ACIT, New Delhi V. Pernod Ricard (India) Pvt. Ltd., Gurgaon

ITA 2113/DEL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3593 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 07-07-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 06-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Keywords: Revised return; TDS
• Section: 143(3); 143(1); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `F : NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER I.T.A.NO.2113/DEL/2010 ASSESSMENT YEAR : 2003-04 ASSTT. COMMISSIONER OF INCOME-TAX, PERNOD RICARD ( INDIA) PVT. LTD., CIRCLE 14(1), NEW DELHI. VS. 5 TH FLOOR, TOWER-A, GLOBAL BUSINESS PARK, MEHRAULI, GURGAON ROAD, GURGAON. PAN: AAACS4781P (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI H.K. LAL, SR. DR. RESPONDENT BY : SHRI DEE PAK CHOPRA. O R D E R PER C.L. SETHI, JUDICIAL MEMBER. THE ONLY GROUND RAISED BY THE REVENUE IN THIS APPEA L FILED AGAINST THE ORDER DATED 26.02.2010 PASSED BY THE LEARNED COMMIS SIONER OF INCOME-TAX (APPEALS) IN THE MATTER OF ASSESSING OFFICERS ORDE R PASSED UNDER SECTION 154 OF THE INCOME-TAX ACT, 1961 (THE ACT) FOR THE A SSESSMENT YEAR 2003-04, IS AS UNDER:- THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW THE LD. CIT(A) ERRED IN DIRECTING THE AO TO ALLOW CREDI T OF TDS 2 WITHOUT PROPERLY APPRECIATING THE FACT THAT THE ASS ESSEES APPLICATION UNDER SECTION 154 OF THE INCOME TAX ACT , 1961 WAS BARRED BY LIMITATIONS. 2. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY PER USED THE ORDERS OF THE AUTHORITIES BELOW. 3. THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF BLENDING, BOTTLING AND TRADING OF INDIAN MADE LIQUOR. FOR THE YEAR UN DER CONSIDERATION, THE ASSESSEE FILED ORIGINAL RETURN OF INCOME ON 2.12.20 03 DECLARING TOTAL INCOME AT RS.37,88,59,680/-. THEREAFTER, A REVISED RETURN DECLARING TOTAL INCOME AT RS.38,19,46,910/- WAS FILED BY THE ASSESSEE ON 29.0 3.2004. IN THE RETURN THE ASSESSEE CLAIMED TAX CREDIT TO THE EXTENT OF RS.3,9 9,68,263/- IN RESPECT OF TAX DEDUCTED AT SOURCE ON DOMESTIC INCOME AND RS.25,71, 264/- IN RESPECT OF TAX DEDUCTED AT SOURCE ON FOREIGN INCOME. THE ASSESSEE ENCLOSED THE ORIGINAL COPIES OF TDS CERTIFICATE OF RS.3,81,78,589/- IN RE SPECT OF DOMESTIC INCOME AND RS.25,71,264/- IN RESPECT OF FOREIGN INCOME. T HEREAFTER, ONE TDS CERTIFICATE OF RS.17,89,674/- WAS SUBMITTED TO THE AO VIDE ASSESSEES LETTER DATED 23.12.2003. 4. THE ASSESSING OFFICER PREPARED INTIMATIO N UNDER SECTION 143(1) ON MARCH 31, 2004 AT RETURNED INCOME IN WHICH FULL CRE DIT OF TAX DEDUCTED AT SOURCE WAS NOT ALLOWED AND INTEREST UNDER SECTION 2 34C WAS THUS CHARGED. THEREAFTER, A REGULAR ASSESSMENT U/S 143(3) WAS MAD E ON 17 TH MARCH, 2006, BY DETERMINING TOTAL INCOME AT RS.48,92,28,800/-, I N PURSUANCE TO WHICH A 3 DEMAND OF RS.5,03,58,043/- WAS RAISED. THE ASSESSE E THEN FILED AN APPLICATION DATED SEPTEMBER 16, 2008 U/S 154 OF THE ACT AGAINST THE REGULAR ASSESSMENT REQUESTING TO GIVE CREDIT OF TDS OF RS.4 3,98,077/- AND TO RECOMPUTE THE INTEREST CHARGEABLE U/S 234C ACCORDIN GLY. THE SUM OF RS.43,98,077/- INCLUDES TDS CERTIFICATE OF RS.17,89 ,674/- SUBMITTED TO THE AO ON 23.12.2003. HOWEVER, THE ASSESSEES APPLICAT ION WAS REJECTED BY THE AO BY OBSERVING THAT THE ASSESSEE SHOULD HAVE FILED APPLICATION U/S 154 WITH REFERENCE TO THE INTIMATION ISSUED BY THE AO UNDER SEC. 143(1) ON MARCH 1, 2004 AND NOT WITH REFERENCE TO THE REGULAR ASSESSME NT MADE U/S 143(3) OF THE ACT. SINCE THE APPLICATION U/S 154 DATED 16.9.2008 WAS BEYOND THE 4 YEARS FROM THE DATE OF THE INTIMATION ISSUED U/S 143(1) O F THE ACT ON MARCH 31, 2004, THE AO REJECTED THE APPLICATION ON THE GROUND OF LIMITATION. 5. THE LEARNED CIT(A), AFTER CONSIDERING TH E PROVISIONS OF SEC. 155(14) OF THE ACT, DIRECTED THE AO TO GIVE THE CREDIT OF T DS CERTIFICATE OF RS.17,89,674/- FURNISHED TO THE AO VIDE ASSESSEES LETTER DATED 23.12.2003. AFTER CONSIDERING THE PROVISIONS OF ARTICLE 265 OF THE CONSTITUTION OF INDIA AND VARIOUS OTHER DECISIONS, THE CIT(A) FURTHER DIR ECTED THE AO TO GIVE THE CREDIT OF TDS CERTIFICATE OF RS.26,08,03/-, WHICH W AS ATTACHED ALONG WITH THE RETURN OF INCOME. HENCE, THE DEPARTMENT IS IN AP PEAL BEFORE US. 4 6. HAVING REGARD TO THE PROVISIONS CONTAINE D IN SECTION 155(14), WHERE IT HAS BEEN PROVIDED THAT WHERE IN THE ASSESSMENT F OR ANY PREVIOUS YEAR OR IN ANY INTIMATION OR DEEMED INTIMATION ISSUED U/S 143( 1) FOR ANY PREVIOUS YEAR, CREDIT FOR TAX DEDUCTED OR COLLECTED HAS NOT BEEN G IVEN ON THE GROUND THAT THE TDS CERTIFICATE WAS NOT FILED ALONG WITH THE RETURN OF INCOME BUT SUBSEQUENTLY, SUCH CERTIFICATE IS PRODUCED BEFORE T HE ASSESSING OFFICER, WITHIN 2 YEARS FROM THE END OF THE ASSESSMENT YEAR IN WHICH SUCH INCOME IS ASSESSABLE, THE AO SHALL AMEND THE ORDER OF ASSESSM ENT OR ANY INTIMATION OR DEEMED INTIMATION AND IN THAT RESPECT PROVISIONS OF SEC. 154 SHALL APPLY. WE FIND THAT THE CIT(A) HAS RIGHTLY DIRECTED THE AO TO ALLOW CREDIT OF TDS AMOUNT OF RS.17,89,674/- INASMUCH AS TDS CERTIFICAT E OF RS.17,89,674/- WAS PRODUCED BY THE ASSESSEE BEFORE THE AO ON 23.12.200 3 WHICH IS UNDOUBTEDLY WITHIN 2 YEARS FROM THE END OF THE RELEVANT ASSESSM ENT YEAR. THEREFORE, THE AO SHOULD HAVE GIVEN THE CREDIT OF RS.17,89,674/- A ND ALLOWED THE ASSESSEES APPLICATION ACCORDINGLY. WE, THEREFORE, UPHELD THE ORDER OF THE CIT(A) ON THIS COUNT. 7. COMING TO THE CREDIT OF TDS CERTIFICATE OF RS.26,08,043/-, WHICH WAS ATTACHED WITH THE RETURN OF INCOME, WE FIND THA T THE CIT(A) HAS RIGHTLY DIRECTED THE AO TO ALLOW CREDIT OF TDS AFTER RELYIN G UPON THE PROVISIONS OF ARTICLE 265 OF THE CONSTITUTION OF INDIA AS WELL AS VARIOUS DECISIONS 5 MENTIONED IN THE LEARNED CIT(A)S ORDER. THE CONCL UDING PART OF THE CIT(A)S ORDER ON THIS ASPECT OF THE MATTER READS A S UNDER:- 3.9 I HAVE CAREFULLY CONSIDERED THE APPELLAN TS CONTENTION AND I FIND FORCE IN THE ARGUMENTS PLACED BY THE APP ELLANT. THERE IS NO DISPUTE THAT THE TDS CERTIFICATE WAS FI LED BY THE APPELLANT BEFORE THE AO EITHER WITH THE RETURN OF I NCOME OR WITHIN THE TIME ALLOWED AS PER LAW. IN VIEW OF THE CIRCULAR NO.14 (XL-35) DATED APRIL 11, 1955 (SUPRA), IT IS C LEAR THAT IT IS THE DUTY OF THE AO TO ASSIST AND GRANT THE ASSESSEE REFUNDS OR RELIEFS WHICH THEY ARE GENUINELY ENTITLED TO. SINC E THE APPELLANTS CLAIM OF CREDIT OF TDS CERTIFICATES IS GENUINE AND IS SUPPORTED BY THE TDS CERTIFICATES ON RECORD WITH TH E AO, THE CLAIM OUGHT TO BE ALLOWED TO THE APPELLANT OTHERWIS E IT WOULD TANTAMOUNT TO GROSS INJUSTICE TO THE APPELLANT. IT IS NOT A CASE WHERE REFUND IS NOT GRANTED SINCE THE CLAIM IS NOT GENUINE, BUT A CASE WHERE AT THE MOST IT CAN BE SAID THAT A PROCED URAL DELAY HAS OCCURRED ON PART OF APPELLANT IN SEEKING REFUND FRO M THE APPELLANT. IN VIEW OF THE ABOVE, THE APPELLANT C ANNOT BE DENIED THE CLAIM OF CREDIT OF TDS CERTIFICATE. HOWEVER, T HE AO IS DIRECTED TO VERIFY WHETHER INCOME IN RESPECT OF WHI CH TDS CERTIFICATE WAS SUBMITTED HAS BEEN OFFERED FOR TAX OR NOT. THE AO IS ALSO FREE TO EXAMINE THE GENUINENESS OF TDS C ERTIFICATES SUBMITTED BY THE APPELLANT. 8. ON READING THE AFORESAID OBSERVATIONS OF THE LEA RNED CIT(A), WE FIND THAT THE CIT(A) HAS ALREADY GIVEN THE DIRECTIONS TO THE AO TO VERIFY WHETHER INCOME IN RESPECT OF WHICH, TDS CERTIFICATE WAS SUB MITTED, HAS BEEN OFFERED TO TAX OR NOT AND THE AO IS ALSO FREE TO EXAMINE TH E GENUINENESS OF THE TDS CERTIFICATES SUBMITTED BY THE ASSESSEE. WE ARE, TH EREFORE, OF THE CONSIDERED 6 VIEW THAT THE REVENUE SHOULD NOT HAVE ANY GRIEVANCE IN SO FAR AS THIS PART OF THE CIT(A)S ORDER IS CONCERNED. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. THIS DECISION IS PRONOUNCED IN THE OPEN COURT ON 7 TH JULY, 2010 IMMEDIATELY AFTER THE HEARING WAS OVER. SD/- SD/- (A.K. GARODIA) (C.L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 7 TH JULY, 2010. COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.