ACIT, Circle - 11(2), , Kolkata V. M/s. Shristi Infrastructure Development Corporation Ltd., Kolkata

ITA 2140/KOL/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 8789 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 14-11-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 10-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BAIJ NATH SINGH J
• Keywords: TDS
• Section: 143(3); 263

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 2140 / KOL / 2018 & CROSS OBJECTION NO.129/KOL/2018 (A/O ITA NO.2140/KOL/2018) ASSESSMENT YEAR :2011-12 ACIT, CIRCLE-11(2), P-7, CHOWRINGHEE SQUARE, 6 TH FLOOR, KOLKATA-69 M/S SHRISTI INFRASTRUCTURE DEVELOPMENT CORPORATION LTD., PLOT NO.1,2,&3, BLOCK EP, SECTOR-V, SALT LAKE CITY, KOLKATA-700 091 [ PAN NO.AABCP 5074 F ] V/S . M/S SHRISTI INFRASTRUCTURE DEVELOPMENT CORPORATION LTD., PLOT NO.1,2,&3, BLOCK EP, SECTOR-V, SALT LAKE CITY, KOLKATA-700 091 ACIT, CIRCLE-11(2), KOLKATA /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI SUNIL SURANA, FCA /BY REVENUE SHRI BAIJ NATH SINGH, JCIT-DR /DATE OF HEARING 14-11-2019 /DATE OF PRONOUNCEMENT 20-11-2019 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS REVENUES APPEAL AND ASSESSEE CROSS OBJECTION FOR ASSESSMENT YEAR 2011-12 ARISE AGAINST THE COMMISSIONER OF INCO ME TAX (APPEALS)-4 KOLKATAS ORDER DATED 31.07.2018 PASSED IN CASE NO. 402/CIT(A)-4/C-11(2)/16- ITA NO.2140/KOL/2018 & CO.129/KOL/2018 A.Y. 2011- 12 ACIT CIR-11(2), KOL. VS. M/S SHRISTI INFRASTRUC TURE DEVELOPMENT CORPN. LTD. PAGE 2 17 INVOLVING PROCEEDINGS U/S 263 R.W.S. 143(3) OF T HE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE(S) PERUSED. 2. FOR THE REASONS STATED IN THE REVENUES CONDONAT ION PETITION AND ON ACCOUNT OF ASSESSEES NO OBJECTION, WE CONDONE ONE DAYS DELAY IN FILING OF THE REVENUES APPEAL ITA NO.2140/KOL/2018. THE CASE IS NOW TAKEN UP FOR ADJUDICATION ON MERITS. 3. THE REVENUES SOLE SUBSTANTIVE GRIEVANCE PLEADED IN THE INSTANT APPEAL IS THAT CIT(A) HAS ERRED IN LAW AND ON FACTS IN ALL OWING THE TAXPAYERS PLEA SEEKING CREDIT OF THE TDS INCOME OF 65,27,640/- TO BE OFFERED IN THE CORRESPONDING ASSESSMENT YEAR GOING BY RULE 37BA OF THE IT RULES, 1962. THE AMOUNT IN DISPUTE HEREIN OF TDS CREDIT OF 67,27,614/-. THE CIT(A)S DETAILED DISCUSSION DIRECTING THE ASSESSING OFFICER TO ALLOW CREDIT THEREOF IN THE ASSESSMENT YEAR IN WHICH CORRESPONDING INCOME H AS BEEN OFFERED FOR TAXATION READS AS UNDER:- 4. GROUND NO.3, IS REGARDING NON-GRANTING OF TDS CR EDIT. ACCORDING TO THE AO THE ASSESSEE HAS RECEIVED ADVANCES ON WHICH TDS HAS BEEN DEDUCTED SINCE THE SAME HAS NOT BEEN OFFERED FOR INCOME DURING THE YEAR, THEREFORE, CREDIT FOR THE TDS CANT BE ALLOWED IN AY 2011-12. THE LD. A/R CONTENDED THAT HE HAS NOT RECEIVED CREDIT FOR THE TDS EITHER IN AY 2011-1 2 OR IN SUBSEQUENT YEARS. I HAVE PERUSED THE SUBMISSION OF THE ASSESSEE, ASSESS MENT ORDER AND PROVISION OF LAW. RULE 37BA IS VERY CLEAR, CREDIT F OR TDS HAS TO BE ALLOWED IN THE YEAR IN WHICH CORRESPONDING INCOME HAS BEEN OFF ERED FOR TAXATION. THEREFORE, THE AO IS DIRECTED TO GIVE CREDIT FOR TH E TDS CREDITED IN THE YEAR WHICH CORRESPONDING INCOMES HAVE BEEN OFFERED FOR T AXATION BY THE ASSESSEE. THE ASSESSEE IS DIRECTED TO PRODUCE THE RELEVANT EV IDENCE BEFORE THE AO. THE SECOND PART OF THE GRIEVANCE OF THE ASSESSEE IS THAT SOMETIMES THE DEDUCTOR HAS DEDUCTED TDS ON ADVANCE AS WELL AS ON THE FINAL BILLING. HOWEVER, CREDIT FOR TDS DEDUCTED ON ADVANCE HAS NOT BEEN GRANTED IN SUCH CASES WHILE CREDIT FOR TDS DEDUCTED ON FINAL BILLIN G HAS BEEN GIVEN. SINCE IN THE INSTANT CASE, THE DEDUCTOR HAS ALREADY DEPOSITE D THE TDS AMOUNT AND IT IS GETTING REFLECTED 26AS OF THE DEDUCTEE. FURTHER, TH E A/R STATED THAT HE WILL FILE AN UNDERTAKING FROM THE DEDUCTEE THAT THEY HAVE NOT CLAIMED ANY REFUND OF THE DOUBLE DEDUCTION OF TDS. IT IS ALSO SEEN THAT T HERE IS NO PROVISION IN LAW FOR REFUND OF SUCH TDS TO THE DEDUCTOR. THEREFORE, IT IS LOGICAL THAT THE CREDIT FOR SUCH EXCESS TDS PAID BY DEDUCTOR WOULD GO TO TH E ASSESSEES ACCOUNT. THE AO IS DIRECTED TO GRANT THE CORRESPONDING CREDI T. THEREFORE, GROUND NO. 3 IS ALLOWED . ITA NO.2140/KOL/2018 & CO.129/KOL/2018 A.Y. 2011- 12 ACIT CIR-11(2), KOL. VS. M/S SHRISTI INFRASTRUC TURE DEVELOPMENT CORPN. LTD. PAGE 3 4. IT IS THUS CLEAR THAT THE CIT(A) HAS DIRECTED TH E ASSESSING OFFICER TO GRANT CREDIT OF THE TDS DEDUCTED / CREDITS TO THE A SSESSEE IN WHICH IT HAS OFFERED THE CORRESPONDING INCOME FOR TAXATION AS PE R LAW. WE DO NOT SEE ANY VIOLATION OF THE RULE 37BA TO THIS EFFECT IN REVENU ES GRIEVANCE. WE ACCORDINGLY ARE OF THE VIEW THAT CIT(A) HAS NEITHER COMMITTED ANY ILLEGALITY OR IRREGULARITY IN GIVING NECESSARY DIRECTIONS TO THE ASSESSING OFFICER UNDER CHALLENGE. THE REVENUE FAILS IN ITS SOLE SUBSTANTIV E GROUND AS WELL AS MAIN APPEAL ITA NO.2140/KOL/2018 THEREFORE. 5. THE ASSESSEES CROSS OBJECTION NO. 129/KOL/2018 SUPPORTIVE OF THE CIT(A)S DIRECTIONS IS RENDERED INFRUCTUOUS. 6. THIS REVENUES APPEAL ITA NO.2140/KOL/2018 IS DI SMISSED WHEREAS ASSESSEES CROSS OBJECTION NO. 129/KOL/2018 IS DISM ISSED AS INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT 20/ 11/2019 SD/- SD/- ( ) (( ) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP )- 20 / 11 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-M/S SHRISTI INFRASTRUCTURE DEVELOPMENT CO RPORATION LTD. PLOT NO.1,2 & 3, BLOCK EP, SECT OR-V, SALT LAKE CITY, KOLKATA-91 2. /REVENUE-ACIT, CRI-11(2), P-7, CHOWRINGHEE SQUARE, 6 TH FLOOR, KOLKATA-69 3. 4 5 / CONCERNED CIT KOLKATA 4. 5- / CIT (A) KOLKATA 5. 8 ((4, 4, / DR, ITAT, KOLKATA 6. = / GUARD FILE. BY ORDER/ , /TRUE COPY/ 4,