Sandersons & Morgans, Kolkata V. ACIT, Circle - 54, Kolkata, Kolkata

ITA 1520/KOL/2009

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99803 (ITAT-KOLKATA)
• Duration Of Justice: 6 year(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 10-05-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 28-08-2009
• Court: TRIBUNAL
• Department Lawyers: D BANERJEE
• Assessee Lawyers: J P KHAITAN; S BASU
• Section: 143(3); 154; 15; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C , KOLKATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI M.BALAGANESH, AM ] ITA NO. 1520 /KOL/2 009 ASSESSMENT YEAR : 2004 - 05 ( A PPELLANT ) (RESPONDENT) SANDERSANS & MORGANS - VERSUS - A.C.I .T., CIRCLE - 54, KOLKATA KOLKATA (PAN: ABBFS 4291 B) FOR THE APPELLANT : SHRI J.P.KHAITAN & SHRI S.BASU, ADVOCATE FOR THE RESPONDENT : SHRI D.BANERJEE, JCIT DATE OF HEARING : 21 .09 .2015. DATE OF PRONOUNCEMENT : 23.09.2015 ORDER PER SHRI M.BALAGANESH, AM 1. THIS APPEAL OF THE REVENUE ARISES OUT OF THE ORDER OF THE LEARNED CITA IN APPEAL NO. 85 /CIT(A) - XX XVII / ACIT - 54/08 - 09 . DATED 18.03.2009 F OR THE ASST YEAR 2004 - 05 ARISING OUT OF THE ORDER OF THE LEARNED ASSESSING OFFICER FRAMED U/S 143(3) OF THE I NCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ). 2. SHRI.J.P.KHAITAN, SENIOR ADVOCATE, THE LEARNED AR ARGUED ON BEHALF OF THE ASSESSEE AND SHRI.D.BANERJEE, JCIT, THE LEARNED DR ARGUED ON BEHALF OF THE REVENUE. 3. THE ASSESSEE IS A PARTNERSH IP FIRM ENGAGED IN THE PROFESSION OF ADVOCATES AND SOLICITORS. FOR THE ASST YEAR 2004 - 05, THE ASSESSEE FIRM FILED ITS RETURN OF INCOME SHOWING TOTAL INCOME OF RS. 42,73,610/ - CLAIMING TDS TO THE TUNE OF RS. 14,98,887/ - . OUT OF THE SAID TDS, CERTIFICATES WERE PRODUCED BEFORE THE LEARNED AO TO THE TUNE OF RS. 12,56,396/ - BEFORE THE COMPLETION OF ASSESSMENT PROCEEDINGS U/S 143(3) OF THE ACT ON 11.12.2006. THIS TDS OF RS. 12,56,396/ - ADMITTEDLY INCLUDED TDS ON ADVANCE RECEIVED, INCOME IN RESPECTOF SUCH ADVAN CES WERE OFFERED TO TAX IN THE SUBSEQUENT YEAR BY THE ASSESSEE IN LINE WITH THE METHOD OF ACCOUNTING REGULARLY EMPLOYED BY THE ASSESSEE. ACCORDINGLY, THE LEARNED AO GRANTED TDS OF RS. 9,60,694/ - AGAINST THE CERTIFICATES PRODUCED IN THE ASSESSMENT AND THERE BY NOT GIVING CREDIT FOR TDS TO THE ITA NO. 1520/KOL/2009 SANDERSANS & MORGANS A.YR. 2004 - 05 2 TUNE OF RS. 5,38,193 ( 14988 87 - 960694) IN THE ASSESSMENT. LATER THE ASSESSEE FIRM FILED A RECTIFICATION PETITION U/S 154 OF THE ACT ON 28.5.2008 BEFORE THE LEARNED AO ENCLOSING THE TDS CERTIFICATE FOR RS. 1,01,090/ - S EEKING CREDIT FOR TDS TO THE TUNE OF RS. 1,01,090/ - BASED ON THE PHYSICAL TDS CERTIFICATES PRODUCED. THE LEARNED AO REJECTED THE SAME BY QUOTING THE PROVISIONS OF SECTION 155(14) OF THE ACT WHEREIN THE TDS CERTIFICATES NOT SUBMITTED ALONG WITH THE RETUR N OF INCOME IS TO BE SUBMITTED WITHIN TWO YEARS FROM THE END OF THE ASSESSMENT YEAR IN WHICH INCOME WAS ASSESSABLE. THIS ACTION OF THE LEARNED AO U/S 154 OF THE ACT WAS UPHELD BY THE LEARNED CIT ( A ) BY MAKING THE FOLLOWING OBSERVATIONS : - THE APPELLANT F ILED A PETITION U/S 154 ALONG WITH THE TDS CERTIFICATES. THE APPELLANT PRAYED FOR CREDIT FOR TAX DEDUCTED AT SOURCE. THE AO NOTICED THAT THE APPELLANT HAS NOT MADE THE CLAIM FOR THE TAX DEDUCTED AT SOURCE IN THE RETURN OF INCOME FILED. HENCE THE AO REJECTE D THE APPELLANT S PETITION. SINCE THE APPELLANT HAS NOT FILED THE TDS CERTIFICATES AND CLAIMED CREDIT IN THE RETURN OF INCOME FILED, THERE IS NO MISTAKE APPARENT FROM RECORD AMENABLE FOR RECTIFICATION U/S 154. THE AO IS CORRECT AS PER LAW IN REJECTING THE APPELLANT S PETITION. THE AO S ACTION IS UPHELD. 3.1. THE LEARNED AR ARGUED THAT THE FINDING GIVEN BY THE LEARNED CIT ( A ) THAT THE ASSESSEE HAD NOT CLAIMED THE TDS IN THE RETURN FILED IS FACTUALLY INCORRECT. AS COULD BE SEEN FROM THE STATEMENT OF FACTS FILED BEFORE THE LEARNED CIT ( A ) AND BEFORE US AND IN THE IT RETURN ACKNOWLEDGEMENT, THE ASSESSEE HAD CLEARLY STATED THAT A SUM OF RS. 14,98,887/ - TOWARDS TDS WAS CLAIMED IN THE RETURN BY THE ASSESSEE. HE FURTHER ARGUED THAT THE TDS CERTIFICATE FOR RS. 1,0 1,090/ - WAS DULY FURNISHED TO THE LEARNED AO BY THE ASSESSEE BY WAY OF AN INDEPEND ENT LETTER DT 28.5.2008 FILED ON 30.5.2008 WHICH IS ENCLOSED IN PAGE 42 OF THE PAPER BOOK FILED BY THE LEARNED AR. HE ARGUED THE PROVISIONS OF SECTION 199(3) OF THE ACT READ TOGETHER WITH RULE 37BA OF INCOME TAX RULES AND STATED THAT THE SAME ARE ONLY PROCEDURAL IN NATURE AND WOULD ACCORDINGLY APPLY TO PENDING CASES ALSO. HE ARGUED THAT BASED ON THE ABOVE PROVISIONS IT IS FOR THE LEARNED AO TO HAVE VERIFIED THE FACT OF DEDUC TION OF TAX AT SOURCE AND REMITTANCE OF TDS MADE THEREON TO THE ACCOUNT OF CENTRAL GOVERNMENT FROM THE SIDE OF THE DEDUCTOR. HE FURTHER PLACED RELIANCE ON THE FOLLOWING DECISIONS IN SUPPORT OF HIS CONTENTIONS: - ESCORTS LTD VS DCIT REPORTED IN (2007) 15 SO T 368 (DELHI ITAT) ITA NO. 1520/KOL/2009 SANDERSANS & MORGANS A.YR. 2004 - 05 3 ALIPURDUAR TEA CO. LTD VS AGRICULTURAL ITO REPORTED IN 112 ITR 878 (CAL) CWT VS SHARVAN KUMAR SWARUP AND SONS REPORTED IN 210 ITR 886 (SC) IN RESPONSE TO THIS, THE LEARNED DR VEHEMENTLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 3.2. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE PROVISIONS OF SECTION 199(3) OF THE ACT READ WITH RULE 37BA OF INCOME TAX RULES WOULD SQUARELY APPLY IN THE FACTS OF THE INSTANT CASE. FOR THE SAKE OF CONVENIENCE, THE PROVISIONS OF SECTION 199(3) ARE REPRODUCED BELOW: - SECTION 199(3) THE BOARD MAY, FOR THE PURPOSES OF GIVING CREDIT IN RESPECT OF TAX DEDUCTED OR TAX PAID IN TERMS OF THE PROVISIONS OF THIS CHAPTER, MAKE SUCH RULES AS MAY BE NECESSA RY , INCLUDING THE RULES FOR THE PURPOSES OF GIVING CREDIT TO A PERSON OTHER THAN THOSE REFERRED TO IN SUB - SECTION (1) AND SUB - SECTION (2) AND ALSO THE ASSESSMENT YEAR FOR WHICH SUCH CREDIT MAY BE GIVEN. FOR THE SAKE OF CONVENIENCE, THE SAID RULE 37BA IS REPRODUCED HEREUNDER: - RULE 37BA CREDIT FOR TAX DEDUCTED AT SOURCE FOR THE PURPOSES OF SECTION 199 (4) CREDIT FOR TAX DEDUCTED AT SOURCE AND PAID TO THE ACCOUNT OF THE CENTRAL GOVERNMENT SHALL BE GRANTED ON THE BASIS OF - ( I ) THE INFORMATION RELATING T O DEDUCTION OF TAX FURNISHED BY THE DEDUCTOR TO THE INCOME TAX AUTHORITY OR THE PERSON AUTHORIZED BY SUCH AUTHORITY ; AND (II) THE INFORMATION IN THE RETURN OF INCOME IN RESPECT OF THE CLAIM FOR THE CREDIT, SUBJECT TO THE VERIFICATION IN ACCORDANCE WITH THE RISK MANAGEMENT STRATEGY FORMULATED BY THE BOARD FROM TIME TO TIME. WE ALSO FIND THAT THE AFORESAID RULE THOUGH INTRODUCED ONLY WITH EFFECT FROM 1.4.2009 WOULD HAVE TO BE CONSTRUED ONLY AS PROCEDURAL IN NATURE AND HENCE SHOULD APPLY TO ALL PEN DING PROCEEDINGS. WE FIND THAT THE CASE LAW RELIED UPON BY THE LEARNED AR IN THE CASE OF CWT VS SHARVAN KUMAR SWARUP AND SONS REPORTED IN 210 ITR 886 (SC) IS WELL PLACED, WHEREIN IT WAS HELD THAT : - ITA NO. 1520/KOL/2009 SANDERSANS & MORGANS A.YR. 2004 - 05 4 SUBSTANTIVE LAW IS CONCERNED WITH THE ENDS WHICH THE ADMINISTRATION OF JUSTICE SEEKS ; PROCEDURAL LAW DEALS WITH THE MEANS AND INSTRUMENTS BY WHICH THOSE ENDS ARE TO BE ATTAINED. THE LATTER REGULATES THE CONDUCT AND RELATIONS OF COURTS AND LITIGANTS IN RESPECT OF THE LITIGATION ITSELF; THE FORMER DETERMINES THEIR CONDUCT AND RELATIONS IN RESPECT OF THE MATTERS LITIGATED. WHAT FACTS CONSTITUTE A WRONG IS DETERMINED BY THE SUBSTANTIVE LAW ; WHAT FACTS CONSTITUTE PROOF OF A WRONG IS A QUESTION OF PROCEDURE. SO FAR AS THE ADMINISTRATION OF JUSTICE IS CONCERNE D WITH THE APPLICATION OF REMEDIES TO VIOLATED RIGHTS, WE MAY SAY THAT THE SUBSTANTIVE LAW DEFINES THE REMEDY AND THE RIGHT, WHILE THE LAW OF PROCEDURE DEFINES THE MODES AND CONDITIONS OF THE APPLICATION OF THE ONE TO THE OTHER. IN IZHAR AHMAD KHAN VS UNI ON OF INDIA , AIR 1962 SC 1052 (1962) SUPPL. 3 SCR 235 AT 251, IT IS OBSERVED (AT PAGE 1059 OF AIR 1962 SC): THE DIVISION OF LAW INTO TWO BROAD CATEGORIES OF SUBSTANTIVE LAW AND PROCEDURAL LAW IS WELL - KNOWN. BROADLY STATED, WHEREAS SUBSTANTIVE LAW DEFIN ES AND PROVIDES FOR RIGHTS, DUTIES AND LIABILITIES, IT IS THE FUNCTION OF THE PROCEDURAL LAW TO DEAL WITH THE APPLICATION OF SUBSTANTIVE LAW TO PARTICULAR CASES AND IT GOES WITHOUT SAYING THAT THE LAW OF EVIDENCE IS A PART OF THE LAW OF PROCEDURE. PROCEDU RAL LAW, GENERALLY SPEAKING, IS APPLICABLE TO PENDING CASES. NO SUITOR CAN BE SAID TO HAVE A VESTED RIGHT IN PROCEDURE. BENNION S STATUTORY INTERPRETATION (FIRST EDITION, PAGE 446, PARAGRAPH 191) LAYS DOWN AS FOLLOWS: BECAUSE A CHANGE MADE BY THE LEGIS LATOR IN PROCEDURAL PROVISIONS IS EXPECTED TO BE FOR THE GENERAL BENEFIT OF LITIGANTS AND OTHERS, IT IS PRESUMED THAT IT APPLIES TO PENDING AS WELL AS FUTURE PROCEEDINGS. WE ALSO FIND THAT THE CASE LAW RELIED UPON BY THE LEARNED AR IN THE CASE OF ALIPURD UAR TEA CO. LTD VS AGRICULTURAL ITO REPORTED IN 112 ITR 878 (CAL) IS WELL PLACED , WHEREIN IT WAS HELD THAT : HELD, THAT THERE IS A LACUNA IN THE ACT IN THAT THERE IS NO POWER IN THE AGRICULTURAL INCOME - TAX OFFICER TO REVISE HIS OWN ORDER WHERE THE APPEL LATE ORDER INCOME - TAX ASSESSMENT IS MADE MORE THAN FOUR YEARS AFTER THE DATE OF THE ORIGINAL ASSESSMENT. NO TAX WHICH IS NOT LEVIABLE BY THE AUTHORITY OF LAW SHOULD BE COLLECTED OR REALIZED BY THE STATE AND, IF REALIZED BY THE STATE, SHOULD BE REFUNDED BY THE STATE. THE SCHEME OF FISCAL STATUTES SHOULD BE LOOKED AT FROM THAT POINT OF VIEW AND, IN CASE OF INJUSTICE, THE COURT SHOULD ENSURE THAT SUCH INJUSTICE IS RECTIFIED AS FAR AS PRACTICABLE UNLESS THE SAME IS CONTRARY TO THE EXPRESSED LEGISLATIVE INTENT. THE LEGISLATIVE INTENT MANIFESTED IN THE SCHEME OF THE ACT IS THAT THE TAX FOR AGRICULTURAL INCOME SHOULD BE COMPUTED ON THE BASIS OF THE INCOME COMPUTED UNDER THE INCOME - TAX ACT. THOUGH THERE IS NO MACHINERY PROVIDING FOR RECTIFICATION OF THE ORDER UNDER THE ACT AFTER THE APPELLATE OR REVISIONAL AUTHORITY HAS PASSED ORDER UNDER THE INCOME - TAX ACT, THE PROVISIONS SHOULD BE READ ITA NO. 1520/KOL/2009 SANDERSANS & MORGANS A.YR. 2004 - 05 5 ATTRIBUTING ANCILLARY AND INCIDENTAL POWERS TO THE AUTHORITIES CONCERNED TO IMPLEMENT AND CARRY INTO EFFECT THE MAJOR LEGISLATIVE I NTENT. IN SUCH A SITUATION, WHEN MANIFEST INJUSTICE IS BEING DONE TO THE TAXPAYER AND WHERE THE LEGISLATIVE INTENT OF TAXING AGRICULTURAL INCOME ON THE BASIS OF THE COMPUTATION MADE UNDER THE INCOME - TAX ACT IS BEING DEFEATED, IT WOULD BE PROPER TO READ THA T THE COMMISSIONER HAS INHERENT POWER TO DIRECT THE AGRICULTURAL INCOME - TAX OFFICER TO TAKE INTO CONSIDERATION THE ORDER PASSED BY THE APPELLATE ASSISTANT COMMISSIONER OF INCOME - TAX, FOR COMPUTATION OF AGRICULTURAL INCOME - TAX. THE COMMISSIONER OF AGRICULTU RAL INCOME - TAX SHOULD, THEREFORE, USE HIS REVISIONAL POWER AND DISPOSE OF THE PENDING APPLICATION BEFORE HIM BY DIRECTING THE AGRICULTURAL INCOME - TAX OFFICER TO RECOMPUTE THE AGRICULTURAL INCOME - TAX PAYABLE FOR THE TWO YEARS IN QUESTION ON THE BASIS OF THE ORDER PASSED BY THE APPELLATE ASSISTANT COMMISSI ONER OF INCOME - TAX FOR THE SAID TWO YEARS. WE ALSO FIND THAT THE CASE LAW RELIED UPON BY THE LEARNED AR IN THE CASE OF ESCORTS LTD VS DCIT REPORTED IN (2007) 15 SOT 368 (DELHI ITAT) IS WELL PLACED , WHEREI N IT WAS HELD THAT : 6. THE SCHEME FOR GIVING CREDIT F O R TDS WAS SOUGH T TO BE M ODI FIED T HROUGH CLAUSES 56 AND 59 OF THE FINANCE BILL , 200 2 A ND THE SAM E HAVE ALSO BEE N E XPLAINED IN THE MEMORANDUM EXPLAINING THE PR OV ISIONS OF THE FINAN CE BILL TO ST A TE TH A T: 'UNDER THE EXISTING PROVISIO NS O F S E C TION 199 O F THE INCOME - TAX ACT , A N Y DEDUC T I O N MADE IN ACCORDANCE WITH TH E PRO V ISION S OF SE C TIO NS 19 2 TO 1 9 4, 1 9 4A, 194B, 1 9 4 BB , 194C, 194D, 194E , 194EE, , 1 9I FF , 194G, 194H , 194 - 1, 194 J , 194K , 1 94L, 195, 19 6 A, 196B, 196 C AND 196D AND ' PA I D TO TH E A C COUN T O F CENTRAL G O VERNMENT IS TREATED AS A PAYMENT OF TAX ON BEHALF OF THE P ER SON F R OM WH O SE INCOME THE D ED UCTION WAS . MA D E OR THE OWNER OF THE SECURIT Y OR D E PO S ITOR O R OW N ER OF THE PRO P ERT Y O R OF U N I T - HOLDE R OR OF THE SHAREH OLDER, AS TIL E CA S E MAY BE A ND CREDIT GIVEN TO SUC H PE R SON FOR T H E AMOUNTS SO DEDUCTED ON THE PRODUCTION OF A CERT I F I CATE FURNISHED UNDE R SECTION 2 0 3 IN THE ASSESSMENT MADE UND ER THI S ACT FOR THE ASSE S SME N T Y E A R FOR WHICH S UC H INCOME IS ASSESSABLE. HARDSH IP IS B E ING FA CE D B Y THE ASSE SS EE SINCE IN MANY CASE S C E RTIFICATES UNDER SECTION 20 3 ARE NOT FURNISHED TO THEM AND AS A RESU L T CREDIT IS NO T G IVEN FOR T HE TAX SO DEDUCT E D . W I T H A V I EW TO M I T IG ATE THIS HARDSHIP , IT IS PROPOS ED TO INSERT A NEW SUB - SECTION ( 14 ) IN SECT ION 15 5 TO P R O V I DE THAT WHER E IN THE ASS E S SMENT FOR ANY PREVIOUS Y EA R O R IN ANY I NT I M A TIO N OR DEE M ED INTIMATION U N DER SUB - SECTI O N (1) OF SECTION 143 F O R AN Y PR EV IOUS Y EAR , CRE DIT FO R T AX DED U CTED I N A C CORDANC E WITH THE P R OVI S I ONS OF SECTI O N 199 HAS NOT B E EN GIVEN ON THE GR O UND TH AT THE C ER TIFICATE FURNI SHE D UNDER SECTION 203 W AS NOT F ILED WITH TH E RET U RN AND S UB SE QU ENTL Y SUCH CE RT I F I C A T E IS PRODUCED BEFORE THE ASS E SSING OFFIC E R WI THI N TWO YEA R S FROM THE END OF TH E AS SESSMENT YEAR IN WHICH SUCH I NCOM E IS ASSES SA BL E, CRE D IT OF TDS SHALL B E GIVE N TO TH E ASSE SS EE O N PRODUCTION OF SUCH CERTIFICA TE. NOTHING CONTAI NE D IN THE PR O POS ED SUB - SECTION SHALL APPLY UNLESS THE INCOME FROM W HICH TAX HAS B EEN DEDUCTED H AS B E E N D I SC LOSED IN THE RETURN OF I NCOM E FIL ED B Y TH E ASS E SSEE F OR THAT ASSESSMENT Y EAR. THE PROPOSED AM E NDMEN T SHALL E N A BL E TH E A SSESSING OFF IC ER TO RECTIFY THE ORDER O F ASSESSMENT OR AN Y INTIMA T IO N OR D EEME D I N TI MATION UNDER SUB - SECTION (1) O F SECTION 143. ITA NO. 1520/KOL/2009 SANDERSANS & MORGANS A.YR. 2004 - 05 6 AS A CONSEQU E NC E , IT IS ALSO PROPO SE D TO AM EN D SUB - SECT I ON (9 ) OF SECT . ION 13 9 TO PROVIDE THAT WHERE THE RETUR N IS NOT ACC OMPA NIE D BY PROOF OF TH E TAX , IF AN Y, CLAIMED TO HAVE BEEN DEDUCTED AT S O UR CE, T H E RETUR N OF INCOME S H ALL N O T B E REGARDED AS DEFECTIVE IF SUCH CERTIFICAT E W AS NOT FURNISH E D U N DER SE CT I O N 203 TO THE P ER SO N FURNISHED HIS RETURN OF INCOME A ND SUCH P ERS O N PRO D UCE S T H E C ERTIFICATE WI THIN A . PERIOD OF TWO Y EARS SPECIFIED UND E R SUB - SECTIO N ( 1 4) OF SECT I ON 155 . THE PROPOSED AMENDMENT WIL L TAK E E FF E CT F RO M IST JUNE, 2002.' 7. AS PE R OUR CONSIDERED VIEW , CR E DIT F O R TDS MUS T IN E VERY CASE BE G IV EN T O TH E A SSESSE E F ROM WHOSE INCOME TAX WAS DEDUCT E D A T SOURC E A N D PAID TO THE CR E DIT OF THE CENTRAL GOVERNMENT . IF THE RECIPIENT O F T HE I N COME CON S ID ERS T H AT HE IS N OT LIABLE TO TAX IN RESPEC T OF THE INCOME, WHOLL Y OR PAR T L Y, THEREFOR E, DO ES N OT DIS C L OSE T H E AMOUNT OF S U CH INCOME IN HIS RETURN, THE INCOM E - TA X DEPARTMENT CAN NOT REFUSE TO GIV E C R E DIT MERELY BY CONTENDING THAT THE INCOME HAD NOT BEEN DISCLOSED IN THE RETURN F I L E D B Y THE ASSESSE E FOR THE ASSESSMENT Y EAR . THE ASS E SS EE M AY AS PE R R E L EVANT PROVISIO N S OF INCOME - TAX ACT , CONSIDER THE INCOME EITHER AS NOT TAXABLE IN HI S HAN D S OR AS B E ING R E LATA B LE T O A DIFFERENT ASSESSMENT YEAR AND H E MA Y E VEN CLAI M SET OFF OF L OSS OR OTHER DE DUC TI ON S A GAINST SUCH INCOME. THE ASSESS E E MA Y AL S O B E N O T CHARGEABLE TO TAX ON THE INCOM E BECAUSE OF THE O V ERRIDING PRO V I S ION S OF DOUBLE T AXATION AVOIDANC E A G REEMENT AND/ OR BECAUSE O F THE P R O V ISION FOR E X E M PTION OF SUCH IN C O ME, WHETHER WH O LL Y O R PARTLY, UN D ER S OME PRO V ISION S OF THE INCOM E - TAX A CT . IT WO UL D BE, THEREF O RE, I M P R OPER A ND EVEN IMPERMISSIBLE FO R THE REVENUE T O SW ALLO W T HE AM OUNT OF TDS AFTER H AVI N G R ECEIVED AND E NJO Y ED THE SAME. IT CANNOT B E IGNO RE D TH AT EVER Y ITEM OF TD S C ARRI E S WITH IT AN OBLIGATION OF TRUST AND ACCOUNTABILI TY T O R ETURN T H E AMOUNT AND/ O R G IV E C REDIT FOR T H E AMOUNT SO DEDUCTED DEPENDING UPON T H E TAX LIABILIT Y OF THE REC I P I E N T T O B E DETERM IN ED IN THE COURSE OF HIS ASS E SSM E NT . IF A W RONG ASS ES SM ENT IS MA D E FO R W H A TEVER REAS O NS, THE DEPART MENT HAS ALL THE PO WE R S TO RECTIF Y THE SAME B Y RESO R T TO R E CTIFICATION OF MISTAKES, REVISION AND / OR OT HER P R O C EEDINGS, LEGALLY AVAILA B LE U NDE R THE S TATUTE. ASSESSEE'S INCOME FOR WHICH TA X IS D E DUCTED AT SO U RCE SHOU L D NOT BE RE FUSED TO B E GIVEN CREDIT . BEIN G A CASE OF DIRECT T AX, TH E R E I S ALSO NO QU E STION OF UNJU ST E NRI C HM E NT BE I NG CLAIMED SO AS TO TAKE THE CREDIT OF T A X WITHOUT AN O BLIGATION TO RETU R N TH E SAME TO THE ASSESSEE. THE PAYER DOES NOT PA Y THE AMOUNT OF TDS AS HIS OW N LIABILITY AND HE ONL Y ACTS A S THE AGENT OF THE GOVERNMENT OR AS TRU STEE TO COLL ECT THE T DS FO R TH E GOVERNMENT, FREE OF COST. IF NO C REDIT IS TO BE GIV E N T O THE P AYER A N D / OR TO THE PAY E E , TH E GOVERNMENT WOULD HAVE NO AUTHORIT Y TO TREAT TH E SAME AS TAX AND A RTICL E 265 D O ES NOT EMPOWER THE GOVERNMENT TO MAKE ANY LEVY OR COLL ECT I O N OF TAX NOT AUTHORIZE D BY LA W. THERE MAY BE CASES IN WHICH TH E ASSESSEE IS NOT IN A POSI TI ON TO HAVE THE RE CO R D S AN D MAKE COMPLETE CLAIM OF CREDIT FOR TDS DUE T O MANY FAC T ORS B EYOND HIS CONTR O L , THEREFORE, PROV ISIONS RELATING TO T IME - LIMIT FOR CL A IMING CRED I T OF T DS S HOUL D AL S O BE LIBERALLY CONSTRUED. IF THE TAX DUE TO THE GOVERNM ENT IS NO T . BAR RE D BY LIMITA T ION FOR COLLECTION OR RECOVERY , THE REFUND OF TDS DUE T O T H E ASSESSEE SHOU LD N OT B E E QUAL L Y HIT BY ANY BA R OF LIMITATION NOR S H OU LD TH ERE B E A NY FET T ER ON THE AS S ES S EE T O CLAIM C REDIT FOR TDS AT AN Y TIME. WE ALSO FIND THAT THE INCOME ATTRIBUTABLE TO THE TDS UNDER DISPUTE BEFORE US HAS BEEN DULY OFFERED TO TAX BY THE ASSESSEE AND HENCE IN THE INTEREST OF JU STICE , THE ASSESSEE ITA NO. 1520/KOL/2009 SANDERSANS & MORGANS A.YR. 2004 - 05 7 SHOULD BE GIVEN DUE CREDIT FOR TDS THEREON MORE SO WHEN THE CERTIFICATE FOR THE SAME HAS BEEN FILED BY THE ASSESEE BEFORE THE LEARNED AO ON 30.5.2008. IN VIEW OF THE AFORESAID FACTS AND CIRCUMSTANCES AND RESPECTFULLY FOLLOWING THE JUDICIAL PRECEDENTS RELIED UPON HEREINABOVE, WE DIRECT THE LEARNED AO TO GRANT CREDIT FOR TDS AMOUNTING TO RS. 1,01,090/ - TO THE ASSESSEE. THE GROUNDS RAISED BY THE ASSESSEE IN THIS REGARD ARE ALLOWED. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED. ORDER PRONOUNC ED IN TH E COURT ON 2 3.09.2015. SD/ - SD/ - [MAHAVIR SINGH] [M.BALAG ANESH] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE : . 23.09.2015. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO : 1 . SANDERSONS & M ORGANS, ROYAL INSURANCE BLDG., 5, NETAJI SUBHAS ROAD, KOLKATA - 7000001. 2 THE A.C.I.T., CIRCLE - 54 , KOLKATA. 3 . THE CIT - XIX , KOLKATA , 4. THE CIT(A) - XX XVII , KOLKATA. 5 . DR, KOLKATA BENCHES, KOLKATA TRUE COPY , BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES