TATA COMMUNICATIONS LTD, MUMBAI V. ASST CIT 1(3), MUMBAI

ITA 852/MUM/2014

• Counselvise Citation: 85219914 RSA 2014
• Duration Of Justice: 1 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 06-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJUNATHA SWAMY CIT D R
• Assessee Lawyers: DINESH VYAS

Judgement Text

E IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI A.D. JAIN, JM AND SHRI RAJENDRA, AM .. , , ./ I.T.A. NO.852 /MUM/2014 ( / ASSESSMENT YEAR : 2010-11 ./ I.T.A. NO.853 /MUM/2014 ( / ASSESSMENT YEAR : 2011-12 TATA COMMUNICATIONS LIMITED, (FORMERLY VIDESH SANCHAR NIGAM LIMITED), VIDESH SANCHAR BHAVAN, M.G. ROAD, FORT, MUMBAI 400 001. / VS. ASSISTANT C OMMISSIONER OF INCOME TAX 1(3), AAYKAR BHAVAN, M.K. ROAD, MUMBAI- 400 020. ./ PAN : AAACV 2808 C ( / APPELLANT ) .. ( ! / RESPONDENT ) A PPELLANT BY SHRI DINESH VYAS R E SPONDENT BY : SHRI MANJUNATHA SWAMY (CIT - D.R.) ' # $ % & ' / DATE OF HEARING : 20-07-2015 ()*+ % & ' / DATE OF PRONOUNCEMENT : 29-7-2015 [ , / O R D E R PER A.D. JAIN, J.M . : .. , THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIRECTE D AGAINST TWO SEPARATE ORDERS OF LD. CIT(A) -2, MUMBAI, DATED 30- 09-2013, FOR ASSESSMENT YEARS 2010-11 & 2011-12. ITA 852 & 853/M/14 2 2. COMMON GROUNDS ARE INVOLVED IN BOTH THESE APPEAL S, THEREFORE, THESE WERE HEARD TOGETHER AND THEY ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER, FOR THE SAKE OF CONVENIENCE. 2. GROUND NO. 1 IN BOTH THESE APPEALS RELATE TO DEN IAL OF TDS CREDITS TO THE ASSESSEE, AMOUNTING TO RS. 14,63,06,723/- AND R S. 8,91,45,730/-, FOR ASSESSMENT YEARS 2010-11 AND 2011-12, RESPECTIVELY. 3. IN THIS CASE, THE A.O. OBSERVED THAT THERE WAS A HUGE DIFFERENCE BETWEEN THE AGGREGATE AMOUNT OF TDS CLAIMED AS PER THE PHYS ICAL TDS CERTIFICATES AND THE AGGREGATE AMOUNTS ARRIVED AT ON THE BASIS OF TH E DATE, AS APPEARING IN FORM NO. 26AS. AS PER THE CBDT DIRECTION, THE A.O. IS EMPOWERED TO TAKE CORRECTIVE ACTION ONLY IN CASES INVOLVING SMALL AMO UNTS OF MISMATCH. HOWEVER, SINCE IN THE PRESENT CASE, THE MAGNITUDE O F DIFFERENCE OF SHORT CREDIT OF TDS COMES TO A HIGH AMOUNT, THE A.O. DENIED THE TDS CREDIT ON THE GROUND OF DATA MISMATCH WITH FORM 26AS. ON APPEAL, THE LD. CIT(A) DIRECTED THE A.O. TO TAKE UP THE ISSUE WITH THE A.O. (TDS) TO ENSURE THAT THE DEDUCTOR IS MADE TO COMPLY WITH THE PROVISIONS OF TDS, INCLUDING THE UPLOADING OF CORRECT DATA, OR RECTIFYING THE DATA ALREADY UPLOADED SO AS TO M ATCH THE AMOUNTS AS PER THE TDS CERTIFICATES ISSUED. 4. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISIO N OF THE MUMBAI TRIBUNAL VIDE ORDER DATED 13-09-2013 IN THE CASE OF CITICOR P FINANCE (INDIA) LIMITED. VS. ADDL. CIT IN ITA NO. 8532/MUM/2011 FOR A.Y. 20 07-08. ON A PERUSAL OF THE TRIBUNAL ORDER (SUPRA), WE FIND THAT THE ISSUE HAS BEEN DECIDED BY THE TRIBUNAL BY FOLLOWING THE ORDER OF THE HONBLE BOMB AY HIGH COURT IN THE CASE OF YASHPAL SAHWNEY VS. ACIT, 293 ITR 539, AND THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF COURT ON ITS OWN M OTION VS. CIT, 352 ITR 273). THE TRIBUNAL MODIFIED THE ORDER OF LD. CIT(A ) AND DIRECTED THE A.O. TO ENSURE THAT THE CREDIT IS GIVEN TO THE ASESSEE, WH ERE THE DEDUCTOR HAD FAILED ITA 852 & 853/M/14 3 TO UPLOAD THE CORRECT DETAILS IN FORM 26AS ON THE B ASIS OF EVIDENCE PRODUCED BEFORE THE DEPARTMENT. THE RELEVANT PORTION OF THE TRIBUNAL ORDER DATED 13- 09-2013 (SUPRA) IS AS FOLLOWS:- 4. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE MATTER CAREFULLY. THE DISPUTE IS REGARDING CREDIT FOR TDS. THE CREDIT OF TDS HAS BEEN DENIED TO THE ASSESSEE ON THE GROUND THAT THE CLAIM FOR TDS WAS NO REFLECTED IN THE COMPUTER GENERATED FORM 26AS. THE DIFFICULTY FACED BY THE TAX PAYER IN THE MATTER OF CREDIT OF TDS HAD BE EN CONSIDERED BY THE HONBLE HIGH COURT OF BOMBAY IN CASE OF YASHPAL SAH WNEY VS. DCIT (SUPRA) IN WHICH IT WAS HELD THAT EVEN IF THE DEDUC TOR HAD NOT ISSUED TDS CERTIFICATE, THE CLAIM OF THE ASSESSEE HAS TO B E CONSIDERED ON THE BASIS OF EVIDENCE PRODUCED FOR DEDUCTION OF TAX AT SOURCE AS THE REVENUE WAS EMPOWERED TO RECOVER THE TAX FROM THE P ERSON RESPONSIBLE IF HE HAD NOT DEDUCTED TAX AT SOURCE OR AFTER DEDUC TING FAILED TO DEPOSIT WITH CENTRAL GOVERNMENT. HONBLE HIGH COURT OF DELH I IN CASE OF COURT ON ITS OWN MOTION VS. CIT (SUPRA) HAVE ALSO DIRECTE D THE DEPARTMENT TO ENSURE THAT CREDIT IS GIVEN TO THE ASSESSEE, WHE RE DEDUCTOR HAD FAILED TO UPLOAD THE CORRECT DETAILS IN FORM 26AS ON THE B ASIS OF EVIDENCE PRODUCED BEFORE THE DEPARTMENT. THEREFORE, THE DEPA RTMENT IS REQUIRED TO GIVE CREDIT FOR TDS ONCE VALID TDS CERTIFICATE H AD BEEN PRODUCED OR EVEN WHERE THE DEDUCTOR HAD NOT ISSUED TDS CERTIFIC ATES ON THE BASIS OF EVIDENCE PRODUCED BY ASSESSEE REGARDING DEDUCTION O F TAX AT SOURCE AND ON THE BASIS OF INDEMNITY BOND. WE, THEREFORE M ODIFY THE ORDER PASSED BY CIT(A) ON THIS POINT AND DIRECT THE AO TO PROCEED IN THE MANNER DISCUSSED ABOVE TO GIVE THE CREDIT OF TAX DE DUCTED AT SOURCE TO THE ASSESSEE. 5. RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNA L, WE MODIFY THE ORDER PASSED BY THE LD. CIT(A) AND DIRECT THE A.O. TO PRO CEED WITH THE MATTER IN TERMS OF THE DIRECTIONS OF THE TRIBUNAL, AS INDICAT ED IN THE ABOVE TRIBUNAL ORDER, TO GIVE THE CREDIT OF TAX DEDUCTED AT SOURCE TO THE ASSESSEE FOR BOTH THE ASSESSMENT YEARS UNDER CONSIDERATION, I.E., 2010-11 AND 2011-12. 6. GROUND NO. 2 IN ASSESSMENT YEARS 2010-11 AND 201 1-12, IS CONSEQUENTIAL IN NATURE AND, THEREFORE, DOES NOT RE QUIRE ANY ADJUDICATION, HENCE, DISMISSED. ITA 852 & 853/M/14 4 4. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JULY, 2015. , % ()*+ ' -. / 0 29-07-2015 ) % 1$ SD/- SD/- (RAJENDRA) (A.D. JAIN ) ACCOUNTANT MEMBER /J UDICIAL MEMBER - ' =$ MUMBAI ; / DATED 29-7-2015 [ #.../ R.K. R.K. R.K. R.K. , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. ! / THE RESPONDENT. 3. ' >& () / THE CIT(A)- 2, MUMBAI 4. ' >& / CIT- 11, MUMBAI 5. A#B 1 &CD , ' CD+ , - ' =$ / DR, ITAT, MUMBAI E BENCH 6. 1 E F $ / GUARD FILE. ! ( / BY ORDER, ! A& & //TRUE COPY// )/(* + ( DY./ASSTT. REGISTRAR) , - ' =$ / ITAT, MUMBAI