CITICORP FOMAMCE )I) LTD, MUMBAI V. ADDL CIT RG 10(1), MUMBAI

ITA 8532/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 5047 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 16-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A V SONDE IZRFKHZ DH LS
• Keywords: Revised return

Judgement Text

CITICORP FINANCE (INDIA) LIMITED - 1 - VK;DJ VIHYH; VF/KDJ.K LH U;K;IHB EQACBZ ESAA IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUM BAI JH VKJ- DS- XQIRK] U;KF;D LNL; ,OA JH JKTSUNZ FLAG YS[KK LNL; DS LE{K BEFORE SHRI R.K. GUPTA JUDICIAL MEMBER AND SHRI RAJ ENDRA SINGH ACCOUNTANT MEMBER VK;DJ VIHY LA[;K /ITA NO.8532/MUM/2011 FU/KKZJ.K O'KZ @ ASSESSMENT YEAR: - 2007-08 CITICORP FINANCE (INDIA) LIMITED, 5 TH FLOOR, PLOT C-61, BANDRA KURLA COMPLEX, G BLOCK, BANDRA EAST, MUMBAI 400 051. CUKE@ VS. THE ADDL. COMMISSIONER OF INCOME TAX, RANGE 10(1), AAYAKAR BHAVAN, MUMBAI. PAN:- AAABCC4881F VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT VIHYKFKHZ DH VKSJ LS @ APPELLANT BY SHRI A.V. SONDE IZR;FKHZ DH VKSJ LS @ RESPONDENT BY SHRI DEEPAK KUMAR SINHA VKNS'K@ VKNS'K@ VKNS'K@ VKNS'K@ ORDER PER RAJENDRA SINGH, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 6.9.2011 OF CIT(A) FOR THE ASSESSMENT YEARS 2007-08 . THE DISPUTE RAISED BY THE ASSESSEE IN THIS APPEAL IS REGARDING CREDIT OF TDS AND ALLOWABILITY OF INTEREST ON INTEREST U/S 244 OF THE INCOME TAX ACT. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IN THE ASSESSMENT YEAR 2007- 08 HAD CLAIMED TOTAL TDS OF RS. 215163912. CLAIM OF RS. 1,65,20,93,44/- HAS BEEN MADE IN THE ORIGINAL RETURN AND FURTHER CL AIM OF RS. 14,271,296 HAD BEEN MADE IN THE REVISED RETURN FILED ON 13.4.2 009. THEREAFTER DURING LQUOKBZ DH RKJH[K @ DATE OF HEARING 5-09-2013 ?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT 13-09-2013 CITICORP FINANCE (INDIA) LIMITED - 2 - THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD MADE F URTHER CLAIM OF RS. 35,683,272/- VIDE LETTER DATED 28.12.2010. THE AO H OWEVER GAVE THE CREDIT OF TDS ONLY TO THE TUNE OF RS. 118,960,393/-. THE A SSESSEE DISPUTED THE MATTER IN APPEAL AND CIT(A), IN THE IMPUGNED ORDER, DIRECTED THE ASSESSEE TO FURNISH ALL TDS CERTIFICATE IN ORIGINAL BEFORE T HE AO WHO WAS DIRECTED TO VERIFY THE CLAIM OF CREDIT OF TDS AND TO ALLOW TDS AS PER ORIGINAL CHALLANS AVAILABLE ON RECORD OR AS PER DETAILS OF SUCH TDS A VAILABLE ON COMPUTER SYSTEM OF THE DEPARTMENT. AGGRIEVED BY THE DECISION OF CIT(A) THE ASSESSEE IS IN APPEAL BEFORE TRIBUNAL. 3. BEFORE US THE, LEARNED AR FOR THE ASSESSEE SUBMI TTED THAT THE AO WAS NOT ALLOWING FOR THE CREDIT OF TDS BECAUSE OF D ISCREPANCY WITH RESPECT TO CREDIT SHOWN IN THE FORM NO. 26AS WHICH IS NOT C ORRECT. IT WAS ARGUED THAT THE CREDIT OF TDS HAS TO BE GIVEN ON THE BASIS OF TDS CERTIFICATES AND IN CASE TDS CERTIFICATES ARE NOT AVAILABLE, ON THE BASIS OF DETAILS AND EVIDENCE FURNISHED BY THE ASSESSEE REGARDING DEDUCT ION OF TAX AT SOURCE. RELIANCE FOR THE SAID PROPOSITION WAS PLACED ON THE JUDGMENT OF HONBLE HIGH COURT OF BOMBAY IN CASE OF YASHPAL SAWHNEY VS . ACIT (293 ITR 539). REFERENCE WAS ALSO MADE TO THE RECENT JUDGMENT OF D ELHI HIGH COURT IN CASE OF COURT ON ITS OWN MOTION VS. CIT (352 ITR 27 3). IN WHICH THE HIGH COURT DIRECTED THE DEPARTMENT TO ENSURE THAT THE CR EDIT IS GIVEN TO THE ASSESSEE ON THE BASIS OF DETAILS AND EVIDENCES FURN ISHED, WHERE THE DEDUCTOR DOES NOT UPLOAD THE CORRECT DETAILS IN THE FORM 26AS. THE LEARNED AR FURTHER POINTED OUT THAT THE NEW SYSTEM OF FORM 26AS WAS APPLICABLE ONLY FROM ASSESSMENT YEAR 2009-10 AND WAS NOT APPLI CABLE IN CASE OF THE ASSESSEE. THEREFORE, IT WAS REQUESTED THAT THE DEPA RTMENT MAY BE DIRECTED TO ALLOW THE CREDIT OF TDS ON THE BASIS OF TDS CERT IFICATE OR INDEMNITY BOND AND ON THE BASIS OF CREDIT SHOWN IN THE FORM 26AS. THE LEARNED DR ON THE OTHER HAND PLACED RELIANCE ON THE ORDERS OF AUTHORI TIES BELOW. 4. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE M ATTER 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 TD S WAS NO REFLECTED IN THE COMPUTER GENERATED FORM 26AS. THE DIFFICULTY FA CED BY THE TAX PAYER IN CITICORP FINANCE (INDIA) LIMITED - 3 - THE MATTER OF CREDIT OF TDS HAD BEEN CONSIDERED BY THE HONBLE HIGH COURT OF BOMBAY IN CASE OF YASHPAL SAHWNEY VS. DCIT (SUPR A) IN WHICH IT WAS HELD THAT EVEN IF THE DEDUCTOR HAD NOT ISSUED TDS C ERTIFICATE, THE CLAIM OF THE ASSESSEE HAS TO BE CONSIDERED ON THE BASIS OF E VIDENCE PRODUCED FOR DEDUCTION OF TAX AT SOURCE AS THE REVENUE WAS EMPOW ERED TO RECOVER THE TAX FROM THE PERSON RESPONSIBLE IF HE HAD NOT DEDUC TED TAX AT SOURCE OR AFTER DEDUCTING FAILED TO DEPOSIT WITH CENTRAL GOV ERNMENT. HONBLE HIGH COURT OF DELHI IN CASE OF COURT ON ITS OWN MOTION V S. CIT (SUPRA) HAVE ALSO DIRECTED THE DEPARTMENT TO ENSURE THAT CREDIT IS GIVEN TO THE ASSESSEE, WHERE DEDUCTOR HAD FAILED TO UPLOAD THE CORRECT DET AILS IN FORM 26AS ON THE BASIS OF EVIDENCE PRODUCED BEFORE THE DEPARTMEN T. THEREFORE, THE DEPARTMENT IS REQUIRED TO GIVE CREDIT FOR TDS ONCE VALID TDS CERTIFICATE HAD BEEN PRODUCED OR EVEN WHERE THE DEDUCTOR HAD NOT IS SUED TDS CERTIFICATES ON THE BASIS OF EVIDENCE PRODUCED BY ASSESSEE REGAR DING DEDUCTION OF TAX AT SOURCE AND ON THE BASIS OF INDEMNITY BOND. WE, T HEREFORE MODIFY 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. THE SECOND DISPUTE IS REGARDING GRANT OF INTERES T ON INTEREST. IT HAS BEEN SUBMITTED BY THE LEARNED AR FOR THE ASSESSEE T HAT THE ASSESSEE WAS ENTITLED FOR INTEREST ON THE EXCESS TAX PAID WHICH HAD NOT BEEN GIVEN TO ASSESSEE AND, THEREFORE, FROM THE DUE DATE OF INTER EST, FURTHER INTEREST HAD TO BE ALLOWED ON THE INTEREST DUE. RELIANCE HAS BEE N PLACED ON THE JUDGMENT OF HONBLE SUPREME COURT IN CASE OF SANDVI K ASIA LTD. VS. CIT AND OTHERS (280 ITR 643). THE LEARNED DR PLACED REL IANCE ON THE ORDERS OF AUTHORITIES BELOW. 6. WE HAVE PERUSED THE RECORDS AND CONSIDERED MATTE R CAREFULLY. THE DISPUTE IS REGARDING GRANT OF INTEREST ON DELAYED P AYMENT OF INTEREST. IN CASE THE ASSESSEE HAS PAID EXCESS ADVANCE TAX OR EX CESS TDS, THE ASSESSEE IS LIABLE FOR REFUND WITH INTEREST AND IN CASE THE INTEREST IS NOT GRANTED ON THE DUE DATE, THE ASSESSEE IS LIABLE FOR FURTHER IN TEREST ON INTEREST, IN VIEW OF THE JUDGMENT OF HONBLE SUPREME COURT IN CASE OF SANDVIK ASIA LTD. VS. CITICORP FINANCE (INDIA) LIMITED - 4 - CIT AND OTHERS (SUPRA). WE, THEREFORE, DIRECT THE A O TO ALLOW THE ASSESSEE INTEREST ON INTEREST IF DUE AS PER LAW IN THE LIGHT OF JUDGMENT OF HONBLE SUPREME COURT IN CASE OF SANDVIK ASIA LTD. (SUPRA). 7. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 13 -9-2013 SD/- SD/- (R.K. GUPTA) (RAJENDRA SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER SKS SR. P.S, MUMBAI DATED 13.9.2013 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, C BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI