS CASE. 3. THE ASSESSEE FAILED TO CLAIM TDS IN THE ORIGINAL RETURNS OF INCOME IN THE ASSESSMENT YEARS 2006-07, 2007-08, 20 08-09 AND 2009-10 DURING RELEVANT TIME. THEREAFTER, THE ASSES SEE FILED APPLICATIONS U/S 154 OF THE INCOME-TAX ACT 1961 (IN SHORT THE ACT) FOR ALLOWING CREDIT OF TDS & TCS AS THE CASE MAY BE IN THE SAID ASSESSMENT YEARS. THE ASSESSING OFFICER AFTER PLAC ING RELIANCE ON THE DECISION OF GOETZ (INDIA) LTD. VS. CIT 2006 156 TAXMAN 1 (SC), REJECTED THE CLAIM HOLDING THAT NO FRESH CLAIM CAN BE MADE OTHER THAN TO THE VALID REVISED RETURN OF INCOME. THE AS SESSING OFFICER 3 ITA NOS. 1105 TO 1108/DEL/2014 FURTHER OBSERVED THAT NO CLAIM OF CREDIT OF TDS/TCS WAS MADE IN THE ORIGINAL RETURN OF INCOME. THEREFORE, THE ASSE SSING OFFICER HELD THAT THE CLAIM MADE VIDE APPLICATION U/S 154 OF THE ACT AMOUNTS TO A FRESH CLAIM AND NOT A PRIMA FACIE MISTAKE APPAREN T FROM THE RECORD. ACCORDINGLY, ALL APPLICATIONS U/S 154 OF T HE ACT WERE REJECTED. THE ASSESSEE FILED APPEAL BEFORE THE CIT (A). THE CIT(A) DISMISSED THE APPEALS OF THE ASSESSEE. 4. THE LD. AR SUBMITTED THAT THE TDS CERTIFICATES W ERE NOT IN POSSESSION WITH THE ASSESSEE AT THE TIME OF FILING ORIGINAL RETURNS, AND, THEREFORE, WAS NOT ABLE TO CLAIM THE TDS. THE LD. AR FURTHER SUBMITTED THAT THE REVISED RETURN INCLUDING THE CLA IM OF TDS WAS FILED WITHIN TIME. THUS, THE APPLICATIONS UNDER SE CTION 154 OF THE ACT SHOULD HAVE BEEN ALLOWED BY THE ASSESSING OFFIC ER AS THERE WAS NO TIME LIMIT INVOLVED. THE ASSESSING OFFICER HAS THE AUTHORITY TO LOOK INTO THE MATTER OF THE TDS CERTIFICATE WHICH W AS NOT EARLIER BROUGHT ON RECORD DUE TO THE GENUINE REASON OF THE ASSESSEE. THE ASSESSEE ALSO RELIED ON KARNATAKA HIGH COURT JUDGME NT IN THE CASE OF CIT VS. DIGITAL GLOBAL SOFTWARE LTD. 2011 15 TAX MAN.COM 78. 5. THE LD. AR ALSO RELIED ON THE ORDER OF THE ITAT, NEW DELHI IN THE CASE OF ITO VS. KRISH RAJ HOTELS AND MOTELS PVT . LTD 2012, 27 TAXMAN.COM. THE SAID ORDER HELD AS UNDER: 29. FROM THE ABOVE RULES, IT IS CLEARLY EVIDENT T HAT CREDIT FOR TAX DEDUCTED AT SOURCE AND PAID TO THE CENTRAL GOVE RNMENT SHALL BE GIVEN ON THE BASIS OF INFORMATION RELATING TO DEDUCTION OF TAX FURNISHED BY THE DEDUCTOR TO THE IT AUTHORIT IES AND THE 4 ITA NOS. 1105 TO 1108/DEL/2014 INFORMATION IN THE RETURN OF INCOME IN RESPECT OF T HE CLAIM FOR THE CREDIT FOR THE ASSESSMENT YEAR FOR WHICH SUCH INCOM E IS ASSESSABLE. 30. THE ORDER UNDER SECTION 154 OF THE IT ACT WAS P ASSED BY THE A.O ON 29 TH JULY, 2010. THE RULES, AS STALED ABOVE, WERE INSERTED W.E.F. 1 ST APRIL, 2009. THE A.O WAS, THEREFORE, BOUND BY THESE RULES. BY NOT GRANTING THE CREDIT OF TDS TO THE ASSESSEE, RR. 37BA (1), (3) (I) AND (4) WERE FLOUTE D. THE LEARNED CIT(A) CORRECTLY RECTIFIED THIS POSITION ALSO. 31. THE DEPARTMENT HAS NOT BEEN ABLE TO SHOW AS TO WHY, IN THIS SCENARIO THE ASSESSEE WAS REQUIRED TO FILE ANY REVISED RETURN OF INCOME. THERE WAS NO EXCESS TDS TO BE CL AIMED. IT WAS DUE TO SHEER UNINTENDED INADVERTENCE THAT THE T OTAL TDS OF RS.31,47,636/- DID NOT GET SHOWN IN THE RETURN, THO UGH AS PER THE TDS CERTIFICATES FILED ALONG WITH THE RETURN, T HE TOTAL TDS UNDISPUTEDLY WAS OF RS.31,47,636/-. 32. IN VIEW OF THE ABOVE DISCUSSION, WE HOLD THAT T HE CIT(A) HAS RIGHTLY DIRECTED TO A.O TO ALLOW CREDIT OF TDS OF RS.31,47,636/- TO THE ASSESSEE AND TO GRANT CONSEQU ENTIAL REFUND. THUS, FINDING NO ERROR WHATSOEVER IN THE I MPUGNED ORDER, THE SAME IS HEREBY CONFIRMED. THE GRIEVANCE OF THE DEPARTMENT IS FOUND TO BE SANS SUBSTRATUM. IT IS, HENCE REJECTED. 6. THE LD. DR RELIED ON THE CIT(A)S ORDER. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL T HE RECORDS. THE TDS CERTIFICATES WERE NOT IN POSSESSION WITH TH E ASSESSEE AT THE TIME OF FILING ORIGINAL RETURNS, AND, THEREFORE , WAS NOT ABLE TO CLAIM THE TDS. IN FACT, THE REVISED RETURN INCLUDED THE CLAIM OF TDS AND THE SAME WAS FILED WITHIN TIME. THUS, UNDER SE CTION 154 OF THE ACT SHOULD HAVE BEEN ALLOWED BY THE ASSESSING OFFIC ER. THE 5 ITA NOS. 1105 TO 1108/DEL/2014 ASSESSING OFFICER HAS THE AUTHORITY TO LOOK INTO TH E MATTER OF THE TDS CERTIFICATE WHICH WAS NOT EARLIER BROUGHT ON RE CORD DUE TO THE GENUINE REASON OF THE ASSESSEE. THE RELIANCE ON TH E JUDGMENT OF THE HONBLE KARNATAKA HIGH COURT JUDGMENT IN THE CA SE OF CIT VS. DIGITAL GLOBAL SOFTWARE LTD. 2011 15 TAXMAN.COM 78 IS PROPER. THE HONBLE HIGH COURT HELD THAT AS UNDER:- 18. EVEN IF IT IS ERRONEOUS, UNLESS THE SAID ERRON EOUS ORDER IS PREJUDICIAL TO THE INTEREST OF THE REVENUE, THE COM MISSIONER COULD NOT HAVE EXERCISED THE SAID POWER. FROM THE ADMITTED MATERIAL ON RECORD, THE AMOUNT THAT IS ORDERED TO B E REFUNDED TO THE ASSESSEE IS NOT THE AMOUNT, WHICH IS LAWFULLY D UE TO THE REVENUE AT ALL, IT WAS AN AMOUNT WHICH THE REVENUE LEGITIMATELY SHOULD HAVE REFUNDED IF ONLY THE CLAIM HAD BEEN MADE IN THE RETURN ENCLOSING THE CERTIFICATES UNDER SECTION 203. THE SAID AMOUNT SHOULD HAVE BEEN REFUNDED TO THE AS SESSEE. BECAUSE HE WAS HANDICAPPED BY SUCH CERTIFICATES NOT BEING FORWARDED TO HIM, CONSEQUENTLY NOT ABLE TO MAKE THE CLAIM, SUCH A CLAIM WAS NOT MADE. THE MOMENT HE GOT POSSE SSION OF THOSE CERTIFICATES ON 12/2/2011, WITHIN TWO YEARS F ROM THE DATE OF THE END OF THE ASSESSMENT YEAR, HE HAS PUT FORTH THE CLAIM. THE SAID AMOUNT WAS NOT A LAWFUL AMOUNT TO THE GOVE RNMENT. IT WAS AN AMOUNT WHICH SHOULD HAVE BEEN REFUNDED TO THE ASSESSEE. IN THE PRESENT ASSESSEES CASE, WHEN THE ASSESSEE W AS IN POSSESSION OF TDS CERTIFICATES, THE ASSESSEE IMMEDI ATELY CLAIMED THE SAME IN REVISED RETURN AND THAT TO WITHIN STIPU LATED TIME. THE CASE LAWS SUBMITTED BY THE ASSESSEE ALSO SUPPORTS T HE SAME. THE RELIANCE OF THE ASSESSING OFFICER ON THE HONBLE AP EX COURT DECISION IN CASE OF GOETZ (INDIA) LTD. IS IN FAVOUR OF THE A SSESSEE AS THERE IS GENUINE AND VALID CLAIM OF TDS AS IT IS NOT NEW BUT THE TDS CERTIFICATE WAS ISSUED LATER ON WHICH WAS REFLECTED IN THE REVISED 6 ITA NOS. 1105 TO 1108/DEL/2014 RETURN OF INCOME OF THE ASSESSEE. THEREFORE, THE AS SESSING OFFICER AS WELL AS CIT(A) WAS NOT RIGHT IN DISALLOWING THE TD S CLAIM WHICH IS GENUINE AND VALID CLAIM OF THE ASSESSEE. HENCE, TH E APPEALS ARE ALLOWED. 8. IN RESULT, APPEALS ARE ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 18 TH OF NOVEMBER, 2016. SD/- SD/- (J. SUDHAKAR REDDY) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMB ER DATED: 18/11/2016 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 26/08/2016 PS 2. DRAFT PLACED BEFORE AUTHOR 26/08/2016 PS 7 ITA NOS. 1105 TO 1108/DEL/2014 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2016 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 29.11.2016 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 29.11.2016 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.