ESTATE OF BOMSIFARROK KAKA , MUMBAI V. CIT (A)-NAFC, DELHI

ITA 747/MUM/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 0098 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2019-2020
• Appeal Filed On: 09-05-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS; FORM 26AS
• Section: 154; 234B; 143(1); 250; 192

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH “E”, MUMBAI BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA No.747/M/2021 Assessment Year: 2019-20 M/s. Estate of Bomsifarrok Kaka, Avabai Mansion, 15 Henry Road, Colaba, Mumbai – 400 001 PAN: AAAJE1195Q Vs. CIT (A)-NAFC National Faceless Appeal Centre, New Delhi, Delhi - 110003 (Appellant) (Respondent) Present for: Assessee by : Shri Porus F. Kaka, A.R. Revenue by : Shri Anil Das, D.R. Date of Hearing : 17.01.2022 Date of Pronouncement : 17.01.2022 O R D E R Per Kuldip Singh, Judicial Member: Appellant M/s. Estate of Bomsifarrok Kaka (hereinafter referred to as the assessee) by filing the present appeal sought to set aside the impugned order passed by Commissioner of Income Tax (Appeals) [(hereinafter referred to as the CIT(A)], National Faceless Appeal Centre (NFAC) on the grounds inter-alia that :- “GROUND NO. 1; DISALLOWANCE OF CREDIT OF TAX DEDUCTED AT SOURCE; On the facts and circumstances of the case and in law, the learned CIT(A) erred in dismissing the appeal filed by the Appellant by ITA No.747/M/2021 M/s. Estate of Bomsifarrok Kaka 2 disallowing the credit for Tax Deducted at Source, of Rs.64,290/- in the Order issued under section 250 of the Income Tax Act, 1961 stating that the same has been reflected in Form 26AS of Mrs. Perviz F Kaka (PAN: AAQPK8470J) (Legal Representative) of the assessee. The Appellant prays that the Deputy Commissioner of Income Tax, CPC, (DCIT) be directed to grant a credit of the Tax Deducted at Source and cancel the demand accordingly. GROUND NO. 2: ERRED IN CONSIDERSTION OF MATERIAL DOCUMENTS: On the facts and circumstances of the case and in law, the learned CIT(A) has erred in disregarding the facts and submissions that the TDS Credit reflecting in Form 26AS of Mrs. Perviz F Kaka has not been claimed by Mrs. Perviz F Kaka in her Return of Income and the Income component of the TDS relating to Rs.64,290/- has been duly disclosed in the Return of Income of the appellant. GROUND NO. 3; GIVEN DIRECTONS WITHOUT ANY GROUNDS OF APPEAL: On the facts and circumstances of the case and in law, the learned CIT(A) has erred in giving directions to Mrs. Perviz Farrok Kaka to approach her Assessing Officer and file a rectification application under section 154 of the Income Tax Act, 1961 without a Ground of Appeal before him. GROUND NO. 4: LEVY OF INTEREST UNDER SECTION 234B AND 234C OF THE ACT; On the facts and circumstances of the case and in law, the learned DCIT,CPC erred in levying interest under section 234B and 234C of the Act. The Appellant prays that, the AO be directed to delete the levy of interest under section 234B and 234C of the Act. GROUND NO. 5; GENERAL: The Appellant craves leave to add to, alter, amend and / or delete the above grounds of appeal.” 2. Briefly stated facts necessary for adjudication of the controversy at hand are : return of income filed by the assessee for A.Y. 2019-20 was processed by the Dy. Commissioner of Income Tax (for short DCIT), CPC, Bengaluru without giving credit of tax ITA No.747/M/2021 M/s. Estate of Bomsifarrok Kaka 3 deducted at source (TDS) to the tune of Rs.64,290/- in form 26AS of Mrs. Perviz F. Kaka (legal representative of the assessee) as per intimation issued under section 143(1) of the Income Tax Act (for short ‘the Act’). 3. Feeling aggrieved with the order passed by the Ld. DCIT, CPC, Bengaluru as to not giving credit of TDS of Rs.64,290/- the assessee approached the Ld. CIT(A) by way of filing the appeal who has dismissed the same. 4. Feeling aggrieved, the assessee has come up before the Tribunal by way of filing the present appeal. 5. We have heard the Ld. Authorised Representatives of the parties to the appeal, perused the orders passed by the Ld. Lower Revenue Authorities and documents available on record in the light of the facts and circumstances of the case and case law relied upon. 6. Undisputedly, the assessee has e-filed its return of income for A.Y. 2019-20 claiming TDS to the tune of Rs.90,674/-, which was processed under section 143(1) of the Act and CBC, Bengaluru had allowed TDS credit of Rs.26,384/- only as shown in its form 26AS and disallowed the balance mismatched TDS credit. It is also not in dispute that Mrs. Perviz F. Kaka had not claimed the TDS credit in question in her return of income during her life time. It is also not in dispute that Mrs. Bomsi F. Kaka has since died on 02.12.2018 ITA No.747/M/2021 M/s. Estate of Bomsifarrok Kaka 4 and was physically and mentally handicapped incapable of holding assets in her name. It is also not in dispute that up to A.Y. 2017-18 all benefits of TDS have been given to her. 7. Reconciliation statement of TDS claimed by the assessee in its return of income out of the total amount of TDS duly reflected in form 26AS of Mrs. Perviz F. Kaka is as under: Name of the Deductor TAN of the Deductor Total Amount Paid/Credited (Rs.) Total Tax Deducted (Rs.) Total TDS Deposited (Rs.) Chemmanur Credits & Investments Limited CHNC03470F 90,000.00 9,000.00 9,000.00 ICICI Bank Limited MUMI04813E 6,773.00 677.00 677.00 Kosamattam Ventures Private Limited TVDK02067C 2,01,133.00 20,113.00 20,113.00 Popular Traders TVDP00494E 3,45,000.00 34,500.00 34,500.00 8. The Ld. CIT(A) while deciding the issue in controversy against the assessee referred to the details of mismatched TDS claim as mentioned in intimation order under section 143(1) of the Act as under: SI. No. TAN of deductor or PAN of the Buyer Amt Claimed in TAN of deducted PAN of buyer in Column 2 Amount matched Amount mismatched (1) (2) (3) (4) (5) (i) TVDP00494E 34500 0 34500 ITA No.747/M/2021 M/s. Estate of Bomsifarrok Kaka 5 (ii) MUMI04813E 677 0 677 (Hi) CHNC03470F 9000 0 9000 (iv) TVDP00492C 20113 0 20113 9. Consequently, the Ld. CIT(A) dismissed the appeal by observing that CPC, Bengaluru has correctly allowed the TDS credit of Late Bomsi Farrok Kaka as per Form 26AS because mismatched TDS credit did not pertain to him, rather to Ms. Perviz F. Kaka as from the submission made by the legal heir of Estate of Bomsi F. Kaka, it is not clear that respective income components have also been shown in the hand of the assessee or not. 10. Challenging the impugned order passed by the Ld. CIT(A), the Ld. A.R. for the assessee contended that when the detail reconciliation statement of TDS claimed by M/s. Estate of Bomsifarrok Kaka in its return of income out of total amount of TDS as reflecting in form 26AS of Mrs. Perviz F. Kaka is given vide written submissions made before the Ld. CIT(A), extracted in para 7 of the impugned order, there is no question of mismatch TDS credit as observed by the Ld. CIT(A) and referred to the provisions contained under section 199 of the Act. For ready ITA No.747/M/2021 M/s. Estate of Bomsifarrok Kaka 6 perusal, provisions under section 199 of the Act are extracted as under: “199. (1) Any deduction made in accordance with the foregoing provisions of this Chapter and paid to the Central Government shall be treated as a payment of tax on behalf of the person from whose income the deduction was made, or of the owner of the security, or of the depositor or of the owner of property or of the unit-holder, or of the shareholder, as the case may be. (2) Any sum referred to in sub-section (1A) of section 192 and paid to the Central Government shall be treated as the tax paid on behalf of the person in respect of whose income such payment of tax has been made. (3) The Board may, for the purposes of giving credit in respect of tax deducted or tax paid in terms of the provisions of this Chapter, make such rules38 as may be necessary, including the rules for the purposes of giving credit to a person other than those referred to in sub-section (1) and sub-section (2) and also the assessment year for which such credit may be given.” 11. Bare perusal of the provisions contained under section 199 of the Act goes to prove that any deduction of TDS made in accordance with provisions of chapter XVII and paid to the central government shall be treated as a payment of tax on behalf of the person from whose income the deduction was made. 12. In the instant case when it is not in dispute that the tax deduction (TDS) has been made in accordance with the provisions contained under Income Tax Act on behalf of the person from whose income deduction was made the credit of the same has to be given to him/her. Legal position canvassed by the Ld. A.R. for the assessee has not been controverted by the Ld. D.R. for the Revenue. 13. So we are of the considered view that when reconciliation statement of TDS claimed by M/s. Estate of Bomsifarrok Kaka in ITA No.747/M/2021 M/s. Estate of Bomsifarrok Kaka 7 its return of income out of the total amount of TDS as reflecting in form 26AS of Mrs. Perviz F. Kaka (PAN : AAQPK8470J) has been brought on record during the appellate proceedings, the Ld. CIT(A) has erred in disallowing the credit of TDS of Rs.64,290/-, DCIT, CPC, Bengaluru is directed to grant TDS credit and cancel the demand accordingly along with interest levied under section 234B and 234C being consequential in nature. Resultantly, the appeal filed by the assessee is allowed. Order pronounced in the open court on 17.01.2022. Sd/- Sd/- (PRASHANT MAHARISHI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated: 17.01.2022. * Kishore, Sr. P.S. Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The CIT (A) Concerned, Mumbai The DR Concerned Bench //True Copy// By Order Dy/Asstt. Registrar, ITAT, Mumbai.