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ITA 4581/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 77609 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 04-03-2014
• Assessment Year: 2001-2002
• Appeal Filed On: 02-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMEER SHARMA
• Assessee Lawyers: SALIL AGARWAL SHAILESH GU PTA
• Section: 143(3); 154

Judgement Text

ITA NO. 4581/DEL/2013 ASSTT.YEAR: 2001-02 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `H NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER I.T.A.NO.4581/DEL/2013 ASSESSMENT YEAR : 2001-02 THOMSON PRESS (INDIA) LTD., VS DY.COMMISSIO NER OF INCOME TAX, K-9, CONNAUGHT CIRCUS, CENTRAL C IRCLE-16(1), NEW DELHI. N EW DELHI. (PAN: AAACT4827F) (APPELLANT) (RESPONDENT) APPELLANT BY: S/SHRI SAL IL AGARWAL, SHAILESH GUPTA RESPONDENT BY : SHRI SAMEER SHARMA, SR.DR O R D E R PER CHANDRAMOHAN GARG, J.M. THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGA INST THE ORDER OF COMMISSIONER OF INCOME TAX(A)-XIX, NEW DELHI DATED 26.08.2011 IN APPEAL NO. 104/2010-11 FOR AY 2001-02. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS IN THI S APPEAL:- 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS GROSSLY ERRED BOTH IN LAW AND ON FACT S IN DISMISSING THE APPEAL OF THE APPELLANT COMPANY AGAI NST THE ORDER PASSED BY ASSESSING OFFICER UNDER SECTION 154/ I 43( 1) OF THE ACT DATED 06.12.2010. 1.1 THAT IN DOING SO, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IGNORED THE BASIC FACT THAT APPELLANT COMPANY CLAIMED CREDIT OF TAX DEDUCTED AT ITA NO. 4581/DEL/2013 ASSTT.YEAR: 2001-02 2 SOURCE AMOUNTING TO RS. 11,38, 821/- WHICH WERE DU LY DEDUCTED BY DEDUCTORS PRIOR TO FILING OF RETURN OF INCOME BUT CLAIMED BY THE APPELLANT COMPANY WHEN SUCH TDS CERTIFICATES WERE ACTUALLY RECEIVED BY THE APPELLAN T COMPANY I.E. SUBSEQUENT TO THE FILING OF RETURN OF INCOME AND THUS, THE TAX WAS ACTUALLY DEDUCTED AND AS SUCH . CREDIT OF TDS SHOULD HAVE BEEN ALLOWED BY THE LEARN ED COMMISSIONER OF INCOME TAX (APPEALS). 2 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED BOTH IN LAW AND ON FACT S IN PLACING ITS RELIANCE ON THE PROVISIONS OF SECTION O F SECTION 155 (14) OF THE ACT, AND DISMISSING THE APPEAL OF T HE APPELLANT COMPANY, AS THE AMOUNT OF TDS WAS NOT CLAIMED IN THE RETURN OF INCOME. 2.1 THAT IN DOING SO, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IGNORED THE BASIC FACT THAT PROVISIONS OF SECTION 155 (14) OF THE ACT, ARE PER SE INAPPLICABLE FOR THE IMPUGNED ASSESSMENT YEAR, AS T HE SAID SECTION WAS BROUGHT INTO STATUTE BOOKS BY FINA NCE ACT 2002, I.E. FOR A Y 200203 AND ONWARDS AND THUS , THE RELIANCE PLACED BY LEARNED COMMISSIONER OF INCOME T AX (APPEALS) ON THE PROVISIONS OF SECTION 155 (14) OF THE ACT, IS WHOLLY MISCONCEIVED AND MISPLACED IN LAW AND THU S, THE CREDIT OF THE TDS AMOUNTING TO RS. 11,38,821/- SHOULD HAVE BEEN GIVEN TO THE APPELLANT COMPANY. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) GROSSLY ERRED IN LAW AND ON FACTS IN GIVI NG PREFERENCE TO TECHNICAL CONSIDERATIONS OVER THE CAU SE OF SUBSTANTIAL JUSTICE, AS INSTEAD OF GOING INTO HYPER TECHNICALITIES, THE CORRECT TAX CREDIT AMOUNTING TO RS. 11,38,821/- SHOULD HAVE BEEN GIVEN TO THE APPELLANT COMPANY. 3. BRIEFLY STATED, THE FACTS GIVING RISE TO THIS AP PEAL ARE THAT THE ASSESSING OFFICER COMPLETED ASSESSMENT U/S 143(1)(A ) OF THE INCOME TAX ITA NO. 4581/DEL/2013 ASSTT.YEAR: 2001-02 3 ACT, 1961(FOR SHORT THE ACT) ON 25.02.2003 BY ACCEP TING INCOME OF RS.15,11,95,920/- AS RETURNED BY THE ASSESSEE. SUB SEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY FOR VERIFICATION OF INCREASE IN UNSECURED LOANS, ADDITIONS MADE IN FIXED ASSETS AND CLAIM OF DEDUCTION U/S 80H HC OF THE ACT. DURING THE ASSESSEMENT PROCEEDINGS U/ 143(3) OF THE ACT, T HE RELEVANT DETAILS HAD BEEN CALLED BY THE ASSESSING OFFICER AND ISSUES REG ARDING ABOVE MENTIONED POINTS WERE EXAMINED BY THE ASSESSING OFFICER AND F OUND TO BE CORRECT. FINALLY, THE ASSESSING OFFICER AGAIN ACCEPTED THE R ETURNED INCOME OF THE ASSESSEE AND THE SUBSEQUENT ASSESSMENT MADE U/S 143 (3) OF THE ACT ON 19.03.2004. 4. SUBSEQUENTLY, THE ASSESSEE FILED AN APPLICATION U/S 154 OF THE ACT STATING THAT THE DEPARTMENT HAS ALLOWED SHORT CREDI T OF TDS AND MOREOVER CHARGED EXCESSIVE TAXES WRONGLY. IN THIS APPLICATI ON U/S 154 OF THE ACT, THE ASSESSEE ALSO REQUESTED TO ALLOW ADDITIONAL CREDIT OF VARIOUS TDS CERTIFICATES WHICH WERE NOT CLAIMED WHILE FILING THE ORIGINAL RE TURN OF INCOME. THIS APPLICATION OF THE ASSESSEE WAS REJECTED BY THE ASS ESSING OFFICER VIDE ORDER DATED 06.10.2012 BY HOLDING THAT ON GOING THROUGH T HE RECORD, IT IS FOUND THAT THE CONTENTION IN RESPECT OF SHORT TDS AND WRO NG CALCULATION OF TAX IS CORRECT SINCE MISTAKE APPARENT FROM THE RECORD WAS RECTIFIED. BUT THE ASSESSING OFFICER DENIED CREDIT OF THE ADDITIONAL T DS CERTIFICATES BY HOLDING ITA NO. 4581/DEL/2013 ASSTT.YEAR: 2001-02 4 THAT SINCE THE ASSESSEE HAD NOT CLAIMED THE TDS CER TIFICATES WHILE FILING A RETURN, THEREFORE, THE SAME WAS NOT ACCEPTABLE. 5. BEING AGGRIEVED BY THE ABOVE ORDER DATED 06.12.2 010, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF INCO ME TAX(A) WHICH WAS ALSO DISALLOWED WITH FOLLOWING OBSERVATIONS AND FIN DINGS: 5. I HAVE GONE THROUGH THE IMPUGNED ORDER AND THE WRITTEN SUBMISSIONS OF THE AR. 6. THE ASSESSEE COMPANY HAS FILED ITS INCOME TAX R ETURN FOR THE AY 2001-02 ON 31.01.2001 VIDE ACKNOWLEDGEME NT NUMBER 1593. BEFORE THE DATE OF FILING ITS RETURN OF INCOME FOR THE AY 2001-02 THE ASSESSEE COMPANY HAD RECEIVED TDS CERTIFICATES AMOUNTING TO RS.1,42,31,1 10/- AND HAD FILED THE SAME ALONG WITH ITS RETURN OF INC OME. AFTER FILING RETURN OF INCOME THE ASSESSEE COMPANY HAS RECEIVED ADDITIONAL TDS CERTIFICATES AMOUNTING TO RS.11,38,221/- WHICH THOUGH DEDUCTED BY THE DEDUCTO R BEFORE THE DATE OF FILING OF RETURN BUT TDS CERTIFI CATES WERE RECEIVED BY THE ASSESSEE COMPANY AFTER THE DAT E OF FILING OF ITS RETURN OF INCOME. THESE TDS CERTIFIC ATES HAVE BEEN CLAMED U/S 155(14) BY WAY OF SEPARATE APPLICATIONS AS UNDER:- S.NO. DATE OF FILING OF APPLICATION AMOUNT OF TDS CERTIFICATES (RS.) 1 03.01.2003 1039770/- 2 10.03.2003 2609/- 4 27.05.2004 12073/- 5 07.11.2005 50514/- TOTAL 1138821/- 6. THE PROVISIONS OF S. 155(14) ARE AS UNDER:- ITA NO. 4581/DEL/2013 ASSTT.YEAR: 2001-02 5 (14)WHERE IN THE ASSESSMENT FOR ANY PREVIOUS YEAR OR IN ANY INTIMATION OR DEEMED INTIMATION UNDER SUB-SECTI ON (1) OF SECTION 143 FOR ANY PREVIOUS YEAR, 28 [CREDIT FOR TAX DEDUCTED OR COLLECTED IN ACCORDANCE WITH THE PROVIS IONS OF SECTION 199 OR, AS THE CASE MAY BE, SECTION 206C] H AS NOT BEEN GIVEN ON THE GROUND THAT THE CERTIFICATE FURNI SHED UNDER SECTION 203 29 [OR SECTION 206C] WAS NOT FILED WITH THE RETURN AND SUBSEQUENTLY SUCH CERTIFICATE IS PRODUCED BEFOR E THE ASSESSING OFFICER WITHIN TWO YEARS FROM THE END OF THE ASSESSMENT YEAR IN WHICH SUCH INCOME IS ASSESSABLE, THE ASSESSING OFFICER SHALL AMEND THE ORDER OF ASSESSME NT OR ANY INTIMATION OR DEEMED INTIMATION UNDER SUB-SECTI ON (1) OF SECTION 143, AS THE CASE MAY BE, AND THE PROVISI ONS OF SECTION 154 SHALL, SO FAR AS MAY BE, APPLY THERETO. 7. THE AR HAS FAIRLY ADMITTED THAT THERE WAS NO ME NTION OF THE TDS CLAIM IN RESPECT OF TDS CERTIFICATES FOR RS.11,38.821/- N QUESTION. ON CAREFUL CONSIDERATIO N OF THE PROVISIONS OF THE S.155(14), THE CREDIT FOR TDS CAN BE GIVEN ONLY IF THERE IS CLAIM IN THE RETURN FILED AND ALSO IF THE TDS CERTIFICATES ARE FILED WITHIN TWO YEARS FROM THE AS SESSMENT YEAR. IN THIS CASE THERE WAS NO SUCH CLAIM. HENCE THE ACTION OF THE ASSESSING OFFICER IS APPROVED. GROUND NO. 2 & 2.1 6. APROPOS THESE GROUNDS, WE HAVE HEARD BOTH THE PA RTIES AND CAREFULLY PERUSED THE RECORD, SPECIALLY RELEVANT PROVISIONS O F SECTION 155(14) OF THE ACT. LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT TH E PROVISION OF SECTION 155(14) OF THE ACT WAS BROUGHT INTO STATUTE BY FINA NCE ACT 2002 W.E.F. 1.6.2002 AND THUS, THE COMMISSIONER OF INCOME TAX(A ) WRONGLY PLACED RELIANCE ON THIS PROVISION IN THE IMPUGNED ORDER IN DISALLOWING LEGAL ITA NO. 4581/DEL/2013 ASSTT.YEAR: 2001-02 6 CONTENTIONS OF THE ASSESSEE. REPLYING TO THE ABOVE , LD. DR FAIRLY ACCEPTED THAT THE PROVISIONS OF SECTION 155(14) OF THE ACT A RE APPLICABLE W.E.F. 1.6.2002. 7. IN VIEW OF ABOVE, WE HOLD THAT THE COMMISSIONER OF INCOME TAX(A) IN PARA 8 OF THE IMPUGNED ORDER WRONGLY PLACED RELI ANCE ON THE PROVISIONS OF SECTION 155(14) OF THE ACT WHICH WAS NOT APPLICABLE TO THE ASSESSMENT YEAR OF THE PRESENT CASE I.E. 2001-02. HENCE, GROUND NO . 2 AND 2.1 OF THE ASSESSEE ARE ALLOWED. GROUND NO. 1, 1.1 AND 3 8. APROPOS THESE GROUNDS, LD. COUNSEL OF THE ASSESS EE SUBMITTED THAT THE COMMISSIONER OF INCOME TAX(A) HAS GROSSLY ERRED BOT H IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE ASSESSEE AND UPHOLD ING THE ORDER DATED 06.12.2010 PASSED BY THE ASSESSING OFFICER U/S 154 AND 143(1) OF THE ACT. LD. COUNSEL FURTHER CONTENDED THAT THE COMMISSIONER OF INCOME TAX(A) IGNORED THE BASIC FACT THAT THE ASSESSEE COMPANY CL AIMED CREDIT OF TAX DEDUCTED AT SOURCE WHICH WERE DULY DEDUCTED BY THE DEDUCTORS PRIOR TO FILING OF RETURN OF INCOME BUT THE SAME WAS CLAIMED BY THE APPELLANT COMPANY WHEN SUCH TDS CERTIFICATES WERE ACTUALLY RECEIVED B Y THE ASSESSEE I.E. SUBSEQUENT TO THE FILING OF RETURN OF INCOME AND, T HEREFORE, THE TAX WAS ITA NO. 4581/DEL/2013 ASSTT.YEAR: 2001-02 7 ACTUALLY DEDUCTED AND AS SUCH CREDIT OF TDS SHOULD HAVE BEEN GIVEN TO THE ASSESSEE INSTEAD OF GOING INTO HYPER TECHNICAL APPR OACH. 9. SINCE BY FIRST PART OF THIS ORDER, WE HAVE HELD THAT THE PROVISIONS OF SECTION 155(14) OF THE ACT ARE NOT APPLICABLE TO TH E PRESENT CASE WHICH IS RELATED TO AY 2001-02, UNDISPUTEDLY THE ASSESSEE CO MPANY REQUESTED TO ALLOW ADDITIONAL CREDIT OF VARIOUS TDS CERTIFICATES WHICH WERE NOT CLAIMED WHILE FILING THE RETURN OF INCOME AND THIS REQUEST MADE U/S 154 OF THE ACT WAS REJECTED BY THE ASSESSING OFFICER BY HOLDING TH AT THE ASSESSEE HAS NOT CLAIMED THE TDS CERTIFICATE WHILE FILING OF RETURN WHICH IS NOT A PROPER AND JUSTIFIED APPROACH. UNDISPUTEDLY, THE ASSESSEE OF FERED RETURNED INCOME OF RS.15,11,95,920 WHICH INCLUDES THE INCOME OF THE AS SESSEE ON WHICH TDS WAS DEDUCTED AT SOURCE BY THE PAYER, HOWEVER, IT IS PERTINENT TO NOTE THAT THE CLAIM OF TDS WAS MADE WHILE FILING OF RETURN BECAUS E THE TDS CERTIFICATES WERE NOT RECEIVED BY THE ASSESSEE TILL THAT TIME. ON THIS POINT, LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT UNTIL AND UNLESS THE TD S CERTIFICATES ARE PHYSICALLY RECEIVED BY THE ASSESSEE, THE CLAIM OF T DS CANNOT BE MADE RATHER IT IS IMPRACTICABLE TO PLACE THE CLAIM OF TDS FOR W HICH THE CERTIFICATES HAVE NOT BEEN RECEIVED BY THE ASSESSEE TILL THE DATE OF FILING OF RETURN. THE DR FAIRLY ACCEPTED THAT RETURNED INCOME INCLUDES INCOM E OF THE ASSESSEE ON ITA NO. 4581/DEL/2013 ASSTT.YEAR: 2001-02 8 WHICH TDS WAS DEDUCTED BY THE PAYER AND CERTIFICATE S WERE ISSUED AFTER FILING OF RETURN. 10. IN VIEW OF ABOVE, WE ARE OF THE CONSIDERED OPIN ION THAT THE ENDS OF JUSTICE WOULD BE MET IF CLAIM OF THE ASSESSEE IN RE GARD TO CREDIT OF ADDITIONAL TDS CERTIFICATES IS RESTORED TO THE FILE OF ASSESSI NG OFFICER FOR VERIFICATION AND EXAMINATION ON THIS PARTICULAR POINT THAT WHETH ER THE INCOME IN REGARD TO ADDITIONAL TDS CERTIFICATES IS INCLUDED IN THE RETU RNED INCOME OF THE ASSESSEE. THE ASSESSING OFFICER SHALL DECIDE THE I SSUE BY AFFORDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE AND ASSESSEE SHALL COOPERATE WITH THE RELEVANT PROCEEDINGS. WITH THESE DIRECTIONS TO THE ASSESSING OFFICER, MAIN GROUNDS OF THE ASSESSEE ARE DISPOSED OF AND MAY BE DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DE EMED TO BE ALLOWED IN THE MANNER AS ABOVE FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17.4.2014. SD/- SD/- (G.D. AGRAWAL) (CHANDRA MOHAN GARG) VICE PRESIDENT JUDICIAL MEMBER DT. 17 TH APRIL 2014 GS ITA NO. 4581/DEL/2013 ASSTT.YEAR: 2001-02 9 COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR