SHRI KAMAL TAK, Ajmer V. INCOME TAX OFFICER, WARD-1-3, AJMER

ITA 296/JPR/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1460 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 01-03-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 154; 2

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO.296/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14 SHRI KAMAL TAK, 295 GUJRATI BHATTA, TOPDARA, AJMER . CUKE VS. INCOME TAX OFFICER, WARD-1(3), AJMER. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AMWPT3092M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : WRITTEN SUBMISSION JKTLO DH VKSJ LS @ REVENUE BY : SMT. NEENA JEPH (ADDL. CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 30/08/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 04/09/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A), AJMER DATED 10.01.2018 FOR ASSESSMENT YEAR 2013-14 WHEREIN THE ASSESSEE HAS CHALLENGED THE NON-GRANT OF TCS CREDIT OF RS. 2,28,713/- IN THE PROCEEDINGS U/S 154 OF THE ACT. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE FILED AN APPLICATION U/S 154 AGAINST THE INTIMATION ISSUED U /S 143(1) STATING THAT THE CREDIT OF TDS OF RS. 2,28,714/- WAS NOT GRANTED TO THE ASSESSEE. THE AO DID NOT ALLOW THE CLAIM OF THE ASSESSEE HOLDING THAT THE TCS WAS DEDUCTED IN THE NAME OF MAIN LICENSEE (SHRI BHERU S INGH TAK) AND NO CREDIT OF TCS HAS BEEN SHOWN IN FORM NO. 26AS. THER EFORE, APPLYING THE ITA NO. 296/JP/2018 SHRI KAMAL TAK, AJMER VS ITO, AJMER 2 PROVISIONS OF RULE 37BA, THE RECTIFICATION APPLICAT ION SO FILED BY THE ASSESSEE WAS DISMISSED. ON APPEAL, THE LD. CIT(A) H ELD THAT IT IS AN UNDISPUTED FACT THAT THE TAX OF RS. 2,28,714/- WAS COLLECTED AT SOURCE IN THE NAME OF SHRI BHERU SINGH TAK AND THE DEDUCTEE H AS NOT FULFILLED THE CONDITION LAID DOWN UNDER RULE 37BA(2) AND IT WAS A CCORDINGLY HELD BY THE LD. CIT(A) THAT THERE IS NO MISTAKE APPARENT FR OM THE RECORD IN THE INTIMATION ISSUED U/S 143(1) AS THE CREDIT OF TCS H AS NOT BEEN ALLOWED TO THE ASSESSEE AS HE WAS NEITHER A DEDUCTEE NOR THE C ONDITION LAID DOWN UNDER RULE 37BA(2) ARE FULFILLED. ACCORDINGLY, HE U PHELD THE ORDER PASSED BY THE AO REJECTING THE APPLICATION OF ASSESSEE U/S 154 OF THE ACT. 3. DURING THE COURSE OF HEARING, THE LD. DR REFERRE D TO THE RETURN FILED BY THE ASSESSEE AND SUBMITTED THAT IN THE RETURN OF INCOME, THE ASSESSEE HAS ONLY CLAIMED TCS OF RS. 1,84,650/- AS AGAINST R S. 2,28,714/- WHICH HAS NOW BEEN CLAIMED IN THE RECTIFICATION APPLICATI ON AND IN THE GROUNDS OF APPEAL SO RAISED BEFORE THE BENCH. THE LD. DR FU RTHER REFERRED TO THE PROVISIONS OF RULE 37BA(2) AND SUBMITTED THAT THE A SSESSEE HAS NOT FULFILLED THE CONDITIONS SO LAID DOWN UNDER THE SAI D RULE. IT WAS FURTHER SUBMITTED THAT REGARDING THE DECISIONS WHICH HAVE B EEN RELIED UPON BY THE ASSESSEE IN ITS WRITTEN SUBMISSION, THOSE DECIS IONS ARE DISTINGUISHABLE ON FACTS AS IN THOSE CASES, NECESSARY DECLARATIONS HAVE BEEN FILED BY THE MAIN LICENSEE THAT THEY HAVE NOT CLAIMED THE TCS FR OM THE DEPARTMENT AND IT WAS ACCORDINGLY SUBMITTED THAT THE SAID DECI SIONS CANNOT BE APPLIED IN THE CASE OF THE ASSESSEE AS NO DETAILS H AVE BEEN FURNISHED REGARDING THE MAIN LICENSEE AS TO WHETHER HE HAS CL AIMED ANY CREDIT FOR THE TCS IN THE RETURN OF INCOME OR NOT AND FURTHER THE SPECIFIC REQUIREMENTS OF RULE 37BA(2) OF THE ACT HAVE NOT BE EN FULFILLED. ITA NO. 296/JP/2018 SHRI KAMAL TAK, AJMER VS ITO, AJMER 3 4. IN ITS WRITTEN SUBMISSION, THE ASSESSEE HAS SUBM ITTED THAT WHERE COMPLETE PURCHASE AND SALE OF MAIN LICENSEE HAVE BE EN CONSIDERED IN CASE OF SUB-LICENSEE, THE CREDIT FOR TCS SHOULD ALS O BE GRANTED TO THE SUB-LICENSEE WHICH IN THE PRESENT CASE IS THE ASSES SEE SUBJECT TO THE CONDITION THAT NO CLAIM OF SUCH TCS HAVE BEEN MADE BY THE MAIN LICENSEE IN HIS INDIVIDUAL RETURN OF INCOME. FURTHE R THE ASSESSEE HAS REFERRED TO THE PROVISIONS OF SECTION 199 AND RULE 37BA AND THE VARIOUS DECISIONS RENDERED BY THE CO-ORDINATE BENCH AND SUB MITTED THAT NECESSARY CREDIT FOR TCS BE DIRECTED TO BE ALLOWED TO THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. FIRSTLY, IN THE PROCEEDINGS U/ S 154 OF THE ACT IN RESPONSE TO INTIMATION U/S 143(1), THERE HAS TO BE A MISTAKE APPARENT FROM RECORD WHICH SHOWS THAT THE ASSESSEE WAS ELIGI BLE FOR TCS BUT WAS NOT GRANTED THE CREDIT THEREOF. HOWEVER, IN THE INS TANT CASE, WE FIND THAT IN THE RETURN OF INCOME, THE ASSESSEE HAS CLAIMED T CS OF RS 1,84,650/- AND IN FORM NO. 26AS, THERE IS NO REFLECTION OF THE TCS IN THE NAME OF THE ASSESSEE. THEREFORE, THE VERY CLAIM OF THE ASSE SSEE HAS NO BASIS AS THERE IS NOTHING ON RECORD WHICH IS APPARENT AND WH ICH HAS ESCAPED THE ATTENTION OF THE DEPARTMENT IN NON-GRANTING THE TCS CREDIT. BESIDES THE CLAIM IN THE RETURN OF INCOME, THERE IS NOTHING ON RECORD AT THE TIME OF PROCESSING OF THE RETURN UNDER SECTION 143(1) WHICH SHOWS TCS HAS BEEN COLLECTED ON PAYMENTS TO THE ASSESSEE AND WHICH HAS NOT BEEN GRANTED TO THE ASSESSEE. FURTHER ON MERITS, WE FIND THAT T HERE IS NOTHING ON RECORD WHICH HAS BEEN SUBMITTED BY THE ASSESSEE TO DEMONSTRATE THAT THE CREDIT OF TCS HAS NOT BEEN CLAIMED BY THE MAIN LICENSEE IN THEIR INDIVIDUAL RETURN OF INCOME. FURTHER THE PROVISIONS OF RULE 37BA(2) ARE ALSO NOT FULFILLED IN THE INSTANT CASE. THEREFORE, THE DECISIONS RELIED UPON BY THE ASSESSEE ARE DISTINGUISHABLE ON FACTS AND DO ESNT SUPPORT THE CASE ITA NO. 296/JP/2018 SHRI KAMAL TAK, AJMER VS ITO, AJMER 4 OF THE ASSESSEE. WE ACCORDINGLY DO NOT SEE ANY INF IRMITY IN THE ORDER OF THE LD CIT(A) AND THE SAME IS HEREBY CONFIRMED. IN THE RESULT APPEAL SO FILED BY THE ASSESSEE IS HE REBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/09/2018. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 04/09/2018 *GANESH KR VKNS'K DH IZFRFYFI VXZSF'KR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT - SHRI KAMAL TAK, AJMER 2. IZR;FKHZ@ THE RESPONDENT - ITO, WARD-1(3), AJMER 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDRVIHY@ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 296/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT REGISTRAR