MAZAGON DOCK LTD, MUMBAI V. ACIT CIR 6(3), MUMBAI

ITA 4981/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7612 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 27-02-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 15-06-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PRAVIN VARMA
• Assessee Lawyers: ARVIND SONDE
• Keywords: Recovery proceedings; Earning of tax free income
• Section: 14A; 145

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B , MUMBAI BEFORE SHIRI G.E. VEERABHADRAPPA, HONBLE PRESIDENT AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ITA NO. : 4981/MUM/2010 ASSESSMENT YEAR : 2006-07 M/S. MAZAGON DOCK LTD. DOCKYARD ROAD, MAZAGON, MUMBAI-400 010 PAN NO: AAACM 8029 J VS. ACIT - 6(2) RM NO.522, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400 010 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ARVIND SONDE RESPONDENT BY : SHRI PRAVIN VARMA DATE OF HEARING : 01.03.2012 DATE OF P RONOUNCEMENT : 28 .03.2012 ORDER PER AMIT SHUKLA (J.M.) : THE PRESENT APPEAL HAS BEEN FILED BY THE APPELLANT AGAINST THE ORDER DATED 26.02.2010 PASSED BY THE LEARNED CIT(AP PEALS)-12, MUMBAI FOR THE QUANTUM OF ASSESSMENT PASSED U/S.143(3) FOR THE ASSESSMENT YEAR 2006-07. THE APPELLANT HAS RAISED THE FOLLOWI NG GROUNDS OF APPEAL TO CHALLENGE THE SAID ORDER :- 1. THE LEARNED. COMMISSIONER OF INCOME-TAX (APPEAL S) ERRED IN NOT DELETING THE ENTIRE DISALLOWANCE U/S.1 4A BUT DIRECTING THE ASSESSING OFFICER TO COMPUTE THE DISA LLOWANCE AS PER RULE 8D AND CONSIDER THE SAID AMOUNT AS EXPENDI TURE INCURRED IN RELATION TO EXEMPT INCOME AND DISALLOWI NG THE SAME U/S.14A. YOUR APPELLANTS SUBMIT THAT THE LEAR NED CIT(A) OUGHT TO HAVE DELETED THE ENTIRE DISALLOWANC E U/S.14A. ITA NO : 4981/MUM/2010 M/S. MAZAGON DOCK LTD.. 2 2. THE LEARNED CIT(APPEALS) ERRED IN CONFIRMING THE DISALLOWANCE OF `. 3,01,372/- BEING EMPLOYEES CONTRIBUTION TO PROVIDENT FUND U/S. 2(24)(X) R.W.S. 36(I)(VA) ON AC COUNT OF DELAY IN PAYMENT OF THE SAME. YOUR APPELLANTS SUBM IT THAT THE DEDUCTION OF `. 3,01,372/- IS ALLOWABLE AND OUGHT TO HAVE ALLOWED TO THEM. 3. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ACTIO N OF THE AO OF NOT GRANTING CREDIT FOR TAX DEDUCTED AT SOURC E AMOUNTING TO `. 49,41,62,0132/-. YOUR APPELLANTS SUBMIT THAT THEY ARE ENTITLED TO THE FULL CREDIT OF TDS AS CLAIMED AND T HE SAME OUGHT TO HAVE BEEN ALLOWED TO THEM. 2. THE APPELLANT IS A 100% GOVERNMENT OF INDIA UNDE RTAKING UNDER THE MINISTRY OF DEFENCE AND IS PRIMARILY ENGAGED IN THE CONSTRUCTION OF WARSHIPS AND SUBMARINES FOR INDIAN NAVY AND ALSO CA RRYING OUT WORK OF SHIP REPAIR AND GENERAL ENGINEERING. 3. IN GROUND NO.1, THE APPELLANT HAS CHALLENGED THE DISALLOWANCE OF EXPENSES MADE U/S.14A AFTER APPLYING THE PROVISIONS OF RULE 8D. 3.1 THE ASSESSING OFFICER NOTED THAT THE APPELLANT, ON ONE HAND, HAS CLAIMED DIVIDEND INCOME OF `. 3,02,26,680/- AS EXEMPT U/S.10(34) AND, ON THE OTHER HAND, HAS NOT ATTRIBUTED ANY EXPENDITU RE TOWARDS EARNING OF EXEMPT INCOME U/S.14A. IN RESPONSE TO THE SHOW CAUSE NOTICE AS TO WHY THE DISALLOWANCE U/S.14A MAY NOT BE MADE, THE A PPELLANT SUBMITTED THAT IT HAS MADE INVESTMENT IN THE SHARES OF GOA SH IPYARD LIMITED (GSL), WHICH IS A NON-LISTED PUBLIC UNDERTAKING AND INVES TMENT WAS MADE IN PROGRESSIVE MANNER UPTO THE ASSESSMENT YEAR 1992-93 . THIS WAS A BUSINESS INVESTMENT AND GSL WAS ASSESSEES SUBSIDIA RY UPTO 1992-93 WHICH LATER ON CEASED TO BE ITS SUBSIDIARY. THESE INVESTMENTS WERE MADE PRIOR TO THE PERIOD WHEN DIVIDEND INCOME WAS TAXABL E, THEREFORE, IT CANNOT BE SAID THAT THE INVESTMENTS HAVE BEEN MADE TO EARN TAX FREE INCOME. EVEN THE APPELLANT HAS NEITHER SOLD NOR PUR CHASED ANY SHARES ITA NO : 4981/MUM/2010 M/S. MAZAGON DOCK LTD.. 3 DURING THE YEAR AND, THEREFORE, NO MONEY AND TIME H AS BEEN SPENT BY THE MANAGEMENT FOR EARNING THE DIVIDEND INCOME. HENCE NO EXPENDITURE CAN BE ASCRIBED FOR EARNING OF SUCH INCOME. THE ASSESS ING OFFICER HOWEVER DID NOT AGREE WITH THE SUBMISSION OF THE APPELLANT AND AFTER REFERRING TO VARIOUS DECISIONS, HELD THAT SOME EXPENSES HAS TO B E ASCRIBED AS INCOME CANNOT BE DERIVED WITHOUT ANY EXPENSES. HE, THEREF ORE, ALLOCATED THE EXPENSES AT `. 1,51,97,000/- TO BE THE EXPENSES EARNING FOR THE EX EMPT INCOME. 4. BEFORE THE CIT(APPEALS), THE APPELLANT REITERATE D THE SAME SUBMISSIONS AND SUBMITTED THAT ALL THE EXPENSES AS HAVE BEEN INCURRED WERE FOR THE PURPOSE OF BUSINESS OF THE COMPANY AND HENCE THE QUESTION OF DISALLOWANCE OF ANY EXPENSES U/S. 14A DOES NOT A RISE ON THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE. THE CIT(APPEA LS) HOWEVER, HELD THAT AS PER THE PROCEDURE LAID DOWN UNDER RULE 8D, DISALLOWANCE OF EXPENDITURE HAS TO BE WORKED OUT IN RELATION TO THE EXEMPT INCOME U/S.14A. 5. BOTH THE PARTIES FAIRLY AGREED THAT THE ISSUE IS SQUARELY COVERED BY THE JUDGMENT OF HON'BLE BOMBAY HIGH COURT IN THE CA SE OF GODREJ & BOYCE MANUFACTURING COMPANY LTD. VS. DCIT REPORTED IN 328 ITR 81 , WHEREIN IT HAS BEEN HELD THAT RULE 8D IS NOT APPL ICABLE FOR THE ASSESSMENT YEARS PRIOR TO THE A.Y. 2008-09 AND THE MATTER MAY BE SENT BACK TO THE FILE OF THE ASSESSING OFFICER TO EXAMIN E THE ISSUE IN VIEW OF THE GUIDELINE GIVEN IN THE SAID JUDGEMENT. 6. WE, THEREFORE, RESPECTFULLY FOLLOWING THE JURISD ICTIONAL HIGH COURT JUDGMENT RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WHO WILL EXAMINE THE ENTIRE FACTS OF THE CASE, ACCOUNTS OF THE APPELLANT AND THEN WORK OUT THE EXPENSES ON A REASONABLE BASIS ON LY IF IT IS REQUIRED TO ITA NO : 4981/MUM/2010 M/S. MAZAGON DOCK LTD.. 4 BE MADE ON THE FACTS OF THE APPELLANTS CASE AFTER GIVING DUE AND REASONABLE OPPORTUNITY TO THE ASSESSEE. ACCORDINGL Y, GROUND NO. 1 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 7. IN GROUND NO.2, THE APPELLANT HAS CHALLENGED THE DISALLOWANCE OF `. 3,01,372/- BEING EMPLOYEES CONTRIBUTION TO PROVIDE NT FUND U/S.2(24)(X) R.W.S. 36(I)(VA) ON ACCOUNT OF DELAYED PAYMENT. 7.1 THE ASSESSING OFFICER AS WELL AS THE CIT(APPEAL S) HAS MADE THE AFORESAID DISALLOWANCE ON THE GROUND THAT THE EMPLO YEES CONTRIBUTION TO THE PROVIDENT FUND WAS REMITTED ON 27.04.2006 INSTE AD OF DUE DATE OF 15.04.2006 AND SINCE THE GRACE PERIOD OF FIVE DAYS HAS ALSO EXPIRED, THE SAME CANNOT BE ALLOWED. 8. THE LEARNED SENIOR COUNSEL SUBMITTED THAT THE EM PLOYEES CONTRIBUTION TO THE PROVIDENT FUND HAS BEEN DEPOSIT ED MUCH BEFORE THE DUE DATE OF FILING OF THE RETURN AND, THEREFORE, TH E SAME SHOULD BE ALLOWED. THE LEARNED SR. D.R. ALSO AGREED THAT THE PAYMENTS HAVE BEEN MADE MUCH BEFORE THE DUE DATE. 9. WE, THEREFORE, FOLLOWING THE JUDGEMENT OF THE HO N'BLE HIGH COURT IN THE CASE OF CIT VS. P.M. ELECTRONICS LTD. REPORTED IN [2009] 31 3 ITR 161 HOLD THAT THE DISALLOWANCE OF `. 3,01,372/- CANNOT BE MADE, ONCE THE APPELLANT HAS MADE THE PAYMENT OF EMPLOYEES CONTRI BUTION TO PROVIDENT FUND MUCH BEFORE THE FILING OF THE INCOME TAX RETUR N. HOWEVER, THE ASSESSING OFFICER WILL VERIFY THE DATE OF PAYMENT A ND ACCORDINGLY WILL GRANT RELIEF. IN THE RESULT, THE GROUND OF APPEAL NO. 2 IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO : 4981/MUM/2010 M/S. MAZAGON DOCK LTD.. 5 10. IN GROUND NO.3, THE APPELLANT HAS MAINLY CHALLE NGED THE ACTION OF THE ASSESSING OFFICER AND THE LD. CIT(A) FOR NOT GI VING CREDIT FOR TAX ON ACCOUNT OF TDS AMOUNTING TO `. 49,41,62,012/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER WHILE TALLYING THE TDS CERTIFICATE OBSERVED THAT DURING THE YEAR THE APPEL LANT HAS RECEIVED THE TOTAL AMOUNT OF `. 25,72,88,59,043/-, OUT OF WHICH ONLY AN AMOUNT OF `. 1,83,50,00,000/- WAS SHOWN AS SALES AND EVEN THE WO RK-IN-PROGRESS AND OTHER INCOME IF ADDED THEN IT AMOUNTS `. 6,43,55,00,000/-. HE, THEREFORE, REQUIRED THE APPELLANT TO RECONCILE THE RECEIPT SHOWN IN TDS CERTIFICATE WITH THE INCOME OFFERED FOR TAX DURING THE YEAR UNDER CONSIDERATION AND WHY THE REMAINING AMOUNT WAS NOT OFFERED FOR TAX EVEN THOUGH TDS WAS CLAIMED. 10.1 IN RESPONSE, IT WAS SUBMITTED BY THE APPELLANT THAT IT IS INVOLVED IN EXECUTING LONG TERM CONTRACT FOR CONSTRUCTION OF SH IPS / SUBMARINES FOR THE INDIAN NAVY WHICH RUNS BETWEEN 7 TO 9 YEARS. D URING THE RELEVANT ASSESSMENT YEAR THREE SUCH LARGE CONTRACTS WERE UND ER EXECUTION AND WHICH CONTINUED TO BE UNDER EXECUTION TILL DATE. T HE INDIAN NAVY USED TO PAY THE AMOUNT BY WAY OF IMPREST TO THE APPELLANT C OMPANY AS ADVANCE FOR MAKING THE PAYMENTS TO THE SUPPLIERS/CONTRACTOR S AND OTHER EXPENDITURES INCURRED BY THE COMPANY. THE PAYMENT WAS MADE ON STAGE WISE OR MILESTONE BASIS. DURING THE ASSESSMENT YEA R 2006-07, THE APPELLANT HAS CLAIMED TOTAL TDS CREDIT OF `. 64,07,22,560/-, WHICH INCLUDES `. 63,04,82,842/- BEING AMOUNT DEDUCTED BY CDA(N) FOR THE PAYMENTS MADE TO THE APPELLANT. THE ASSESSEES CON TENTION THAT THE CREDIT OF TDS HAS TO BE ALLOWED WAS BASED ON THE FO LLOWING REASONINGS:- I. THAT AS PER THE METHOD OF ACCOUNTING ADOPTED BY IT, THE WORK DONE IS REFLECTED IN SALES AND IN WORK-IN-PROGRESS. FURTHER THE PAYMENTS MADE ON ACCOUNT OF PURCHASE OF RAW MAT ERIAL ITA NO : 4981/MUM/2010 M/S. MAZAGON DOCK LTD.. 6 ETC. ALSO GOT ACCOUNTED IN THE BOOKS EITHER AS CONS IGNMENT OR AS CLOSING STOCK AT THE YEAR END AND; II. IT RECEIVES THE PAYMENT ON ACCOUNT OF : A) IMPREST ACCOUNT. B) FOR REIMBURSEMENT OF EXPENSES ALREADY INCURRED. C) PAYMENT TOWARDS THE WORK CARRIED OUT DURING THE PERIOD. AND OUT OF THESE EXCEPT FOR IMPREST ACCOUNT, THE TA X IS BEING DEDUCTED FOR THE OTHER TWO ITEMS. FURTHER IN ORDER TO GET CREDIT FOR TAX FOR TDS ON P AYMENTS MADE TO IT AS A CONTRACTOR, WHAT IS REQUIRED TO BE SEEN IS WHETHER THE INCOME OF THE BUSINESS IS IN THE COURSE OF WHICH IT HAS RECEIVED THE PAYMENT HAS BEEN CORRECTLY ACCOUNTED FOR. SO FAR AS THE APPELLANT I S CONCERNED, THE CREDIT OF INCOME GETS ACCOUNTED BY WAY OF SALES, WORK-IN-P ROGRESS OR BY INCLUSION IN THE CLOSING STOCK. APART FROM THIS, T HERE ARE ALSO ADVANCES WHICH ARE RECEIVED, WHICH ARE PENDING DISBURSEMENT OR WHICH HAVE BEEN DISBURSED TO THE SUPPLIER/CONTRACT FOR WHICH MATERI AL/SERVICES ARE TO BE RECEIVED. HOWEVER, BECAUSE OF THE METHOD OF ACCOUN TING ADOPTED BY THE APPELLANT THEY DO NOT GET REFLECTED IN THE WORK-IN- PROGRESS AND ITS VALUE IS TAKEN AT NIL. THIS IS BECAUSE, THE PROJECT HAS STARTED SOME ACTIVITIES WHICH HAS NOT REACHED A STAGE WHERE WORK-IN-PROGRES S CAN BE VALUED. ON THIS PREMISE IT HAS BEEN CONTENTED THAT AMOUNTS IN QUESTION HAVE BEEN CORRECTLY ACCOUNTED FOR AND, THEREFORE, CREDIT FOR TAX DEDUCTED ON SUCH AMOUNT HAS TO BE GIVEN TO THE APPELLANT IN THI S YEAR. 10.2 AS REGARDS THE TDS CERTIFICATE, THE APPELLANT OFFERED FOLLOWING EXPLANATION BEFORE THE ASSESSING OFFICER : ITA NO : 4981/MUM/2010 M/S. MAZAGON DOCK LTD.. 7 ASSESSEE COMPANY HAS RECEIVED AN AMOUNT OF `. 25460081368/- FROM CDA(N) FOR WHICH TDS CREDIT OF `. 630482542/- WAS DEDUCTED. OUT THE AMOUNT OF `. 25460081368/-, TAX HAS BEEN DEDUCTED ON `. 14537581368/- BUT NO TAX HAS BEEN DEDUCTED ON `. 109225000/-. THE BILLS FOR `. 16215435702/- HAVE BEEN ADJUSTED BY WAY OF SETTLEMENT OF ADVANCES PAID DURI NG THE EARLIER YEARS AND THE TAX HAS BEEN DEDUCTED ON THIS AMOUNT. THUS, DURING THE YEAR 2006-07, TDS HAS BEEN DEDUCTE D ON THIS AMOUNT. THUS DURING THE YEAR 2006-07, TDS HAS BEEN DEDUCTED ON `. 30753017020/-. THE BROAD BREAK-UP OF THIS AMOUNT IS AS UNDER : (AMOUNT : `. IN CRORES) 1 AMOUNT ACCOUNTED AGAINST SALES/SUNDRY DEBTORS 29.32 2 AMOUNT INCLUDED IN W.I.P. (OTHER THAN P. 15A PROJECT) 205.53 3 AMOUNT RECEIVED AGAINST PURCHASES 167.51 4 AMOUNT EXPENDED BY REMAINING AS ADVANCE PAID TO SUPPLIERS 1955.15 5 AMOUNT RECEIVED FOR WORK DONE, VALUE OF WHICH IS INCLUDED IN W.I.P. (P-15A PROJECT) 717.79 TOTAL 3075.30 OUT OF `. 717.79 CRORE RECEIVED ON ACCOUNT OF P-15A PROJECT, `. 153,23 CRORE HAVE BEEN INCLUDED AS INCREMENTAL WORK -IN- PROGRESS DURING THE YEAR AND `. 109.34 CRROE IS INCLUDED UNDER THE PURCHASES FOR THE YEAR. THE AMOUNT EXPENDED BU T REMAINING AS ADVANCE PAID TO SUPPLIERS INCLUDES `. 373,93,51,593/- AND `. 91,14,23,053/- BEING THE PAYMENTS MADE TOWARDS INCOME TAX AND SERVICE TAX TO THE CENT RAL EXCHEQUER. 10.3 THE ASSESSING OFFICER REJECTED THE EXPLANATION OF THE APPELLANT AFTER OBSERVING AND HOLDING AS UNDER : 10.4 FROM THE ABOVE EXPLANATION OF THE ASSESSEE, I T IS CLEAR THAT OUT OF TOTAL AMOUNT OF `. 30753017020/- ON WHICH TDS OF `. 63,04,82,542/- WAS DEDUCTED AND CLAIMED BY THE ASSE SSEE COMPANY, ONLY AN AMOUNT OF `. 664.93 CRORE WAS FORMING PART OF THE P&L ACCOUNT EITHER IN VIEW OF SALE OR W.I.P. OR PURCHASES WHICH WERE FORMING PART OF THE CLOSING ST OCK OR THE ITA NO : 4981/MUM/2010 M/S. MAZAGON DOCK LTD.. 8 AMOUNTS INCLUDED IN W.I.P. ( `. 29.32 CRORE + `. 205.53 CRORE + `. 167.51 CRORE + `. 153.23 CRORE + `. 109.34 CRORE). THEREFORE, IT IS CELAR THAT THE BALANCE AMOUNT OF `. 24103717020/- WAS NOT SHOWN BY THE ASSESSEE IN ITS INCOME OF THE YEAR UND ER CONSIDERATION, THUS, THE PROVISION OF SECTION 199 O F THE I.T. ACT, BECOMES CLEARLY APPLICABLE THAT ASSESSEE CAN CLAIM THE CREDIT OF TDS ONLY IN THE YEAR IN WHICH THE INCOME/RECEIPT WAS OFFERED TO TAX. ASSESSEES SUBISION THAT ITS ACCOU NTING PRACTICE IS AS PER AS-7, IS NOT OF ANY BENEFIT AS F AR AS CREDIT OF TDS GOES AS SAME IS GOVERNED BY THE SECTION 199 OF THE I.T. ACT ONLY. HENCE, IN VIEW OF ABOVE DISCUSSION, I HE REBY HELD THAT A TDS CREDIT OF `. 136320530/- IS TO BE ALLOWED TO THE ASSESSEE, BEING THE TDS ON THE INCOME OFFERED FOR T AX INCLUDING CLOSING STOCK AS WELL AS W.I.P. ( `. 63,04,82,542/- X `. 664.93 / `. 3075.30) AND THE BALANCE CREDIT OF `. 49,41,62,012/- IS TO BE DISALLOWED U/S.199 OF THE I .T. ACT AND THE CREDIT FOR SAID TDS CAN BE AVAILED BY THE A SSESSEE IN THE YEAR IN WHICH IT WILL OFFER THE RECEIPTS PERTAI NING TO THIS AMOUNT FOR TAXATION. 11. BEFORE THE CIT(APPEALS), THE SAME CONTENTION WA S RAISED WHICH HAS BEEN REPRODUCED IN PARA 36 (FROM PAGES 15 TO 16) OF THE APPELLATE ORDER. AFTER CONSIDERING THE SAID SUBMISSION, THE CIT(APPE ALS) TOO REJECTED THE APPELLANTS PLEA AND CONFIRMED THE DENIAL OF CREDIT FOR TDS DURING THE YEAR AS DONE BY THE ASSESSING OFFICER AFTER OBSERVI NG AND HOLDING AS UNDER :- 37. I HAVE CONSIDERED THE SUBMISSION. IN CIRCULAR NO.5 DT. 2/3/2001 THE ISSUE WAS WITH RESPECT TO TAX DEDUCTED IN TERMS OF SEC.194(I) FROM RENTAL INCOME. IN THIS CIRCULAR IT IS DECIDED BY THE BOARD THAT WHERE TDS HAS BEEN MADE FROM ADVA NCE RENT, CREDIT SHALL BE DISALLOWED IN THE SAME PROPOR TION IN WHICH INCOME IS OFFERED FOR TAXATION IN DIFFERENT A SSESSMENT YEARS COMPRISED IN THE TOTAL PERIOD FOR WHICH ADVAN CE RENT HAVE BEEN RECEIVED. THE SAME LOGIC CAN BE APPLIED IN THE CASE OF THE APPELLANT ALTHOUGH THE DEDUCTION OF TAX IS U /S.194(C) AND NOT 194(I). IN THE CASE OF THE APPELLANT THE P AYMENT TO ARMARIS WAS AN ADVANCE PAYMENT, SINCE SERVICES WERE NOT RECEIVED FROM ARMARIS DURING THE PREVIOUS YEAR. TH E PAYMENT WAS ACCOUNTED AS AN ADVANCE. ITA NO : 4981/MUM/2010 M/S. MAZAGON DOCK LTD.. 9 38. IN THE CASE OF P.K. DHIR VS. ACIT, 107 ITD 118 (CHD) THE ITAT HELD THE VIEW THAT TDS CREDIT SHOULD BE GIVEN ONLY IN THE YEAR WHNE INCOME IS DECLARED TO TAX. THE CREDIT FO R TDS FOR WHICH INCOME WAS SHOWN IN THE NEXT YEAR WOULD BE GI VEN IN THE NEXT YEAR. THE SAME VIEW AS TAKEN IN VARSHA SA LUNKHE VS. DCIT, 98 ITD 147 (MUM). THE MUMBAI BENCH ALSO HELD THAT CREDIT FOR TDS SHOULD BE GIVEN IN THE YEAR THE INCOME WAS ASSESSED. IN STALLION SECURITIES LTD., THE HYD. BE NCH ALSO HAD COME TO THE SAME CONCLUSION. 39. THE PROVISIONS OF SEC.199 ARE QUITE UNAMBIGUOUS . SEC.2 OF SEC. 199 FOR A.Y. 2006-07 CLEARLY STATED T HAT CREDIT FOR TAX SHOULD BE GIVEN TO THE PERSON FROM WHOSE INCOME THE TAX HAD BEEN DEDUCTED AND FOR THE ASSESSMENT YEAR FOR W HICH SUCH INCOME IS ASSESSABLE. THE INCOME IN RESPECT O F WHICH TAX HAS BEEN DEDUCTED IS NOT DECLARED NOR ASSESSED IN THE CURRENT ASSESSMENT YEAR. CREDIT FOR TDS THEREFORE, CANNOT BE GIVEN IN THIS YEAR. THE TDS THEREFORE, SHOULD BE G IVEN CREDIT ONLY OVER THE PERIOD AND TO THE EXTENT OF INCOME AC COUNTED FROM THE PROJECT. THE DENIAL OF CREDIT FOR TDS CLAIMED IS THEREFORE, CONFIRMED. 12. THE LEARNED SR. COUNSEL APPEARING ON BEHALF OF THE APPELLANT SUBMITTED THAT THE APPELLANT HAS BEEN MAINTAINING T HE ACCOUNTS IN ACCORDANCE WITH THE AS-7 (REVISED) AND INCOME IS AC COUNTED FOR ONLY WHEN THE CONTRACT IS COMPLETED. HIS MAIN ARGUMENT IS MAINLY REVOLVED UPON THE SUBMISSIONS MADE BEFORE THE ASSESSING OFFI CER AS WELL AS THE CIT(APPEALS) AS HAVE BEEN DISCUSSED IN THE FOREGOIN G PARAGRAPH. AFTER EXTENSIVELY REFERRING TO THE SAID SUBMISSIONS, HE P LACED HEAVY RELIANCE ON THE JUDGEMENT OF ITAT DELHI BENCH IN THE CASE OF ESCORTS LTD. VS. DCIT REPORTED IN [2007] 15 SOT 368 AND DREW OUR ATTENTION TO PARA 7 AT PAGE 376 OF THE SAID JUDGEMENT. FURTHER RELIANCE W AS PLACED ON THE DECISION OF SUPREME RENEWABLE ENERGY LTD. VS. ITO REPORTED IN [2010] 124 ITD 394 . BESIDE RELYING ON THESE JUDGEMENTS, HE SUBMITTED THAT ONCE TAX IS DEDUCTED, THE DEPARTMENT CANNOT RE FUSE TO GIVE CREDIT MAINLY BY CONTENDING THAT INCOME HAD NOT BEEN DISCL OSED IN THE RETURN WHICH IS CONTRARY TO THE SYSTEM OF ACCOUNTING FOLLO WED BY THE APPELLANT ITA NO : 4981/MUM/2010 M/S. MAZAGON DOCK LTD.. 10 AS THE INCOME GETS DEFERRED TO THE POINT OF TIME WH EN THE MANUFACTURED GOOD/CONTRACT WORK GETS DELIVERED OR COMPLETED. LA STLY, HE SUBMITTED THAT EVEN OTHER WISE ALSO IT WOULD BE VERY DIFFICUL T FOR THE APPELLANT TO GET THE CREDIT OF TDS IN THE SUBSEQUENT YEARS, AS IN TH E NEW SYSTEM OF E FILING AND IN 26AS IT WOULD BE DIFFICULT TO GET THE CREDIT IN THE SUBSEQUENT YEAR WHEN THE INCOME WOULD BE OFFERED. 13. ON THE OTHER HAND, THE LEARNED SR. DR SUPPORTED THE ORDERS OF THE ASSESSING OFFICER AS WELL AS THE CIT(APPEALS) AND P LACED RELIANCE ON THE DECISION OF CHENNAI BENCH OF THE TRIBUNAL IN THE CA SE OF ITO VS. SHRI ANUPALLAVI FINANCE & INVESTMENTS REPORTED IN [2011] 131 ITD 205 (CHENNAI) , WHEREIN THE CASE OF SUPREME RENEWABLE ENERGY LTD. VS. ITO (SUPRA) HAS BEEN DISCUSSED. HE ALSO REFERRED TO AN D RELIED UPON THE JUDGMENTS CITED BY THE CIT(APPEALS) IN PARA 38 OF T HE APPELLATE ORDER WHICH ARE THIRD MEMBER DECISIONS OF ITAT. 14. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS OF THE PARTIES AND ALSO GONE THROUGH THE ORDERS OF THE ASSESSING O FFICER AS WELL AS CIT(APPEALS). THE FACTS OF THE APPELLANTS CASE AN D THE REASONING GIVEN BY THE APPELLANT NEED NOT TO BE DISCUSS HERE, AS TH E SAME HAS BEEN DEALT ELABORATELY IN THE FOREGOING PARAGRAPHS. THE SHORT CONTROVERSY WHICH SEEMS TO BE INVOLVED HERE IS, WHETHER THE CREDIT FO R TDS AMOUNT CAN BE GIVEN IN THE IMPUGNED ASSESSMENT YEAR EVEN WHEN THE INCOME RELATION TO WHICH TDS HAS BEEN DEDUCTED IS NOT ASSESSABLE IN TH IS YEAR OR IN THE ASSESSMENT YEAR WHEN SUCH INCOME WOULD BE OFFERED. SECTION 199 DEALS WITH THE CREDIT FOR TAX DEDUCTED MADE UNDER CHAPTER XVII. THE CHAPTER XVII DEALS WITH THE PROVISIONS FOR EFFECTUATING COL LECTION AND RECOVERY OF TAX TO BE DEDUCTED AT SOURCE UNDER THE VARIOUS PROV ISIONS OF THE INCOME TAX ACT. IT DOES NOT DEAL EITHER WITH THE COMPUTAT ION OF INCOME OR CHARGEABILITY OF INCOME. SECTION 199 AMPLY CLARIFI ES THAT CREDIT FOR THE ITA NO : 4981/MUM/2010 M/S. MAZAGON DOCK LTD.. 11 TDS SHALL BE AVAILABLE FOR THE YEAR FOR WHICH THE C ORRESPONDING INCOME IS ASSESSABLE. IT NO WHERE PROVIDES FOR THE DETERMINA TION OF THE INCOME OR THE CREDIT OF TDS SHALL BE GIVEN BASED ON THE METHO D OF ACCOUNTING EMPLOYED UNDER SECTION 145. 14.1 THE SCOPE OF SECTION 198 AND 199 AND THE YEAR IN WHICH CREDIT HAS TO BE ALLOWED HAS BEEN ELABORATELY DEALT BY THE THI RD MEMBER DECISION IN THE CASE OF SMT. VARSHA G. SALUNKE VS. DCIT REPORTED IN [2006] 98 ITD 147 (MUM) (TM) IN THE FOLLOWING MANNER :- 6. SECTIONS 198 AND 199 OF THE ACT NOWHERE PROVIDE FOR AN EXCEPTION EITHER TO THE DETERMINATION OF THE INCOME UNDER THE AFORESAID PROVISIONS OF SECTIONS 28, 29 OR AS TO TH E METHOD OF ACCOUNTING EMPLOYED UNDER SECTION 145 OF THE ACT, W HICH ALONE COULD BE THE BASIS FOR COMPUTATION OF INCOME UNDER THE PROVISIONS OF SECTIONS 28 TO 43A OF THE ACT SECTION 198 HAS A LIMITED INTENTION. IT ONLY DECLARES THE AMOUNTS DED UCTED AT SOURCE UNDER SECTIONS 192 TO 194, SECTION 194A, SEC TION 194B, SECTION 194BB, 194C, SECTION 194D, SECTION 194E, SE CTION 194EE, SECTION 194F, 194G, SECTION 194H, SECTION 19 4-I, SECTION 194J, SECTION 194K, SECTION 195, 196A, SECTION 196B , SECTION 196C AND SECTION 196D TO BE AN INCOME RECEIVED. THE PURPOSE OF SECTION 198 IS NOT TO CARVE OUT EXCEPTION TO SEC TION 145 OF THE ACT. SECTION 199 OF THE ACT HAS TWO OBJECTIVES - ON E TO DECLARE THE TAX DEDUCTED AT SOURCE AS PAYMENT OF TAX ON BEH ALF OF THE PERSON ON WHOSE BEHALF THE DEDUCTION WAS MADE AND T O GIVE CREDIT FOR THE AMOUNT SO DEDUCTED ON THE PRODUCTION OF THE CERTIFICATE IN THE ASSESSMENT MADE FOR THE ASSESSM ENT YEAR FOR WHICH SUCH INCOME IS ASSESSABLE. THE SECOND OBJECTI VE MENTIONED IN SECTION 199 IS ANSWER THE QUESTION AS TO THE YEAR IN WHICH THE CREDIT FOR TAX DEDUCTED AT SOURCE SHAL L BE GIVEN. IT LINKS UP THE CREDIT WITH ASSESSMENT YEAR IN WHICH S UCH INCOME IS ASSESSABLE. IN OTHER WORDS, THE ASSESSING OFFICE R IS BOUND TO GIVE CREDIT IN THE YEAR IN WHICH THE INCOME IS OFFE RED TO TAX. THIS SECTION 199 DOES NOT EMPOWER THE ASSESSING OFFICER TO DETERMINE THE YEAR OF ASSESSABILITY OF THE INCOME I TSELF BUT IT ONLY MANDATES THE YEAR IN WHICH THE CREDIT IS TO BE GIVEN ON THE BASIS OF THE CERTIFICATE FURNISHED. IN OTHER WORDS, WHEN THE ASSESSEE PRODUCES THE CERTIFICATES OF TDS, THE ASSE SSING OFFICER IS REQUIRED TO VERIFY WHETHER THE ASSESSEE HAS OFF ERED THE ITA NO : 4981/MUM/2010 M/S. MAZAGON DOCK LTD.. 12 INCOME PERTAINED TO THE CERTIFICATE BEFORE GIVING CREDIT. IF HE FINDS THAT THE INCOME OF THE CERTIFICATE IS NOT SHO WN, THE ASSESSING OFFICER HAS ONLY NOT TO GIVE THE CREDIT FOR TDS IN THAT ASSESSMENT YEAR AND HAS TO DEFER THE CREDIT BEING G IVEN TO THE YEAR IN WHICH THE INCOME IS TO BE ASSESSEE. AT THE COST OF REPETITION, IT MAY BE MENTIONED THAT SECTIONS 198 A ND 199 DO NOT IN ANY WAY CHANGE THE YEAR OF ASSESSABILITY O[ INCOME, WHICH DEPENDS UPON THE METHOD OF ACCOUNTING REGULAR LY EMPLOYED BY THE ASSESSEE. THEY ONLY DEAL WITH THE Y EAR IN WHICH THE CREDIT HAS TO BE GIVEN BY THE ASSESSING O FFICER. IT CANNOT BE DISPUTED THAT ACCORDING TO THE METHOD OF ACCOUNTING EMPLOYED BY THE ASSESSEE THE INCOME IN RESPECT OF T HE THREE TDS CERTIFICATES, WHICH ARE MENTIONED IN PARAGRAPH 3 ABOVE, DOES NOT PERTAIN TO THE ASSESSMENT YEAR IN QUESTION , BUT IT PERTAINS TO THE NEXT ASSESSMENT YEAR AND IN FACT, I N THAT YEAR THE ASSESSEE HAS OFFERED THE SAME TO TAX. THEREFORE , THE CREDIT IN RESPECT OF THESE THREE TDS CERTIFICATES SHALL NO T BE GIVEN IN THE ASSESSMENT YEAR UNDER CONSIDERATION, BUT THE CR EDIT FOR THE SAME SHALL BE GIVEN IN THE NEXT ASSESSMENT YEAR IN WHICH THE INCOME IS SHOWN TO HAVE BEEN ASSESSED. 14.2 A SIMILAR VIEW HAS BEEN GIVEN IN ANOTHER THIRD MEMBER JUDGEMENT IN THE CASE OF PRADEEP KUMAR DHIR VS. ACIT REPORTED IN [2007] 107 ITD 118 (CHD) (TM) , WHEREIN THE PROVISIONS AND SCOPE OF SECTION 199 HAS BEEN DEALT IN THE FOLLOWING MANNER :- 10. I HAVE GIVEN CAREFUL THOUGHT TO THE RIVAL SUBM ISSIONS OF THE PARTIES. I HAVE ALSO CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE. I AM UNABLE TO AGREE WIT H THE LEARNED ACCOUNTANT MEMBER THAT TAX DEDUCTED AT SOUR CE IS ADVANCE TAX AND CREDIT FOR THE SAME IS TO BE GIVEN TO THE ASSESSEE IN TERMS OF SECTION 219 OF THE INCOME-TAX ACT. THE ABOVE SECTION, AS RIGHTLY POINTED OUT BY THE LEARNE D VICE PRESIDENT, HAS NO APPLICATION IN THIS CASE. THERE I S A SPECIFIC SECTION I.E. SECTION 199 OF THE INCOME-TAX ACT UNDE R WHICH CREDIT HAS TO BE ALLOWED TO THE ASSESSEE OF TAX DED UCTED AT SOURCE WHEN CERTIFICATE IS FURNISHED UNDER SECTION 203 OF THE INCOME-TAX ACT. THE PROVISION OF THE SAID SECTION H AS BEEN QUOTED BY THE LEARNED ACCOUNTANT MEMBER AND HONBLE VICE PRESIDENT AND, THEREFORE, I AM NOT REPRODUCING WHOL E OF THE SECTION. IMPORTANT PORTION OF THE SECTION RELATING TO CREDIT TO BE GIVEN IS BEING REPRODUCED HEREUNDER :- ITA NO : 4981/MUM/2010 M/S. MAZAGON DOCK LTD.. 13 CREDIT SHALL BE GIVEN TO HIM FOR THE AMOUNT SO DED UCTED ON THE PRODUCTION OF THE CERTIFICATE FURNISHED UNDE R SECTION 203 IN THE ASSESSMENT MADE UNDER THIS ACT F OR THE ASSESSMENT YEAR FOR WHICH SUCH INCOME IS ASSESSABLE. [EMPHASIS SUPPLIED] 11. 12. .. 13. THE CBDT CIRCULAR NO. 5 OF 2001, DATED 2-3-2001 ALSO SUPPORTS THE VIEW THAT WHERE TAX IS DEDUCTED FROM T HE AMOUNT WHICH IS LIABLE TO BE ASSESSED AND SPREAD OVER MORE THAN ONE FINANCIAL YEAR, CREDIT SHALL BE ALLOWED FOR TDS ON PRO RATA BASIS AND IN THE SAME PROPORTION IN WHICH SUCH INCO ME IS OFFERED FOR TAXATION IN DIFFERENT ASSESSMENT YEARS. 14. THE LEARNED COUNSEL FOR THE ASSESSEE WHILE SUPP ORTING THE ORDER PROPOSED BY THE LEARNED ACCOUNTANT MEMBER , EMPHASIZED THAT THE INCOME MUST BE COMPUTED AS PER SYSTEM OF ACCOUNTING REGULARLY FOLLOWED BY THE ASSESSEE, I HAVE NO QUARREL WITH THE ABOVE PROPOSITION BUT I AM UNABLE TO AGREE THAT THE CREDIT FOR THE TAX DEDUCTED AT SOURCE IS T O BE ALLOWED AS PER ANY SYSTEM OF ACCOUNTING FOLLOWED BY THE ASS ESSEE. IN THE PRESENT CASE, THERE IS NO DISPUTE REGARDING CAS H SYSTEM OF ACCOUNTING FOLLOWED BY THE ASSESSEE AND HIS INCOME HAS BEEN COMPUTED AS PER ABOVE SYSTEM. NO ADDITION HAS BEEN MADE FOR INCOME WHICH THE ASSESSEE WAS ENTITLED TO REC EIVE BUT DID NOT ACTUALLY RECEIVE. NO CREDIT FOR TDS ON SUCH NON- ASSESSABLE INCOME COULD BE CLAIMED. BENEFIT FOR THE TAX DEDUCTED AT SOURCE IS TO BE ALLOWED AS PER STATUTOR Y PROVISIONS CONTAINED IN SECTION 199 OF THE ACT. IT HAS NOTHING TO DO WITH THE SYSTEM OF ACCOUNTING FOLLOWED BY THE ASSESSEE. FURTHER THERE IS NO DISPUTE THAT THE REVENUE SHOULD HAVE A CONSISTENT APPROACH BUT THE ABOVE PRINCIPLE OF LAW HAS NO APPLICATION WHERE INTERPRETATION OF STATUTORY PROVI SIONS IS INVOLVED. IF IN A PARTICULAR YEAR A STATUTORY PROVI SION WAS WRONGLY INTERPRETED AND APPLIED, THE REVENUE CAN CO RRECT THE ERROR AS INCOME IS REQUIRED TO BE COMPUTED BY CORRE CTLY APPLYING AND ENFORCING LAW. ERROR CANNOT BE PERPETU ATED. THEREFORE ON CORRECT INTERPRETATION OF SECTION 199 AND FOR THE REASONS GIVEN ABOVE, I AM OF THE VIEW THAT THE ASSE SSING OFFICER WAS RIGHT IN ALLOWING CREDIT FOR TAX DEDUCT ED AT SOURCE ON PRO RATA BASIS. THE CREDIT FOR THE BALANCE AMOUN T MENTIONED IN THE CERTIFICATE IS TO BE ALLOWED IN TH E YEAR IN WHICH SUCH INCOME IS DISCLOSED OR IS OTHERWISE FOUN D TO BE ASSESSABLE BY THE REVENUE. ITA NO : 4981/MUM/2010 M/S. MAZAGON DOCK LTD.. 14 14.3 THUS FROM THE ABOVE DECISIONS, IT IS AMPLY CLE AR THAT CREDIT OF THE TDS CAN BE ALLOWED ONLY IN THE YEAR WHEN THE INCOME ON WHICH TDS HAS BEEN DEDUCTED IS ASSESSABLE AND ANY SUCH INCOME WHI CH HAS NOT BEEN ASSESSED IN THAT YEAR THEN THE CREDIT FOR TDS CANNO T BE CLAIMED U/S.199. THE APPREHENSION OF THE LEARNED COUNSEL THAT IT WOU LD BE DIFFICULT TO GET THE CREDIT IN THE SUBSEQUENT YEARS GETS ALLAYED FRO M THE PROVISIONS OF RULE 37BA INSERTED W.E.F 01.04.2009 IN THE INCOME TAX RULES, WHICH PROVIDES THE MECHANISM FOR GIVING THE CREDIT OF TDS AMOUNT, IF THE INCOME IS ASSESSABLE OVER A NUMBER OF YEARS. THIS HAS BEEN SPECIFICALLY PROVIDED IN SECTION 37BA SUB SECTION (3) CLAUSE (II ). EVEN THOUGH, THE SAID RULE IS APPLICABLE FROM 01.04.2009, BUT IT COR RESPONDS WITH THE SPIRIT OF SECTION 199 WHICH STOOD PRIOR TO AMENDMEN T W.E.F 01.04.2008 AND IS ALSO IN CONSONANCE WITH THE VARIOUS DECISION S AS HAVE BEEN QUOTED ABOVE. THE APPLICABILITY OF RULE 37BA(3)(I) IN THE EARLIER YEARS (I.E. PRIOR TO 01.04.2009) HAS BEEN DEALT WITH IN A DECIS ION PASSED BY ITAT CHENNAI BENCH IN THE CASE OF ITO VS. SHRI ANUPALLAVI FINANCE & INVESTMENTS, REPORTED IN [2011] 131 ITD 205 (CHENNA I) , WHEREIN THIS ISSUE HAS BEEN DEALT IN THE FOLLOWING MANNER :- 4.2 THE CONTROVERSY, IN FACT, SHOULD NOT OBTAIN EVE N IN THE ABSENCE OF THE PROVISION OF SECTION 199, AS SECTION 191 CLEARLY STATES THAT TDS IS ONLY ONE OF THE MODES OF RECOVER Y OF TAX, SO THAT TAX TO THAT EXTENT HAS BEEN PAID ON A PARTICUL AR INCOME, AND THE LIABILITY TO TAX OF THE ASSESSEE-DEDUCTEE O N THE CORRESPONDING INCOME ABATES TO THAT EXTENT. NOW, I T CANNOT BE THAT WHILE THE TAX DEDUCTION AT SOURCE, WHICH IS ON LY A MANNER OR MODE OF PAYMENT OR RECOVERY OF TAX, IS ON INCOME A, THE CREDIT THEREOF IS ALLOWED AGAINST INCOME B. IN A NY CASE, SECTION 199 MAKES THINGS ABUNDANTLY CLEAR, ELIMINAT ING SCOPE OF ANY DOUBT. SUB-RULE 3(I) OF SECTION 37BA IS IDE NTICALLY WORDED, I.E. EMPLOYEES THE SAME WORDS AS OF THE ERS TWHILE SECTION 199 OF THE ACT, REPRODUCED HEREINABOVE, SIN CE OMITTED. SUB-RULE 3(II) OF THE ACT FURTHER CLARIFIES THAT WH ERE THE INCOME SUBJECT TO TDS IS ASSESSABLE OVER A NUMBER OF YEARS , CREDIT FOR TDS SHALL BE ALLOWED ACROSS THOSE YEARS PROPORTIONA TELY. ITA NO : 4981/MUM/2010 M/S. MAZAGON DOCK LTD.. 15 CLEARLY, A COURSE THAT PLAIN COMMON SENSE AND LINEA R THINKING WOULD SUGGEST, GIVEN RULE 37BA(3)(I) OF THE ACT. IN OTHER WORDS, THERE IS A COMPLETE HARMONY BETWEEN THE ERSTWHILE S ECTION 199 AND SECTION 199 AS IT NOW READS [AFTER SUBSTITU TION BY FINANCE ACT, 2008 WITH EFFECT FROM 1.04.2008] READ WITH RUEL 37BA. IN FACT, THE TRIBUNAL IN MOST CASES, INCLUDI NG THOSE CITED BEFORE US, HAS DE HORS THE SAID PROVISION HELD EXACTLY WHAT RULE 37BA(3)(II) STATES, THAT IS, PRIOR TO THE SAID RULE, AND ONLY ON THE BASIS THAT THE CREDIT FOR TDS IS TO BE ALLOWED ONLY FOR THE ASSESSMENT YEAR FOR WHICH THE INCOME IS ASS ESSABLE. AS SUCH, THE ASSESSEES CASE GETS NO SUPPORT WITH R EFERENCE TO RULE 37BA OF THE RULES, AS SOUGHT TO BE DRAWN BY TH E LD. AR. THE SAID RULE, RATHER, FURTHER ENDORSES AND VALIDAT ES THE THIRD MEMBER DECISION OF THE TRIBUNAL IN THE CASE OF PRAD IP KUMAR DHIR (SUPRA). THIS ALSO EXPLAINS AS TO WHY THE LD. DR WAS AT PAINS TO SHOW THE NECESSITY FOR RULE 37BA. AS WE SE E IT, THE SAID RULE SEEKS TO ADDRESS THE VARIOUS CONTINGENCIE S THAT MAY ARISE IN ALLOWING THE CREDIT FOR TDS VIZ., QUA THE YEARS TO WHICH CORRESPONDING INCOME IS ALLOCATED; QUA THE PE RSONS IN WHOSE HANDS THE CORRESPONDING INCOME IS ASSESSABLE, AS WHERE THE UNDERLYING SECURITY OR ASSET YIELDING INC OME SUBJECT TO TDS IS OWNED JOINTLY, ETC., SOME OF WHICH STOOD ADDRESSED BY THE ERSTWHILE SECTION 199 ITSELF, VIDE PROVISO T O SUB-SECTION (1) THEREOF, ALSO OMITTED SINCE. 14.4 THUS EVEN THOUGH RULE 37BA HAS BEEN BROUGHT ON THE STATUE WITH EFFECT FROM A LATER DATE (01.04.2009), IT PROVIDES FOR A COMPREHENSIVE GUIDELINE FOR ALL THE MATTERS RELATING TO THE ALLOW ANCE OF CREDIT FOR TDS IN THE VARIOUS SITUATIONS THAT MAY ARISE EVEN IN THE P RESENT CASE ALSO. 15. THUS RESPECTFULLY, FOLLOWING THE ABOVE DECISION S WE DIRECT THE ASSESSING OFFICER TO ALLOW THE CREDIT OF TDS IN THE YEAR IN WHICH SUCH INCOME IS ASSESSABLE OR DECLARED IN RESPECT TO WHIC H TDS HAS BEEN DEDUCTED AND IN ACCORDANCE WITH THE PROVISIONS OF R ULE 37BA. ACCORDINGLY, THE GROUND OF APPEAL OF THE APPELLANT IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO : 4981/MUM/2010 M/S. MAZAGON DOCK LTD.. 16 16. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 28 TH DAY OF MARCH, 2012. SD/ - SD/ - ( G. E. VEERABHADRAPPA ) ( AMIT SHUKLA ) PRESIDENT JUDICIAL MEMBER MUMBAI, DT: 28.03.2012 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, B - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI