M/s. Theo Desh Consultants, Baroda V. The Addl. CIT, Range-2, Baroda

ITA 2680/AHD/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6265 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-09-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 07-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Recovery proceedings

Judgement Text

, * ** *CH CHCH CH* ** * IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD IZEKSN DQEKJ IZEKSN DQEKJ IZEKSN DQEKJ IZEKSN DQEKJ BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER I.T.A. NO.2680/AHD/2014 ( / ASSESSMENT YEAR : 2011-12) M/S. THEO DESH CONSULTANTS, 82-83, 3 RD FLOOR, SURYAKIRAN COMPLEX, OLD PADRA ROAD, BARODA. VS. ADDL. COMMISSIONER OF INCOME TAX, RANGE 2, AAYAKAR BHAWAN, RACE COURSE, BARODA 390 007 ! PAN/GIR NO. : AACFT 3269 Q ( ' / APPELLANT ) .. ( #' RESPONDENT ) ' $ APPELLANT BY : SHRI SURENDRA MODIANI, A.R. #'%$ / RESPONDENT BY : SHRI MUDIT NAGPAL, SR. D.R & ' (%) * / DATE OF HEARING 22/01/2018 +,-. %) * / DATE OF PRONOUNCEMENT 23/01/2018 / O R D E R PER MAHAVIR PRASAD, JUDICIAL MEMBER : THIS APPEAL OF THE ASSESSEE RELATING TO ASSESSMEN T YEAR 2011-12 IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-II, BARODA DATED 30.06.2014 WHICH IS ARIS ING OUT OF ORDER U/S.143(3) OF THE INCOME TAX ACT, 1961 DATED 23.01. 2014 FRAMED BY ADDL. COMMISSIONER OF INCOME TAX, RANGE - 2, BARODA , VIDE APPEAL NO.CAB/II-350/13-14. ITA NO.2680/AHD /2014 M/S. THEO DESH CONSULTANTS VS. ADDL.CIT ASST.YEAR 2011-12 - 2 - 2. ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1) THE ASSESSEE IS ENGAGED IN THE BUSINESS AS LAN D SURVEY CONTRACTOR. THE ASSESSEE FILED ITS RETURN OF INCOME ON 16.09.2011 AND THE RETURN WAS PROCESSED U/S 143(1). 2) THE CASE WAS SELECTED FOR SCRUTINY AND NOTICES WERE ISSUED U/S.143(2) AND 142(1). ORDER WAS PASSES U/S.143(3) DATED 18.12.2013 ASSESSING THE INCOME AS RS.62,95,030/- A FTER MAKING CERTAIN ADDITIONS OF RS 2,73,000/-. 3) THE ASSESSING OFFICER HAS NOT ALLOWED TDS CLAI M OF RS.12,07,747/- ON ACCOUNT OF THE FACT THAT CORRESPO NDING INCOME WAS NOT OFFERED FOR TAXATION IN THE RELEVANT ASSESS MENT YEAR OF SUCH CLAIM. THE COMMISSIONER OF INCOME TAX (APPEALS ) HAS UPHELD THE ORDER OF THE ASSESSING OFFICER. AGAINST THIS WE WOULD LIKE TO SUBMIT THAT THE ASSESSEE IS FOLLOWING CASH SYSTEM OF ACCOUNTING AND THEREFORE THE INCOME IS OFFERED TO T AX ON RECEIPT BASIS. THE INCOME TO THE EXTENT OF TDS DEDUCTED AND PAID BY THE CUSTOMERS IN RESPECT OF AY 2011-12 IS ALREADY OFFER ED FOR TAXATION IN THE RETURN OF INCOME OF AY 2011-12. THU S THE DISALLOWANCE OF TAX CREDIT BY THE ASSESSING OFFICER IS NOT JUSTIFIED. 4) YOUR APPELLANT SUBMITS THAT THE SAID DISALLOWA NCE IS NOT JUSTIFIED AND THEREFORE YOUR HONOUR IS REQUESTED TO GRANT US THE TDS CREDIT. 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- THE ASSESSEE IS ENGAGED IN THE BUSINESS AS LAND S URVEY CONTRACTOR. THE RETURN OF INCOME WAS FILED ON 16.09.2011 DECLAR ING TOTAL INCOME OF RS.60,22,030/. THE ASSESSMENT U/S.143(3) WAS FINALI ZED ON 18.12.2013 DETERMINING TOTAL INCOME OF RS.62,95,030/- AFTER MA KING DISALLOWANCE OF RS.2,00,000/- ON ACCOUNT OF SITE EXPENSES AND RS.73 ,000/- U/S.40(A)(IA). 3.1 THE LEARNED AO DID NOT ALLOW TDS CLAIM OF RS.12 ,07,747/- ON ACCOUNT OF THE FACT THAT CORRESPONDING INCOME WAS N OT OFFERED FOR TAXATION IN THE RELEVANT ASSESSMENT YEAR OF SUCH CL AIM. ITA NO.2680/AHD /2014 M/S. THEO DESH CONSULTANTS VS. ADDL.CIT ASST.YEAR 2011-12 - 3 - 4. AGAINST THE SAID ORDER ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LEARNED CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE. 5. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMP UGNED ORDER. ASSESSEE IS ENGAGED IN THE BUSINESS AS LAND SURVEY CONTRACTOR. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICES WERE ISSUED U /S.143(2) AND 142(1). ORDER WAS PASSED U/S.143(3) DATED 18.12.2013 ASSESS ING THE INCOME AS RS.62,95,030/- AFTER MAKING CERTAIN ADDITIONS OF RS .2,73,000/-, AGAINST WHICH THE ASSESSEE IS NOT IN APPEAL. 6. THE CIT(A) HAS NOT ALLOWED TDS CLAIM OF RS.12,07 ,747/- ON ACCOUNT OF THE FACT THAT CORRESPONDING INCOME WAS N OT OFFERED FOR TAXATION IN THE RELEVANT ASSESSMENT YEAR OF SUCH CL AIM. THE ASSESSEE FOLLOWS CASH SYSTEM ON ACCOUNTING. THE PROVISION OF SECTIONS OF CHAPTER- XVII COLLECTION AND RECOVERY OF TAX OF THE INCOME T AX ACT, 1961 ARE NOT CHARGING SECTIONS. THE DEDUCTION OF TAX AT SOUR CE IS MERELY ONE OF THE MODE OF COLLECTION OF TAX. THEREFORE IT MAY NOT ALWAYS BE POSSIBLE ALL THE TIME TO CO-RELATE A SPECIFIC AMOUNT OF TDS WITH A SPECIFIC AMOUNT OF INCOME EARNED BY THE ASSESSEE IN A PARTICULAR ASSES SMENT YEAR. 6.1 IN SUPPORT OF ITS CONTENTION, ASSESSEE CITED AN ORDER OF DELHI BENCH IN THE MATTER OF CHANDER SHEKHAR AGGARWAL VS. ASSIS TANT COMMISSIONER OF INCOME-TAX, CIRCLE 37(1), NEW DELHI, [2016] 67 T AXMANN.COM 62 (DELHI TRIB.). OPERATIVE PARA OF THE SAME IS REPR ODUCED AS UNDER: ITA NO.2680/AHD /2014 M/S. THEO DESH CONSULTANTS VS. ADDL.CIT ASST.YEAR 2011-12 - 4 - 8. WE HAVE CAREFULLY CONSIDERED THE ORIGINAL SUBMI SSION AND PERUSED THE MATERIAL ON RECORD. IT IS NOTICED THAT IN THE I NSTANT CASE ASSESSEE AS ADOPTED CASH METHOD OF ACCOUNTING. HE FURNISHED HIS RETURN OF INCOME CLAIMING CREDIT OF TDS OF RS.79,91,290/- WHICH WAS FURTHER REVISED TO RS.80,16,290/-. THE AO RESTRICTED THE CREDIT OF RS. 71,20,267/- IN THE INTIMATION U/S 143(1) OF THE ACT. THE CIT(A) HAS UP HELD THE RESTRICTION INTER-ALIA ON THE GROUND THAT CREDIT OF TDS IS TO B E ALLOWED IN TERMS OF RULE 37BA(2) OF THE RULES AND AS SUCH THE CREDIT WO ULD BE ALLOWABLE ON PRO RATA BASIS IN THE YEAR IN WHICH THE CERTIFICATE IS ISSUED AND ALSO IN FUTURE WHERE BALANCE OF SUCH INCOME IS FOUND TO BE ASSESSABLE AS PER THE MANDATE OF SECTION 199 OF THE ACT. SHE HAS HELD THAT ANY AMOUNT WHICH HAS NOT BEEN ASSESSED IN ANY YEAR BUT REFERRE D IN THE TDS CERTIFICATE CANNOT BE CLAIMED UNDER SECTION 199 OF THE ACT. 9. SUB-SECTION (1) OF SECTION 199 OF THE ACT PROVID ES THAT 'ANY DEDUCTION MADE IN ACCORDANCE WITH THE FOREGOING PROVISIONS OF THIS CHAPTER AND PAID TO THE CENTRAL GOVERNMENT SHALL BE TREATED AS A PAYMENT OF TAX ON BEHALF OF THE PERSON FROM WHOSE INCOME THE DEDUCTIO N WAS MADE. IN VIEW THEREOF, SINCE THE TAX WAS DEDUCTED AT SOURCE BY THE DEDUCTOR AND THE AMOUNT WAS DEPOSITED BY THE DEDUCTOR ON BEHALF OF THE ASSESSEE, THE SAID SUM IS DEEMED TO BE THE PAYMENT OF TAX MADE ON BEHALF OF THE ASSESSEE. ALSO, SECTION 198 OF THE ACT PROVIDES THA T ALL SUMS DEDUCTED IN ACCORDANCE WITH CHAPTER XVII-B OF THE ACT SHALL FOR THE PURPOSES OF COMPUTING THE INCOME OF AN ASSESSEE BE DEEMED TO BE INCOME RECEIVED. THUS, SECTION 198 OF THE ACT SPECIFICALLY PROVIDES THAT TAX DEDUCTED AT SOURCE SHALL FOR THE PURPOSE OF COMPUTING INCOME OF AN ASSESSEE WILL BE DEEMED TO BE INCOME RECEIVED BY THE ASSESSEE. THUS, THERE IS NO JUSTIFICATION NOT TO GRANT CREDIT OF TAX DEDUCTED A ND DEPOSITED TO THE ACCOUNT OF CENTRAL GOVERNMENT BY THE DEDUCTOR TO TH E ASSESSEE FROM WHOSE INCOME, SUCH TAX HAS BEEN DEDUCTED BY THE DED UCTOR, MORE PARTICULARLY WHEN SUCH TDS STANDS DULY DECLARED AS INCOME BY THE ASSESSEE. THE CONCLUSION OF THE CIT(A) TO GRANT PRO PORTIONATE CREDIT IS ALSO NOT IN ACCORDANCE WITH THE CASH SYSTEM OF ACCO UNTING FOLLOWED BY THE ASSESSEE. THE CIT(A) IN HER ORDER HAS LAID MUCH EMPHASIS ON RULE 37BA OF THE RULES. RULE 37BA AS INSERTED W.E.F. 1.4 .2009 READS AS UNDER:- 'CREDIT FOR TAX DEDUCTED AT SOURCE FOR THE PURPOSES OF SECTION 199: ITA NO.2680/AHD /2014 M/S. THEO DESH CONSULTANTS VS. ADDL.CIT ASST.YEAR 2011-12 - 5 - 37BA.(1) CREDIT FOR TAX DEDUCTED AT SOURCE AND PAID TO THE CENTRAL GOVERNMENT IN ACCORDANCE WITH THE PROVISION S OF CHAPTER XVII, SHALL BE GIVEN TO THE PERSON TO WHOM PAYMENT HAS BEEN MADE OR CREDIT HAS BEEN GIVEN (HEREINAFTER REF ERRED TO AS DEDUCTEE) ON THE BASIS OF INFORMATION RELATING TO D EDUCTION OF TAX FURNISHED BY THE DEDUCTOR TO THE INCOME-TAX AUTHORI TY OR THE PERSON AUTHORIZED BY SUCH AUTHORITY. (2) [(I) WHERE UNDER ANY PROVISIONS OF THE ACT, THE WHOLE OR ANY PART OF THE INCOME ON WHICH TAX HAS BEEN DEDUCTED A T SOURCE IS ASSESSABLE IN THE HANDS OF A PERSON OTHER THAN THE DEDUCTEE, CREDIT FOR THE WHOLE OR ANY PART OF THE TAX DEDUCTE D AT SOURCE, AS THE CASE MAY BE, SHALL BE GIVEN TO THE OTHER PERSON AND NOT TO THE DEDUCTEE: PROVIDED THAT THE DEDUCTEE FILES A DECLARATION WITH THE DEDUCTOR AND THE DEDUCTOR REPORTS THE TAX DEDUCTION IN THE N AME OF THE OTHER PERSON IN THE INFORMATION RELATING TO DEDUCTI ON OF TAX REFERRED TO IN SUB-RULE (1).] (II) THE DECLARATION FILED BY THE DEDUCTEE UNDER CL AUSE (I) SHALL CONTAIN THE NAME, ADDRESS, PERMANENT ACCOUNT NUMBER OF THE PERSON TO WHOM CREDIT IS TO BE GIVEN, PAYMENT OR CR EDIT IN RELATION TO WHICH CREDIT IS TO BE GIVEN AND REASONS FOR GIVING CREDIT TO SUCH PERSON. (III) THE DEDUCTOR SHALL ISSUE THE CERTIFICATE FOR DEDUCTION OF TAX AT SOURCE IN THE NAME OF THE PERSON IN WHOSE NAME C REDIT IS SHOWN IN THE INFORMATION RELATING TO DEDUCTION OF T AX REFERRED TO IN SUB-RULE (1) AND SHALL KEEP THE DECLARATION IN H IS SAFE CUSTODY. (3)(I) CREDIT FOR TAX DEDUCTED AT SOURCE AND PAID T O THE CENTRAL GOVERNMENT, SHALL BE GIVEN FOR THE ASSESSMENT YEAR FOR WHICH SUCH INCOME IS ASSESSABLE. (II) WHERE TAX HAS BEEN DEDUCTED AT SOURCE AND PAID TO THE CENTRAL GOVERNMENT AND THE INCOME IS ASSESSABLE OVE R A NUMBER OF YEARS, CREDIT FOR TAX DEDUCTED AT SOURCE SHALL B E ALLOWED ACROSS THOSE YEARS IN THE SAME PROPORTION IN WHICH THE INCOME IS ASSESSABLE TO TAX. ITA NO.2680/AHD /2014 M/S. THEO DESH CONSULTANTS VS. ADDL.CIT ASST.YEAR 2011-12 - 6 - (4) CREDIT FOR TAX DEDUCTED AT SOURCE AND PAID TO T HE ACCOUNT OF THE CENTRAL GOVERNMENT SHALL BE GRANTED ON THE BASI S OF- (I) THE INFORMATION RELATING TO DEDUCTION OF TAX FU RNISHED 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 RES PECT OF THE CLAIM FOR THE CREDIT, SUBJECT TO VERIFICATION IN ACCORDAN CE WITH THE RISK MANAGEMENT STRATEGY FORMULATED BY THE BOARD FROM TI ME TO TIME.]' 10. A READING OF THE AFORESAID WILL MAKE IT APPAREN T THAT RULE 37BA(1) OF THE ACT PROVIDES RULES RELATING TO HAVE CREDIT F OR THE PURPOSE OF SECTION 199 OF THE ACT AS IS PROVIDED IN SECTION 19 9(3) OF THE ACT. RULE 37BA(3)(I) OF THE ACT PROVIDES THAT CREDIT FOR TAX DEDUCTED AT SOURCE AND CREDITED TO THE ACCOUNT OF CENTRAL GOVERNMENT SHALL BE GIVEN FOR THE ASSESSMENT YEAR FOR WHICH, SUCH INCOME IS ASSESSABL E. THUS, IF THE SAID RULE IS READ, IT IS CLEAR THAT THE ASSESSEE IS ENTI TLED TO GET CREDIT OF THE TAX DEDUCTED AT SOURCE ONCE SUCH INCOME IS INCLUDED IN HIS INCOME. THE ADMITTED FACTS OF THE CASE OF THE APPELLANT IS THAT THE TAX DEDUCTED AT SOURCE HAS BEEN OFFERED AS INCOME BY THE APPELLANT IN HIS RETURN OF INCOME AND THEREFORE, HAVING REGARD TO EVEN THE RUL ES, THE ASSESSEE IS ENTITLED TO CREDIT OF THE TAX DEDUCTED AT SOURCE. T HE ASSESSEE BEFORE THE CIT(A) HAD PROVIDED AN ILLUSTRATION WHEREBY IT WAS SUBMITTED THAT ASSUMING AN ASSESSEE FOLLOWS CASH SYSTEM OF ACCOUNT ING AND RAISES AN INVOICE OF RS. 100/- FOR THE SERVICES RENDERED IN F INANCIAL YEAR 2010-11 ON HIS CLIENT AND THE SAID CLIENT DEPOSITS TDS OF R S. 10/- TO THE CREDIT OF THE ACCOUNT OF THE ASSESSEE AND ISSUED A CERTIFICAT E OF TDS TO THE ASSESSEE AND THUS, IT WAS SUBMITTED THAT AN AMOUNT OF RS. 10/- WAS SINCE DEDUCTED IN RESPECT OF THE ASSESSEE, THE SAID SUM I S INCOME OF THE ASSESSEE WHICH IS ASSESSABLE TO TAX. IT WAS SUBMITT ED THAT ONCE AN INCOME IS ASSESSABLE TO TAX, THE ASSESSEE IS ELIGIB LE FOR CREDIT DESPITE THE FACT THAT REMAINING AMOUNT WOULD BE TAXABLE IN THE SUCCEEDING YEARS. WE ARE IN AN AGREEMENT WITH THE ABOVE SUBMISSION TH AT THE TDS DEDUCTED BY THE DEDUCTOR ON BEHALF OF THE ASSESSEE AND OFFERED AS INCOME IS TO BE ALLOWED AS CREDIT IN THE YEAR OF DE DUCTION OF TAX DEDUCTED AT SOURCE. RULE 37BA OF THE ACT PROVIDES T HAT CREDIT FOR TDS SHOULD BE ALLOWED IN THE YEAR IN WHICH INCOME IS AS SESSABLE. FURTHER CLAUSE (II) OF RULE 37BA(3) OF THE ACT PROVIDES THA T WHERE TAX HAS BEEN DEDUCTED AT SOURCE PAID TO THE CENTRAL GOVERNMENT A ND THE INCOME IS ITA NO.2680/AHD /2014 M/S. THEO DESH CONSULTANTS VS. ADDL.CIT ASST.YEAR 2011-12 - 7 - ASSESSABLE OVER A NUMBER OF YEARS, CREDIT FOR TAX D EDUCTED AT SOURCE SHALL BE ALLOWED ACROSS THOSE YEARS IN THE SAME PRO PORTION IN WHICH THE INCOME IS ASSESSABLE TO TAX. IN OUR CONSIDERED OPIN ION, THIS RULE IS ONLY APPLICABLE WHERE ENTIRE COMPENSATION IS RECEIVED IN ADVANCE BUT THE SAME IS NOT ASSESSABLE TO TAX IN THAT YEAR BUT IS A SSESSABLE IN A NUMBER OF YEARS. HOWEVER, SUCH RULE HAS NO APPLICABILITY, WHERE ASSESSEE FOLLOWS CASH SYSTEM OF ACCOUNTING. THIS CAN BE SUPP ORTED FROM THE ILLUSTRATION THAT SUPPOSE AS ASSESSEE WHO IS FOLLOW ING CASH SYSTEM OF ACCOUNTING RAISES AN INVOICE OF RS. 100/- IN RESPEC T OF WHICH DEDUCTOR DEDUCTS TDS OF RS. 10/- AND DEPOSITS TO THE ACCOUNT OF THE CENTRAL GOVERNMENT. ACCORDINGLY, THE ASSESSEE WOULD OFFER A N INCOME OF RS. 10/- AND CLAIM TDS OF RS. 10/-. HOWEVER IN THE OPIN ION OF THE REVENUE, THE ASSESSEE WOULD NOT BE ENTITLED TO CREDIT OF THE ENTIRE TDS OF RS. 10/- BUT WOULD BE ENTITLED TO PROPORTIONATE CREDIT ONLY. NOW LET US ASSUME THAT RS. 90/- IS NEVER PAID TO THE ASSESSEE BY THE DEDUCTOR. IN SUCH CIRCUMSTANCES, RS. 9/- WHICH WAS DEDUCTED AS TDS BY THE DEDUCTOR WOULD NEVER BE AVAILABLE FOR CREDIT TO THE ASSESSEE THOUGH THE SAID SUMS STAND DULY DEPOSITED TO THE ACCOUNT OF THE CENTRAL GOVERNMENT. RULE. 37BA(3) OF THE ACT CANNOT BE INTERPRETED SO AS TO S AY THAT TDS DEDUCTED AT SOURCE AND DEPOSITED TO THE ACCOUNT OF THE CENTR AL GOVERNMENT IS THOUGH INCOME OF THE ASSESSEE BUT IS NOT ELIGIBLE F OR CREDIT OF TAX IN THE YEAR WHEN SUCH TDS WAS OFFERED AS INCOME. THIS VIEW IS OTHERWISE ALSO NOT IN ACCORDANCE WITH THE PROVISIONS CONTAINED IN SECTION 198 AND 199 OF THE ACT. THE PROPOSITION AS LAID OUT BY THE CIT( A) AND LEARNED DR BEFORE US THEREFORE CANNOT BE COUNTENANCED. IN ARRI VING AT THE ABOVE CONCLUSION, WE ALSO DERIVE SUPPORT FROM THE DECISIO N OF VISAKHAPATNAM BENCH IN THE CASE OF PEDDU SRINIVASA RAO (SUPRA) HA S HELD AS UNDER: '8. WE HAVE CAREFULLY PERUSED THE PROVISIONS OF SEC TION 199 OF THE ACT AND ACCORDING TO THE PRE-AMENDED PROVISIONS OF SECTION 199, THE CREDIT OF DEDUCTION MADE IN ACCORDANCE WIT H THE RELEVANT PROVISIONS OF THIS CHAPTER AND PAID TO THE CENTRAL GOVERNMENT, SHALL BE GIVEN FOR THE AMOUNT SO DEDUCT ED ON THE PRODUCTION OF THE CERTIFICATE FURNISHED U/S 203 FOR THE ASSESSMENT MADE UNDER THIS ACT FOR THE ASSESSMENT YEAR FOR WHI CH SUCH INCOME IS ASSESSABLE. BUT IN THE AMENDED PROVISIONS THE WORDS 'FOR THE ASSESSMENT YEAR FOR WHICH SUCH INCOME IS A SSESSABLE' HAS BEEN OMITTED. MEANING THEREBY, THAT THE LEGISLA TURE WAS QUITE CONSCIOUS ABOUT THE FACTS AND HARDSHIPS FACED BY SO ME ASSESSEES, WHILE MAKING THE AMENDMENTS IN SECTION 199 AND IN A MENDED PROVISIONS NOTHING HAS BEEN STATED ABOUT THE YEAR I N WHICH THE ITA NO.2680/AHD /2014 M/S. THEO DESH CONSULTANTS VS. ADDL.CIT ASST.YEAR 2011-12 - 8 - CREDIT OF TDS IS TO BE CLAIMED. AS PER AMENDED PROV ISIONS OF SECTION 199, IN SUB-SECTION 1, IT HAS BEEN STATED T HAT ANY DEDUCTIONS MADE IN ACCORDANCE WITH THE FOREGOING PR OVISIONS OF THIS CHAPTER AND PAID TO THE CENTRAL GOVERNMENT SHA LL BE TREATED AS A PAYMENT OF TAX ON BEHALF OF THE PERSON FROM WH OSE INCOME THE DEDUCTION WAS MADE. THEREFORE, AS PER THE AMEND ED PROVISIONS, ONCE THE TDS WAS DEDUCTED, A CREDIT OF THE SAME TO BE GIVEN TO THE ASSESSEES, IRRESPECTIVE OF THE YEAR TO WHICH IT RELATES. THE PRE-AMENDED AND THE AMENDED PROVISIONS OF SECTION 199 ARE EXTRACTED HEREUNDER: 'SECTION 199: CREDIT F OR TAX DEDUCTED - (1) ANY DEDUCTION MADE IN ACCORDANCE WIT H THE FOREGOING PROVISIONS OF THIS CHAPTER AND PAID TO TH E CENTRAL GOVERNMENT SHALL BE TREATED AS A PAYMENT OF TAX ON BEHALF OF THE PERSON FROM WHOSE INCOME THE DEDUCTION WAS MADE, OR OF THE OWNER OF THE SECURITY, OR DEPOSITOR OR OWNER OF PRO PERTY OR OF UNITHOLDER OR OF THE SHAREHOLDER, AS THE CASE MAY B E, AND CREDIT SHALL BE GIVEN TO HIM FOR THE AMOUNT SO DEDUCTED ON THE PRODUCTION OF THE CERTIFICATE FURNISHED UNDER SECTI ON 203 IN THE ASSESSMENT MADE UNDER THIS ACT FOR THE ASSESSMENT Y EAR FOR WHICH SUCH INCOME IS ASSESSABLE: (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 NECESSARY, INCLUDING THE RULES FOR THE PURPOSES OF GIVING CREDIT TO A PERSON OTHER THAN TH OSE REFERRED TO IN SUB-SECTION (1) AND SUB- SECTION (2) AND ALSO TH E ASSESSMENT YEAR FOR WHICH SUCH CREDIT MAY BE GIVEN. SECTION 19 9. (1) ANY DEDUCTION MADE IN ACCORDANCE WITH THE FOREGOING PRO VISIONS OF THIS CHAPTER AND PAID TO THE CENTRAL GOVERNMENT SHA LL BE TREATED AS A PAYMENT OF TAX ON BEHALF OF THE PERSON FROM WH OSE INCOME THE DEDUCTION WAS MADE, OR OF THE OWNER OF THE SECU RITY, OR OF THE DEPOSITOR OR OF THE OWNER OF PROPERTY OR OF THE UNI T-HOLDER, OR OF THE SHAREHOLDER, AS THE CASE MAY BE. (2) ANY SUM RE FERRED TO IN SUB-SECTION (1A) OF SECTION 192 AND PAID TO THE CEN TRAL GOVERNMENT SHALL BE TREATED AS THE TAX PAID ON BEHA LF OF THE PERSON IN RESPECT OF WHOSE INCOME SUCH PAYMENT OF T AX HAS BEEN MADE.' 11. INFACT THE ABOVE VIEW HAS ALSO BEEN FOLLOWED BY AHMEDABAD BENCH IN THE CASE OF SADHBAV ENGINEERING LTD. (SUPRA) WHE REIN IT WAS HELD AS UNDER: ITA NO.2680/AHD /2014 M/S. THEO DESH CONSULTANTS VS. ADDL.CIT ASST.YEAR 2011-12 - 9 - '26. WE FIND THAT THE VISAKHAPATNAM BENCH IN THE CA SE OF PEDDU SRINIVASA RAO (SUPRA) HAS HELD AS UNDER:....... THE LD. DR COULD NOT CITE ANY CONTRARY DECISION OR ANY OTHER GOOD REASON FOR WHICH THE AFORESAID DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL SHOULD NOT BE FOLLOWED BY US. RESPECTFULLY FOLLOWING THE AFORESAID ORDER OF THE TRIBUNAL, WE S ET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND DIRECT THE AO T O ALLOW CREDIT FOR THE TDS TO THE ASSESSEE. THUS, THE GROUND OF AP PEAL OF THE ASSESSEE IS ALLOWED.' 12. FOR THE REASONS STATED ABOVE, THE CLAIM OF THE ASSESSEE IS ALLOWED IN AS MUCH AS IT IS HELD THAT THE ASSESSEE WOULD BE EN TITLED TO CREDIT OF THE ENTIRE TDS OFFERED AS INCOME BY THE ASSESSEE IN HIS RETURN OF INCOME. THE GROUNDS RAISED ARE THEREFORE, ALLOWED. 7. RESPECTFULLY FOLLOWING THE ABOVE SAID JUDGMENT, WE ALLOW THE APPEAL OF THE ASSESSEE. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 23/01/2018 SD/- SD/- IZEKSN DQEKJ IZEKSN DQEKJ IZEKSN DQEKJ IZEKSN DQEKJ EGKOHJ IZLKN EGKOHJ IZLKN EGKOHJ IZLKN EGKOHJ IZLKN YKS[KK LN YKS[KK LN YKS[KK LN YKS[KK LNL; L; L; L; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; (PRAMOD KUMAR) ( MAHAVIR PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 23/01/2018 PRITI YADAV, SR.PS ITA NO.2680/AHD /2014 M/S. THEO DESH CONSULTANTS VS. ADDL.CIT ASST.YEAR 2011-12 - 10 - !'# $#! COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #' / THE RESPONDENT. 3. 012) & 3) / CONCERNED CIT 4. & 3) 45 / THE CIT(A)-II, BARODA. 5. 67 8)'12 *12. 0 / DR, ITAT, AHMEDABAD 6. 8 9: ( GUARD FILE. % & / BY ORDER, # 6)) //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 22/01/2018. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER .. 23/01/2018 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE F 6. AIR ORDER IS PLACED BEFORE THE DICTATING 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 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