Pradip Krishen, New Delhi V. ACIT, New Delhi

ITA 4107/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7244 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 31-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 04-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S NEGI SENIOR
• Assessee Lawyers: SUDHIR GUPTA; KAMAL JETLEY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH F FF F : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT AND AND AND AND SHRI CHANDRA MOHAN GARG SHRI CHANDRA MOHAN GARG SHRI CHANDRA MOHAN GARG SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO . .. . 4107/DEL/2013 4107/DEL/2013 4107/DEL/2013 4107/DEL/2013 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2008 2008 2008 2008 - -- - 09 0909 09 SHRI PRADIP KRISHEN, SHRI PRADIP KRISHEN, SHRI PRADIP KRISHEN, SHRI PRADIP KRISHEN, 2A, KAUTILYA MARG, 2A, KAUTILYA MARG, 2A, KAUTILYA MARG, 2A, KAUTILYA MARG, CHANAKYAPU CHANAKYAPU CHANAKYAPU CHANAKYAPURI, RI,RI, RI, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. PAN : AABPK6963D. PAN : AABPK6963D. PAN : AABPK6963D. PAN : AABPK6963D. VS. VS. VS. VS. ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -32(1), 32(1), 32(1), 32(1), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KAMAL JETLEY, ADVOCATE AND SHRI SUDHIR GUPTA, FCA. RESPONDENT BY : SHRI R.S. NEGI, SENIOR D R. DATE OF HEARING : 31.05.2016 31.05.2016 31.05.2016 31.05.2016 DATE OF PRONOUNCEMENT : 27.06.2016 27.06.2016 27.06.2016 27.06.2016 ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP : :: :- -- - THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2008-0 9 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XXVI, N EW DELHI DATED 29 TH APRIL, 2013. 2. GROUND NO.1 OF THE ASSESSEES APPEAL READS AS UNDER:- THE LD CIT(A) ERRED IN LAW AND ON THE FACTS OF THIS CASE BY RESTRICTING THE CREDIT OF TDS TO THE APPELLANT ONLY OF RS.2,51,810/- (1/3 RD OF TOTAL TDS OF RS.7,55,432/- ON RENT) AS AGAINST THE TDS OF RS.7,55,432/- CLAIMED BY THE APPE LLANT ON THE RENTAL INCOME FROM THE PROPERTY 2, KAUTILYA MARG, CHANAKYA PURI, NEW DELHI FOR THE AY 2008-09. ITA-4107/DEL/2013 2 3. THE OTHER GROUNDS ARE ONLY ARGUMENTS IN SUPPORT OF ABOVE GROUND OF APPEAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND H AVE PERUSED THE MATERIAL PLACED BEFORE US. WE FIND THIS I SSUE TO BE COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF ITA T DELHI BENCH G IN THE CASE OF SUNITA DEVI VS. ACIT VIDE ITA NO.4 473/DEL/2012, ORDER DATED 21 ST AUGUST, 2015. IN THE ABOVE CASE ALSO, THE ASSESSEE HAD CLAIMED THE CREDIT FOR ENTIRE TDS THOUGH PART O F THE INCOME WAS DIVERTED TO SOME OTHER PERSON. THE REVENUE HAS ALLOWE D ONLY THE PROPORTIONATE CREDIT TO THE EXTENT OF INCOME ASSESSED I N THE HANDS OF THE ASSESSEE. THE ITAT DIRECTED TO ALLOW THE ENTIRE CR EDIT OF TDS SUBJECT TO VERIFICATION THAT NO CREDIT FOR TDS HAD B EEN CLAIMED AND ALLOWED IN THE HANDS OF THE PERSON TO WHOM THE INCOME HAS BEEN DIVERTED. THE RELEVANT FINDING OF THE ITAT WHICH I S IN PARAGRAPH 12 OF THE ORDER READS AS UNDER:- 12. FURTHER, THE DECISIONS OF THE TRIBUNAL IN CASES OF RENOVATION TECHNOLOGIES (SUPRA) AND SUPREME RENEWABLE ENERGY LTD. (SUPRA) ALSO SUPPORT THE STAND OF THE ASSESSEE. FURTHER, THE FACT THAT THE DEPARTMENT HAS NEITHER GI VEN CREDIT FOR THE TAX OF RS.12,23,608 TO THE ASSESSEE OR TO SHRI KAPIL AHLUWALIA NOR REFUNDED THE SAID SUM TO THE DED UCTOR. THE CONSTITUTION HAS NOT MANDATED THE DEPARTMENT TO SWALLOW THE RIGHTFUL MONEY OF THE TAX PAYER WITHOUT ANY RULE OF LAW. FURTHER, THE DEPARTMENTAL REPRESENTATI VE SUBMITTED THAT THERE IS POSSIBILITY THAT SHRI KAPIL AHL UWALIA MIGHT HAVE TAKEN CREDIT OF THE BALANCE RS.12,23,608/ - AND THEREFORE IF CREDIT OF THIS AMOUNT IS ALLOWED TO THE ASSESSEE, IT WILL AMOUNT TO ALLOWING OF DOUBLE CREDIT O F THE SAME ACCOUNT AND IT WILL BE UNJUST ENRICHMENT IN THE HANDS OF ASSESSEE. THE LD. AR HOWEVER, COUNTERED THE ARGUMEN T OF THE DR AND STATED THAT THE TDS CERTIFICATE HAS BEE N ISSUED TO THE ASSESSEE ONLY AND AS PER DATA BASE OF INCOME-TAX DEPARTMENT, THE TDS IS REFLECTING AGAINST THE ASSESSEE ONLY, THEREFORE ALLOWING CREDIT IN THE HANDS OF SHRI KAPIL AHLUWALIA WAS NOT POSSIBLE. HE FURTHER SUBM ITTED ITA-4107/DEL/2013 3 THAT SH. KAPIL AHLUWALIA IS LIABLE TO PAY TAX ON THE INCOME TRANSFERRED TO HIM, AND THEREFORE, NOT ALLOWING CRED IT OF RS.12,23,608/- TO THE ASSESSEE AND RETAINING THE AMOUNT BY THE INCOME-TAX DEPARTMENT WITHOUT GIVING ADJUSTME NT TO EITHER ASSESSEE OR SH. KAPIL AHLUWALIA AMOUNTS TO UNJ UST ENRICHMENT IN THE HANDS OF THE DEPARTMENT. WE AGREE WITH THE ABOVE CONTENTION OF THE LD. AUTHORIZED REPRESENT ATIVE. WE ARE OF THE VIEW THAT NEITHER PARTY SHOULD BE MADE UNJUST ENRICHED AT THE COST OF THE OTHER. WE HOLD TH AT THE CREDIT OF THE RS.12,23,608/- IS ALLOWABLE IN THE HAND S OF THE ASSESSEE, IN VIEW OF THE CLEAR PROVISIONS OF SUB SECTION (1 ) OF SECTION 199 OF THE ACT AND RULES MADE THEREUNDER. HOWEVER, WE DIRECT THE ASSESSING OFFICER TO VERIFY WHET HER ANY CREDIT OF THE TDS OF RS.12,23,608/- HAS BEEN ALLO WED BY THE INCOME-TAX DEPARTMENT IN THE HANDS OF SHRI KA PIL AHLUWALIA OR NOT. IF IT HAS BEEN NOT ALLOWED, THEN THE CREDIT OF THIS AMOUNT SHOULD BE GIVEN IN THE HANDS OF THE ASSESSEE. ACCORDINGLY GROUND NO.1 OF THE ASSESSEE IS ALLOWED. 5. RESPECTFULLY FOLLOWING THE ABOVE DECISION OF ITAT , WE HOLD THAT THE ENTIRE CREDIT FOR THE TDS MADE BE ALLOWED IN TH E HANDS OF THE ASSESSEE SUBJECT TO VERIFICATION THAT NO CREDIT FOR THE TDS IS CLAIMED BY THE CO-OWNERS OF THE PROPERTY. WE DIRECT THE ASSESSING OFFICER TO VERIFY WHETHER ANY CREDIT FOR TDS HAS BEEN MADE BY C O-OWNERS TO WHOM 1/3 RD OF THE RENTAL INCOME IS TRANSFERRED AND, IF NO CREDI T FOR TDS IS CLAIMED BY THEM, THEN THE ENTIRE CREDIT FOR TDS B E ALLOWED IN THE HANDS OF THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DEEMED TO BE ALLOWED AS ABOVE. DECISION PRONOUNCED IN THE OPEN COURT ON 27.06.2016. SD/- SD/- (CHANDRA MOHAN GARG (CHANDRA MOHAN GARG (CHANDRA MOHAN GARG (CHANDRA MOHAN GARG ) )) ) ( (( ( G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. ITA-4107/DEL/2013 4 COPY FORWARDED TO: - 1. APPELLANT : SHRI PRADIP SHRI PRADIP SHRI PRADIP SHRI PRADIP KRISHEN, KRISHEN, KRISHEN, KRISHEN, 2A, KAUTILYA MARG, CHANAKYAPURI, 2A, KAUTILYA MARG, CHANAKYAPURI, 2A, KAUTILYA MARG, CHANAKYAPURI, 2A, KAUTILYA MARG, CHANAKYAPURI, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. 2. RESPONDENT : ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -32(1), NEW DELHI. 32(1), NEW DELHI. 32(1), NEW DELHI. 32(1), NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR