ITO 1(3)(4), MUMBAI V. I.T.D CEMENTATION INDIA LTD, MUMBAI

ITA 4185/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4076 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2004-2005
• Appeal Filed On: 14-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P SINGH
• Keywords: Revised return
• Section: 144; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI .. , !'# $ $ $ $ ! %, & !'# !' BEFORE SHRI P.M. JAGTAP, AM AND SHRI SANJAY GARG, J M !./ I.T.A. NO. 4185 /MUM/2012 ( &) % $*% &) % $*% &) % $*% &) % $*% / / / / ASSESSMENT YEAR : 2004-05) ASSTT. COMMISSIONER OF INCOME TAX 10(1), 455, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. MARG, MUMBAI 400 020. ) ) ) ) / VS. M/S I.T.D. CEMENTATION INDIA LTD., IST FLOOR, DANI WOOLTEX COMPOUND, 158, VAIDYANARI MARG, KALIAN, SANTACRUZ (E), MUMBAI 400 098. #+ !./ PAN : AAACT1426A ( +, / // / APPELLANT ) .. ( -.+, / RESPONDENT ) +, / 0 ! / APPELLANT BY : SHRI O.P. SINGH -.+, / 0 ! / RESPONDENT BY : SHRI VIJAY MEHTA !)$ / / // / DATE OF HEARING : 15-07-2013 12* / / DATE OF PRONOUNCEMENT : 19-07-13 '3 / O R D E R PER P.M. JAGTAP, A.M . : THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A) 21, MUMBAI DATED 01-03-2012 AND THE GR IEVANCE OF THE REVENUE IS PROJECTED IN THE FOLLOWING GROUND RAISED THEREIN :- ON THE FACTS IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN ALLOWING APPEAL ON AN ORDER U/S 154 OF THE I.T. ACT , MADE BY THE A.O. SAYING THAT IT IS NOT NECESSARY THAT THE CREDIT OF TDS AND OTHER TAXES ITA 4185/MUM/2012 2 SHOULD BE MADE IN THE RETURN OF INCOME WITHOUT APPR ECIATING THAT IT IS NOT A MISTAKE APPARENT FROM RECORD LIABLE FOR RECTI FICATION. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY W HICH IS ENGAGED IN THE BUSINESS OF CONSTRUCTION OF ROAD, BRIDGES, TUNNELS , PORTS AND JETTIES ETC. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION I .E. 2004-05 WAS FILED BY IT ON 31-10-2004 DECLARING TOTAL INCOME AT NIL. IN T HE ASSESSMENT COMPLETED U/S 144 OF THE INCOME TAX ACT, 1961 (THE ACT) VIDE AN ORDER DTD. 28-12-2006, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE A.O. AT RS. 36,96,59,100/-. PRIOR TO THIS, THE ASSESSMENT IN T HE CASE OF THE ASSESSEE WAS COMPLETED BY THE A.O. FOR A.Y. 2003-04 WHEREIN THE CLAIM OF THE ASSESSEE FOR CREDIT ON ACCOUNT OF TDS WAS DISALLOWED BY THE A.O. TO THE EXTENT OF RS. 96,57,391/- ON THE GROUND THAT THE SAME WAS PERTAIN ING TO A.Y. 2004-05. IN THE ASSESSMENT COMPLETED FOR A.Y. 2004-05, THE CRED IT FOR THE SAID TDS WAS NOT GIVEN BY THE A.O. THE ASSESSEE, THEREFORE, MOV ED AN APPLICATION U/S 154 OF THE ACT CLAIMING CREDIT FOR THE SAID TDS. THE A .O. DISALLOWED THE SAID CLAIM OF THE ASSESSEE ON THE GROUND THAT THE CREDIT FOR T DS WAS NOT CLAIMED BY THE ASSESSEE EITHER IN THE ORIGINAL RETURN OR IN THE RE VISED RETURN FILED FOR THE A.Y. 2004-05. ACCORDINGLY, THE APPLICATION FILED BY THE ASSESSEE U/S 154 OF THE ACT WAS REJECTED BY THE A.O. VIDE AN ORDER DATED 19-5-2 011. 3. AGAINST THE ORDER PASSED BY THE A.O. U/S 154 OF THE ACT, APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A). AF TER CONSIDERING THE SUBMISSIONS MADE ON BEHALF OF THE ASSESSEE AS WELL AS MATERIAL AVAILABLE ON RECORD BEFORE HIM, THE LD. CIT(A) DIRECTED THE A.O. TO ALLOW THE CREDIT FOR TDS AS CLAIMED BY THE ASSESSEE FOR THE FOLLOWING REASON S GIVEN IN PARA 3.3 OF HIS IMPUGNED ORDER:- I HAVE CONSIDERED THE FACTS OF THE CASE. IN THE A. Y. 2003-04 THE APPELLANT CLAIMED CREDIT TO TDS AMOUNTING TO RS.1,0 7,18,533/-. IN THE ORDER PASSES U/S.154 OF THE ACT DTD.19.03.2008 THE A.O. HIMSELF VERIFIED AND ADMITTED THAT THE TDS AMOUNTING TO RS. 10,61,142/- WAS PERTAINING TO A.Y.2003-04 AND THE BALANCE TDS CERTI FICATES WERE PERTAINING TO A.Y.2004-05. THE A.O. HAS REJECTED AP PELLANTS REQUEST ON ITA 4185/MUM/2012 3 THE GROUND THAT THE CLAIM OF SUCH TDS WAS NEITHER M ADE IN ORIGINAL NOR IN REVISED RETURN OF INCOME. I AM NOT IN AGREEMENT WITH THE A.O. IT IS NOT NECESSARY THAT THE CREDIT OF TDS AND OTHER TAXE S SHOULD BE MADE IN THE RETURN OF INCOME ESPECIALLY WHEN TAXES WERE PAI D OR TDS CERTIFICATES WERE RECEIVED AFTER FILING OF RETURN OF INCOME. THE PAYMENT OF TAXES MADE AT ANY TIME CAN BE CLAIMED DURING ASSESSMENT P ROCEEDINGS. SINCE THE A.O. HIMSELF HAS VERIFIED AND ADMITTED THAT THE CREDIT OF BALANCE TDS PERTAINS TO A.Y.2004-05, THEREFORE, THE A.O. IS DIRECTED TO ALLOW CREDIT OF SUCH BALANCE TDS CERTIFICATES, IN THE YEA R UNDER CONSIDERATION. THIS GROUND OF APPEAL IS ALLOWED. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE REVE NUE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN OUR OPINI ON, WHEN THE CLAIM OF THE ASSESSEE FOR CREDIT ON ACCOUNT OF TDS AMOUNTING TO RS. 96,57,391/- WAS NOT ALLOWED BY THE A.O. IN THE ASSESSMENT COMPLETED FOR A.Y. 2003-04 ON THE GROUND THAT THE SAME WAS PERTAINING TO A.Y. 2004-05 , THE A.O. SHOULD HAVE ALLOWED THE SAID CREDIT IN A.Y. 2004-05 WHICH HE FA ILED TO DO. THERE WAS THUS A MISTAKE APPARENT FROM RECORD IN THE ASSESSMENT OR DER PASSED BY THE A.O. FOR A.Y. 2004-05 WHICH, IN OUR OPINION, OUGHT TO HA VE BEEN RECTIFIED BY THE A.O. WHEN THE APPLICATION U/S 154 OF THE ACT WAS FI LED BY THE ASSESSEE SEEKING SUCH RECTIFICATION. THE A.O., HOWEVER, DID NOT ALLOW THE CLAIM OF THE ASSESSEE FOR CREDIT ON ACCOUNT OF TDS AND REJECTED THE APPLICATION FILED BY THE ASSESSEE U/S 154 OF THE ACT ON THE GROUND THAT THE SAID CREDIT WAS NOT CLAIMED BY THE ASSESSEE EITHER IN THE ORIGINAL RETU RN OR IN THE REVISED RETURN. IN OUR OPINION, WHEN THE SAID CREDIT WAS CLAIMED BY THE ASSESSEE IN THE RETURN OF INCOME FILED BY THE ASSESSEE FOR A.Y. 200 3-04, MAKING THE SAME CLAIM AGAIN IN THE RETURN FOR A.Y. 2004-05 WOULD HA VE RESULTED IN CLAIMING DOUBLE BENEFIT AND THE A.O. IN ANY CASE WAS NOT JUS TIFIED IN REJECTING THE CLAIM OF THE ASSESSEE FOR TDS CREDIT ON THIS GROUND ESPEC IALLY WHEN HE HIMSELF HAD FOUND IN THE ASSESSMENT FOR A.Y. 2003-04 THAT TDS C REDIT TO THE EXTENT OF RS. 96,57,391/- WAS PERTAINING TO A.Y. 2004-05. WE, TH EREFORE, FIND NO INFIRMITY IN THE IMPUGNED ORDER OF THE LD. CIT(A) DIRECTING T HE A.O. TO ALLOW THE SAID ITA 4185/MUM/2012 4 CREDIT FOR TDS AS CLAIMED BY THE ASSESSEE BY WAY OF AN APPLICATION U/S 154 OF THE ACT AND UPHOLDING HIS IMPUGNED ORDER ON THIS IS SUE, WE DISMISS THIS APPEAL OF THE REVENUE. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. 4 5 #$ / 4 / 67 ORDER PRONOUNCED IN THE OPEN COURT ON 19-07-13. . '3 / 12* 8')5 19-07-13 2 / SD/- SD/ (SANJAY GARG) (P.M. JAGTAP ) & !'# JUDICIAL MEMBER !'# / ACCOUNTANT MEMBER MUMBAI ; 8') DATED 19-07-13 $.&).!./ RK , SR. PS '3 / -&9: ;:* '3 / -&9: ;:* '3 / -&9: ;:* '3 / -&9: ;:*/ COPY OF THE ORDER FORWARDED TO : 1. +, / THE APPELLANT 2. -.+, / THE RESPONDENT. 3. < () / THE CIT(A)- 21, MUMBAI 4. < / CIT MC-X MUMBAI 5. :$? -&&) , , / DR, ITAT, MUMBAI I BENCH 6. @% A / GUARD FILE. '3)! '3)! '3)! '3)! / BY ORDER, !.: -& //TRUE COPY// B B B B/ // /!6 !6 !6 !6 ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI