Ardor International Pvt.Ltd., Ahmedabad V. The ACIT.,Circle-1, Ahmedabad

ITA 1170/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1725 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 10-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 26-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH
• Assessee Lawyers: ANKIT M TALSANIA
• Keywords: Principle of natural justice
• Section: 143(3); 139(5); 263; 154; 139

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA NO. 1170/AHD/2013 / ASSESSMENT YEAR: 2008-09 ARDOR INTERNATIONAL PVT LTD, D,E & F ARDOR HOUSE, MONDEAL BUSINESS PARK, BESIDES GURUDWARA, SG HIGHWAY, AHMEDABAD-380015 PAN : AAECA 1210 B VS. ACIT, CIRCLE-1, AHMEDABAD [ / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI ANKIT M. TALSANIA, AR REVENUE BY : SHRI NARENDRA SINGH, SR. DR. ! '# / DATE OF HEARING : 10/03/2016 / DATE OF PRONOUNCEMENT: 02/05/2016 $%/ O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER: THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ORDER O F LD. COMMISSIONER INCOME-TAX (APPEALS)-6, AHMEDABAD DATED 06.02.2013 PASSED FOR TH E ASSESSMENT YEAR 2008-09. 2. THE GRIEVANCES OF THE ASSESSEE, AS PER GROUNDS OF APPEAL, ARE AS F OLLOWS :- 1 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN CO NFIRMING THE ACTION OF AO BY NOT GIVING CREDIT OF TDS OF RS.74,774/- WHILE PASSING THE ORDER U/S 154 OF THE INCOME TAX ACT, 1961. 2 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN RE FUSING THE TDS CREDIT PRIMARILY ON TECHNICAL CONSIDERATION U/S 155(14) WITHOUT CO NSIDERING GENERAL PROVISIONS OF SECTION 154, AND WITHOUT ENSURING SUBSTA NTIAL JUSTICE IN FAVOUR OF THE APPELLANT. 3 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS WHILE NO T CONSIDERING THE SETTLED LAW THAT APPROACH OF THE TAX AUTHORITIES SHOULD BE J USTICE ORIENTED SO AS TO ADVANCE CAUSE OF JUSTICE. ITA NO. 1170/AHD/2013 ARDOR INTERNATIONAL PVT LTD VS. ACIT AY : 2008-09 - 2 4 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS BY NO T APPRECIATING THE FACT THAT THE APPELLANT IS NOT BENEFITTED BY LODGING ITS CLA IM LATE. IT IS TO BE NOTED THAT THE DELAY IS NOT DELIBERATELY OCCASIONED OR ON ACCOUNT OF NEGLIGENCE; NOR THE APPELLANT STANDS TO BENEFIT BY RESORTING TO DELAY. 5 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS WHILE N OT CONSIDERING THAT GROSS REIMBURSEMENT OF EXPENSES AGGREGATING RS.9,89,426/ - HAVE BEEN CREDITED IN PROFIT AND LOSS ACCOUNT OF THE PREVIOUS YEAR, INCLU DED IN THE TOTAL INCOME AND OFFERED TO TAX AND TAXED IN THE ASSESSMENT ORDER UNDER SEC TION 143(3). HE FURTHER ERRED IN LAW AND ON FACTS WHILE NOT CONSIDERING THAT SECTI ON 199 MANDATES TDS CREDIT TO BE ALLOWED DURING THE PREVIOUS YEAR IN WHICH THE PA RENT INCOME IS CHARGEABLE TO TAX; AND THE TDS CREDIT OF THE SAID INCOME IS ALSO REFL ECTED IN 26AS. 6 BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS IN PASSING THE ORDERS WITHOUT PROPERLY APPRECIATING THE FACT AND THAT HE FURTHE R ERRED IN GROSSLY IGNORING VARIOUS SUBMISSIONS, EXPLANATIONS AND INFOR MATION SUBMITTED BY THE APPELLANT FROM TIME TO TIME WHICH OUGHT TO HAVE BEEN CON SIDERED BEFORE PASSING THE IMPUGNED ORDER. THIS ACTION OF BOTH THE AUTHORITIES IS IN CLEAR BREACH OF LAW AND PRINCIPLES OF NATURAL JUSTICE AND THEREFORE DESERVES TO BE QUASHED. 7. THEREFORE, IT IS SUBMITTED THAT RELIEF CLAIMED ABOVE B E ALLOWED AND REFUND OF RS.74,774/- BE GRANTED WITH INTEREST THEREUPON AS MAY BE T HOUGHT FIT BY YOUR HONOUR. 3. THE ASSESSEE HAS TAKEN SEVERAL GROUNDS IN ITS APPEAL B UT THE MAIN GRIEVANCE REVOLVES AROUND A SINGLE ISSUE, WHEREBY IT HAS CHALLENGED THE ACTION OF CIT(A) IN UPHOLDING THE REJECTION OF RECTIFICATIO N APPLICATION REGARDING THE CREDIT OF TDS OF RS.74,774/-. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A COMPANY, ENGAGED IN MARKETING OF GOODS. THE ASSESSEE FILED ITS RETURN ON 25.09.2008 DECLARING TOTAL INCOME OF RS.319.27 LACS. THE CASE WAS SELECTED FOR SCRUTIN Y ASSESSMENT AND THE ASSESSMENT ORDER U/S 143(3) WAS PASSED BY THE ASSESSING OF FICER ON 13.12.2010, DETERMINING TOTAL INCOME AT RS.337.07 LACS. IN THE RETURN O F INCOME FILED BY THE ASSESSEE, CREDIT FOR TDS OF RS.74,774/- MADE BY M/S. BODAL CH EMICALS LTD, WAS NOT CLAIMED AS FORM NO.16A WAS RECEIVED FROM M/S. BODAL CH EMICALS LTD ONLY DURING THE MONTH OF JANUARY, 2011. THEREAFTER, THE ASSESSEE FILED A RECTIFICATION APPLICATION U/S 154 OF THE ACT ON 03.02.2011, REQUESTING TO GIVE CREDIT U/S ITA NO. 1170/AHD/2013 ARDOR INTERNATIONAL PVT LTD VS. ACIT AY : 2008-09 - 3 155(14) OF THE ACT BY SUBMITTING TWO TDS CERTIFICATES IN RESPECT OF THE SAID AMOUNT. THE ASSESSING OFFICER REJECTED THE APPLICATION FOR RECTIFICATION ON THE GROUND THAT SECTION 155(14) WAS ATTRACTED ONLY IN CASES WHER E THE TDS WERE CLAIMED WITHOUT SUBMITTING TDS CERTIFICATES BUT NOT TO THOSE CASES IN WHICH NO CLAIM FOR TDS WAS MADE AT ALL. 5. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, T HE ASSESSEE WENT IN APPEAL BEFORE THE LD. CIT(A) WHO DISMISSED THE APPEAL O F THE ASSESSEE ON THE GROUND THAT THE ASSESSEE WAS NOT ABLE TO CONTROVERT THE OBSERVATIONS MADE BY THE ASSESSING OFFICER. 6. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSES SEE IS FURTHER IN APPEAL BEFORE US. 7. BEFORE US, THE LD. AUTHORIZED REPRESENTATIVE SUBMITT ED THAT THE RETURN OF INCOME WAS FILED DECLARING TOTAL INCOME OF RS.3,19,27,751/- AND THE ASSESSMENT ORDER U/S 143(3) WAS FRAMED ON 13/12/2010 DETERMINING TOTAL INC OME AT RS.3,37,08,007/-. THEREAFTER, THE APPELLANT RECEIVED TWO TDS CERT IFICATES GIVING CREDIT OF RS.74,774/- (RS.65,441/- + RS.9,333/-) ISSUED BY BODAL CHE MICALS LTD ON RECEIPT OF REIMBURSEMENT EXPENDITURE OF RS.5,77,594/- AND RS.4,11,832/ -. 7.1 THE LD. AUTHORIZED REPRESENTATIVE FURTHER SUBMITTED THAT THE APPELLANT- COMPANY HAD ALREADY SHOWN AN INCOME OF RS.5,77,594/- AND RS.4,11,832/- UNDER THE HEAD 'REIMBURSEMENT OF EXPENSES'. THE TOTAL AMOUNT OF REIMBURSEMENT OF EXPENSES OF RS.2,57,00,296/- WAS TRANSFERRED TO THE SALES ACCOUNT AT THE END OF THE YEAR. ATTENTION WAS FURTHER DRAWN TO T HE PROFIT & LOSS ACCOUNT ON PAGE NO. 16 OF PAPER-BOOK WHICH WOULD SHOW TH AT THE IMPUGNED INCOME IS FORMING PART OF SALES AND THE SAME HAS BEEN OFFERED T O TAX. 7.2 THE LD. AUTHORIZED REPRESENTATIVE ALSO SUBMITTED THAT SINC E THE APPELLANT WAS NOT IN POSSESSION OF THE IMPUGNED TDS CERTIFICATE S, THE APPELLANT DID NOT ITA NO. 1170/AHD/2013 ARDOR INTERNATIONAL PVT LTD VS. ACIT AY : 2008-09 - 4 CLAIM THE TDS CREDIT OF RS.74,774/- IN THE RETURN OF INCOM E, THOUGH THE CORRESPONDING INCOME OF RS.5,77,594/- AND RS.4,11,832/-WAS DULY SHO WN IN THE PROFIT & LOSS ACCOUNT. HE FURTHER SUBMITTED THAT THE APPELLANT RECEIVED THE IMPUGNED TDS CERTIFICATES FROM THE BODAL CHEMICALS LTD ONLY IN THE MONTH OF JANUARY, 2011 AND ACCORDINGLY THE APPELLANT FILED AN APPLICATION U/S 154 OF THE ACT ON 03.02.2011 (FURNISHED ON 04.02.2011) TO GRANT THE CREDIT O F TDS CERTIFICATES OF RS.74,774/- IN VIEW OF PROVISIONS OF SEC TION 155(14) OF THE ACT; HOWEVER, THE LD. ASSESSING OFFICER DID NOT GRANT THE TDS CREDIT OF RS.74,774/- ONLY ON THE GROUND THAT THE SAID TDS CREDIT OF RS.74,774/- WAS NOT CLAIMED IN THE RETURN OF INCOME. 7.3 THE LD. AUTHORIZED REPRESENTATIVE FURTHER SUBMITTED THAT IT IS AN ADMITTED FACTS THAT THE CORRESPONDING INCOME OF RS.5,77,594/ - AND RS 4,11,832/- IS SHOWN IN THE RETURN OF INCOME BY THE APPELLANT. HE CONTENDED THAT IN VIEW OF SECTION 155(14) OF THE ACT, WHERE THE TDS CERTIFICATE IS NOT FURNISHED WITH THE RETURN OF INCOME, AND IF THE SAME IS FURNISHED WITHIN 2 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR IN WHICH THE INCOME IS ASS ESSABLE, THE ASSESSING OFFICER SHALL GRANT TDS CREDIT TO THE ASSESSEE. THE O NLY CONDITION FOR THIS, HOWEVER, AS PER THE PROVISO TO SECTION 155(14) IS THAT THE INCOME FROM WHICH THE TAX HAS BEEN DEDUCTED MUST HAVE BEEN DISCLOSED IN THE RETURN FILED FOR THE RELEVANT YEAR. SO FAR AS REGARDS THE CONDITION LAID DOW N IN THE PROVISO TO SECTION 155(14), IT IS NOWHERE THE DEPARTMENT'S CASE THAT T HE ASSESSEE DID NOT, IN ITS RETURN OF INCOME, DISCLOSE THE INCOME FROM WHICH THE TAX HAD BEEN DEDUCTED. HE FURTHER PLEADED THAT, BESIDES THE ABOVE, S ECTION 199(3) OF THE ACT, AS SUBSTITUTED BY THE FINANCE ACT, 2008, W.E.F. 1ST APRIL, 2008 AND RULE 37BA HAS BEEN INSERTED BY THE INCOME-TAX (SIXTH AMENDMENT) RU LES, 2009, IN THE IT RULES, 1962, W.E.F. 1ST APRIL, 2009, WOULD CLEARLY PROVIDE THAT CRE DIT FOR TAX DEDUCTED AT SOURCE AND PAID TO THE CENTRAL GOVERNMENT SHALL BE GIVEN ON THE BASIS OF INFORMATION RELATING TO DEDUCTION OF TAX FURN ISHED BY THE DEDUCTOR TO ITA NO. 1170/AHD/2013 ARDOR INTERNATIONAL PVT LTD VS. ACIT AY : 2008-09 - 5 THE IT AUTHORITIES AND THE INFORMATION IN THE RETURN OF INCOME IN RESPECT OF THE CLAIM FOR THE CREDIT FOR THE ASSESSMENT YEAR FOR WHICH SUCH INC OME IS ASSESSABLE. 7.4 THE LD. AUTHORIZED REPRESENTATIVE HAS RELIED UPON THE DECISION OF KOLKATA TRIBUNAL IN THE CASE OF SANDERSANS & MORGANS VS. A CIT IN ITA NO.L520/KOL/2009, DATED 23/09/2015, WHEREIN ALSO, THE TDS CREDIT W AS DENIED ON THE GROUND OF NOT CLAIMING THE SAME IN THE RETUR N OF INCOME AND IT WAS SUBSEQUENTLY CLAIMED THROUGH APPLICATION BEING MADE U/S 154 READ WITH SECTION 155(14) OF THE ACT. THE TRIBUNAL AFTER CONSIDERI NG THE SCHEME OF THE ACT GRANTED THE TDS CREDIT TO THE ASSESSEE IN VIEW OF PR OVISIONS OF SECTION 155(14) OF THE ACT. HE FURTHER PLACED RELIANCE ON THE DECISION OF KARNATAKA HIGH COURT IN THE CASE OF CIT VS. DIGITAL GLOBAL SOFT LTD., REPO RTED IN 15 TAXMAMI.COM 78, WHEREIN THE ASSESSEE CAME INTO POSSESSION OF TDS CERT IFICATES, IT FILED AN APPLICATION UNDER SECTION 154 WITHIN TWO YEARS FROM DATE O F END OF ASSESSMENT YEAR CLAIMING SAID AMOUNT; AND THE ASSESSING OFFICER BEI NG FULLY SATISFIED ABOUT GENUINENESS OF CERTIFICATES AS SAID AMOUNT HAD BEEN PAI D TO GOVERNMENT, AND ASSESSEE WAS NOT LIABLE TO PAY ANY TAX, ORDERED REFUND AND THE SAID ACTION OF THE ASSESSING OFFICER WAS FOUND TO BE CORRECT AND THEREFO RE THE ACTION OF CIT IN APPLYING PROVISIONS OF SECTION 263 WAS REJECTED. 8. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE SUPPORTE D THE ORDERS OF THE LOWER AUTHORITIES. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MA TERIAL PLACED ON RECORD. THE ONLY ISSUE IN THIS APPEAL OF THE ASSESSEE IS AGAINST THE ACTION OF LD.CIT(A) IN CONFIRMING THE ORDER OF THE LD. ASSESSIN G OFFICER U/S 154 OF THE ACT, DENYING THE CREDIT OF TAX DEDUCTED AT SOURCE (TDS ) OF RS.74,774/-. FROM GOING THROUGH THE RECORDS, WE OBSERVE THAT THE ASSESSE E HAS NOT MADE ANY CLAIM OF TAX DEDUCTED AT SOURCE (TDS) OF RS.74,774/-, DEDUCTED BY DEDUCTOR M/S. BODAL CHEMICALS LIMITED ON RECEIPT OF REIMBURSEMENT EXPENDITURE. THE ITA NO. 1170/AHD/2013 ARDOR INTERNATIONAL PVT LTD VS. ACIT AY : 2008-09 - 6 IMPUGNED TDS CERTIFICATES WERE RECEIVED BY THE APPEL LANT IN THE MONTH OF JANUARY, 2011, I.E., ALMOST AFTER THE LAPSE OF TWO YEARS AND NINE M ONTHS FROM THE END OF THE FINANCIAL YEAR TO WHICH IT RELATED. THE APPEL LANT ON RECEIVING THE TDS CERTIFICATES OF RS.74,774/- IN JANUARY, 2011, HAD NO TIME LEFT F OR REVISING THE RETURN OF INCOME U/S 139(5) OF THE ACT AS TIME LIMIT FOR REVISING THE RETURN EXPIRES IN ONE YEAR FROM THE END OF THE RELEVANT ASSES SMENT YEAR, I.E., 31 ST MARCH 2010; AND THE ONLY OPTION LEFT WITH THE APPELLANT WAS TO FI LE AN APPLICATION U/S 154 OF THE ACT WHICH GIVES POWERS TO THE ASSESSING OFF ICER TO AMEND ANY INTIMATION OR DEEMED INTIMATION UNDER SUB-SECTION (1) OF SECTION 143 OF THE ACT WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEAR. IN THE CASE OF THE ASSESSEE, THE STATUTORY TIME LIMIT U/S 154 WAS GETTING LAPSED ON 31 ST MARCH 2011, AND JUST BEFORE THE LAPSE OF THE PERIOD U/S 154 OF THE ACT THE ASSESSEE MOVED AN APPLICATION U/S 154 OF THE ACT ON 03.02.2011. THE BASIC QUESTION AR ISING IN THE GIVEN FACTS AND CIRCUMSTANCES IS THAT WHETHER AN ASSESSEE WHO HAS NOT CLAIMED TDS WHILE FILING ITS RETURN OF INCOME, WHEN THE REQ UISITE INFORMATION/TDS CERTIFICATES WERE NOT IN ITS POSSESSION AND NEVERTH ELESS THE DEDUCTOR HAS NOT ISSUED TDS CERTIFICATES TILL THE TIME OF THE DUE DATE OF FILING THE RETURN OF INCOME, CAN THE ASSESSEE CLAIM TDS DEDUCTED ON THE INCO ME WHICH HAS BEEN SHOWN IN HIS RETURN OF INCOME (BUT THE DEDUCTOR HAS DEPOSITED THE TDS ON A LATER DATE; HOWEVER, VERY MUCH RELEVANT TO THE INCOME SH OWN BY THE ASSESSEE IN HIS RETURN OF INCOME) BY FILING AN APPLICATION U/S 154 OF THE ACT. THE ABOVE QUESTION HAS BEEN WELL ADDRESSED BY THE HONBLE KARNATAK A HIGH COURT IN THE CASE OF CIT VS. DIGITAL GLOBAL SOFT LIMITED, REPORTED I N 15 TAXMANN.COM 78, ON THE FOLLOWING FACTS:- FOR THE RELEVANT ASSESSMENT YEAR, THE ASSESSEE FILED RE TURN OF INCOME SHOWING CERTAIN INCOME. IT CLAIMED CREDIT FOR CERTAIN AMOUNT T OWARDS TAX DEDUCTED AT SOURCE. THE ASSESSING OFFICER PROCESSED THE RETURN UNDE R SECTION 143(1)(A). SUBSEQUENTLY, THE ASSESSEE FILED A LETTER POINTING OU T THAT AT THE TIME OF FILING THE RETURN, CREDIT FOR TDS AMOUNTING TO RS. 19,44,692 WAS NOT CL AIMED SINCE THE RELEVANT TDS CERTIFICATES WERE NOT AVAILABLE AND SINCE THOSE CERTIFICATES HAD BEEN RECEIVED SUBSEQUENTLY, IT WANTED CREDIT TO BE GIVEN TO T HE EXTENT OF RS. 19,44,692. THEREAFTER, THE ASSESSING OFFICER PASSED AN ORDER UNDER SECTION 154 RECTIFYING THE ITA NO. 1170/AHD/2013 ARDOR INTERNATIONAL PVT LTD VS. ACIT AY : 2008-09 - 7 INTIMATION AND GAVE CREDIT OF RS. 19,44,672 TOWARDS TAX DEDUCTE D AT SOURCE. THE COMMISSIONER, EXERCISING HIS POWER UNDER SECTION 263, FOU ND FAULT WITH GIVING CREDIT OF THE SAID AMOUNT AS TAX DEDUCTED AT SOURCE, WHEN THAT AMOUNT WAS NOT CLAIMED IN THE RETURNS FILED BY THE ASSESSEE. THEREFORE, IT MODIFIED THE ORDER UNDER SECTION 154 BY WITHDRAWING THE CREDIT GIVEN TO THE AMOUNT OF RS. 19,44,672. AGGRIEVED BY THE SAID ORDER, THE ASSESSEE PREFERRED AN APPE AL TO THE TRIBUNAL. THE TRIBUNAL HELD THAT THERE WAS NEITHER ANY ERROR IN THE ORDER SECTION 154 NOR ANY PREJUDICE CAUSED TO THE GOVERNMENT BY GIVING CREDIT FOR THE SAME. ACCORDINGLY, IT SET ASIDE THE ORDER OF THE COMMISSIONER UNDER SECTION 263. THE HONBLE KARNATAKA HIGH COURT, WHILE ADJUDICATING THE ISSUE ON THE ABOVE FACTS, HELD AS UNDER:- SECTION 139 DEALS WITH RETURN OF INCOME. SUB-SECTION (9) O F SECTION 139 SETS OUT UNDER WHAT CIRCUMSTANCES THE RETURN SO FILED IS DEFECTIVE . EXPLANATION TO THE SAID PROVISION MAKES IT CLEAR THAT THE TAX, IF ANY, CLAIMED TO HAVE BEEN DEDUCTED OR COLLECTED AT SOURCE AND THE ADVANCE TAX AND TAX ON SELF ASS ESSMENT, IF ANY, CLAIMED TO HAVE BEEN PAID HAS TO ACCOMPANY THE RETURN FIL ED UNDER SECTION 139. IF IT DOES NOT ACCOMPANY THE RETURN UNDER SECTION 139, THE RE TURN SO FILED SHALL BE REGARDED AS DEFECTIVE. IN OTHER WORDS, IN THE RETURN FILE D UNDER SECTION 139, IF THE ASSESSEE IS CLAIMING DEDUCTION OF THE TAX DEDUCTED AT SO URCE, THE SAID RETURN SHOULD ACCOMPANY THE PROOF OF SUCH TAX DEDUCTED AT SOURCE. H OWEVER, PROVISO TO SAID PROVISION MAKES IT CLEAR THAT IF THE PERSON WHO DEDUCT ED THE TAX HAS NOT FURNISHED THE CERTIFICATE TO THE ASSESSEE, THEN ONLY AFTE R SUCH VALID CLAIM IS MADE, THE AMOUNT DEDUCTED IS TREATED AS PAYMENT ON BEHALF OF PE RSON FROM WHOSE INCOME THE DEDUCTION WAS MADE AND CREDIT TO THE TAX IS GIVEN. IF ON ASSESSMENT OF THE SAID RETURN FILED, THE AMOUNT OF TAX PAID BY THE ASSE SSEE OR ON HIS BEHALF IS TREATED AS PAID BY HIM OR ON HIS BEHALF FOR ANY ASSESSMEN T YEAR AND IT EXCEEDS THE AMOUNT WITH WHICH HE IS PROPERLY CHARGEABLE UNDER THIS ACT FO R THAT YEAR, HE SHALL BE ENTITLED TO A REFUND OF THE EXCESS UNDER SECTIO N 237. ONCE AN ORDER IS PASSED BY THE ASSESSING AUTHORITY UNDER SECTION 143(1)(A) O R UNDER SECTION 143(3) OR UNDER SECTION 154, A POWER IS VESTED WITH THE SAID ASS ESSING AUTHORITY TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD IN THE S AID ORDER. IN ORDER TO RECTIFY THE SAID MISTAKE, HE CAN AMEND ANY ORDER PASSED BY HIM, UNDER THE PROVISION OF THE ACT OR AMEND ANY ORDER PASSED BY HIM, UNDER THE PROVISION OF THE ACT OR AMEND ANY INTIMATION OR DEEMED INTIMATION U NDER SUB-SECTION(L) OF SECTION 143. SUCH AN AMENDMENT CAN BE MADE ON ITS OWN MOTIO N OR WHEN THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR WHE RE THE AUTHORITY CONCERNED IS COMMISSIONER OF APPEALS, BY THE ASSESSING OFFICER ALSO. WHEN THE AMENDMENT IS MADE UNDER THE SECTION, AN ORDER SHALL BE PASSED IN WR ITING BY THE INCOME-TAX AUTHORITY CONCERNED, WHERE ANY SUCH AMENDMENT HAS EFFECT O F REDUCING THE ASSESSMENT, THE ASSESSING OFFICER SHALL MAKE ANY REFUN D WHICH MAY BE DUE TO SUCH ASSESSEE. SUCH AN ORDER OF AMENDMENT HAS TO BE PA SSED WITHIN A PERIOD OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE APPLICATI ON IS RECEIVED BY IT EITHER BY MAKING AMENDMENT OR REFUSING TO ALLOW THE CLA IM. IF ANY AMENDMENT ITA NO. 1170/AHD/2013 ARDOR INTERNATIONAL PVT LTD VS. ACIT AY : 2008-09 - 8 TO BE CARRIED OUT IS PREJUDICIAL TO THE INTEREST OF THE ASSESSEE, THEN THE ASSESSEE MUST BE HEARD. IF THE ORDER PASSED BY THE ASSESSING AUTHORIT Y IS MERGED WITH THE ORDER PASSED BY THE APPELLATE COMMISSIONER OR TRIBUNAL, THE ASSESSING AUTHORITY HAS NO JURISDICTION TO AMEND OR RECTIFY' THE MISTAKE IN SUCH ORDER. [P ARA 8] 10. FROM GOING THROUGH THE ABOVE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF DIGITAL GLOBAL SOFT LTD (SUPRA), WE FIND THAT IN THE PRESENT APPEAL BEFORE US THE ISSUE IS SIMILAR AS THE ASSESSEE HAS NOT CLAIMED TDS IN ITS REGULAR RETURN OF INCOME, BECAUSE IT WAS NOT IN THE POSSESSION OF THE TDS CERTIFICATES AND SO MUCH SO, THE DEDUCTOR M/S. BODAL CHEMICALS LIMI TED HAS NOT ISSUED THE TDS CERTIFICATES TO THE ASSESSEE. IT WAS ONLY IN JANUARY , 2011, I.E., AFTER THE END OF THE TWO YEARS AND NINE MONTHS FROM THE END OF THE RELEVANT FINANCIAL YEAR THAT THE ASSESSEE CAME INTO POSSESSION OF THE TDS CER TIFICATES ISSUED BY M/S. BODAL CHEMICALS LIMITED FOR RS.74,774/-. THE APPELLANT HAS SU BMITTED BEFORE THE ASSESSING OFFICER THAT THE AMOUNT ON WHICH TDS OF RS.74,774/- HAS BEEN DEDUCTED IS DULY SHOWN IN THE FINANCIAL STATEMENTS SU BMITTED BY IT AT THE TIME OF FILING OF RETURN OF INCOME. WE ARE, THEREFORE, OF TH E VIEW THAT THE ASSESSEE IS VERY MUCH ELIGIBLE FOR GETTING CREDIT OF RS.74,774/- AS TH E SAID AMOUNT WAS NOT A LAWFUL AMOUNT TO THE GOVERNMENT AND THE ASSESSEE SHO ULD NOT BE DEPRIVED OF THE CREDIT OF TDS OF RS.74,774/- FOR THE MISTAKE/DELAY MADE BY THE DEDUCTOR. IN THE GIVEN CIRCUMSTANCES, AS THE ASSESSEE WAS NOT HAVING ANY POSSI BILITY TO REVISE THE RETURN U/S 139(5) OF THE ACT, THE ONLY OPTION LEFT WITH HIM WAS TO FILE AN APPLICATION U/S 154 OF THE ACT WHICH HE DID SO; AND THEREF ORE, LD. ASSESSING OFFICER USING HIS INHERENT POWER U/S 154 OF THE ACT F OR AMENDING ANY MISTAKE APPARENT ON RECORD SHOULD HAVE EXAMINED THE CLAIM OF TH E ASSESSEE BY VERIFYING THE BOOKS OF ACCOUNTS OF THE ASSESSEE AS WE LL AS THE RELEVANT LEDGER ACCOUNTS WHEREIN THE IMPUGNED AMOUNT ON WHICH TDS OF RS.74,774/- HAS BEEN DEDUCTED, IS DULY REFLECTED. 11. WE ALSO OBSERVE THAT NONE APPEARED ON BEHALF OF THE ASSE SSEE DURING THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) AND WE ARE, T HEREFORE, OF THE VIEW THAT THE MATTER TO BE SET ASIDE TO THE FILE OF THE LD. ASSESSING OFFICER TO ALLOW THE ITA NO. 1170/AHD/2013 ARDOR INTERNATIONAL PVT LTD VS. ACIT AY : 2008-09 - 9 CLAIM OF TDS OF RS.74,774/- AFTER VERIFYING THE BOOKS OF ACC OUNTS AND FINANCIAL STATEMENTS WITH REGARD TO THE RECEIPT OF REIMBURSEME NT OF EXPENSES ON WHICH TDS OF RS.74,774/- HAS BEEN DEDUCTED BY M/S.BODAL CHEMICAL S LIMITED. NEEDLESS TO MENTION THAT NECESSARY OPPORTUNITY OF BEI NG HEARD TO BE GIVEN TO THE ASSESSEE TO PROVIDE ALL NECESSARY DOCUMENTS AND SUP PORTING TOWARDS THE CLAIM OF TDS OF RS.74,774/-. UNDER THESE CIRCUMSTANCES, T HE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 12. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED ABOVE. ORDER PRONOUNCED IN THE COURT ON 2 ND MAY, 2016 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER AHMEDABAD; DATED, 2/5/2016 **BT $% ! &''( )$(*'/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ++ ' ,' / CONCERNED CIT 4. ,' ) ( / THE CIT(A)- 5. (/0 &'& , , 123 /DR,ITAT, AHMEDABAD, 6. 045 6 / GUARD FILE. $% / BY ORDER, TRUE COPY +1 (ASSTT.REGISTRAR) ITAT, AHMEDABAD 1. DATE OF DICTATION 18.04.2016.. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : 18.04.2016 3. OTHER MEMBER .. 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S . 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT .. 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P.S./P.S . 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 2/5/2016 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER