DCIT (LTU) 1, MUMBAI V. BAJAJ HOLDINGS & INVESTMENT LTD (FORMERLY KNOWN AS BAJAJ AUTO LTD), MUMBAI

MA 259/MUM/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3362 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-08-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 23-06-2022
• Assessment Year: 2002-2003
• Appeal Filed On: 25-10-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS; Set aside
• Section: 254(2)

Judgement Text

MA No 259/Mum/2021 In ITA No.7457/Mum/2017 Assessment year: 2002-03 Page 1 of 4 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI 'B' BENCH, MUMBAI [Coram: Pramod Kumar (Vice President), and Vikas Awasthy (Judicial Member)] MA No 259/Mum/2021 In ITA No.7457/Mum/2017 Assessment year: 2002-03 Deputy Commissioner of Income Tax (LTU) 1 Mumbai ...................... Appellant Vs. Bajaj Holdings & Investment Ltd., .................. Respondent (Formerly Known as Bajaj Auto Ltd.) 2 nd Floor, Bajaj Bhavan, 226, Jamnalal, Bajaj Marg, Nariman Point, Mumbai 400 021 [PAN: AAACB3370K] Appearances by Somendu Kumar Das for the applicant Kirit Kamdar for the respondent Date of concluding the hearing : June 24, 2022 Date of pronouncement the order : August 02, 2022 ORDER Per Pramod Kumar, VP: 1. By way of this application the Assessing Officer seeks a recall of the order dated 11.09.2019, passed by us. The reasons of the prayer so made by the Assessing Officer are as follows:- The Assessing Officer in the OGE dated 12.09.2014 to the Ld. CIT(A)'s order dated 29.01.2010 did not grant TDS credit of Rs.22,22,497 / - vide his order dated 29.09.2017. The Assessee, being aggrieved by the order of the Assessing Officer, filed appeal before Ld. CIT (A). The assessee submitted before Ld. CIT(A) that out of TDS credit of Rs.22,22,497 /-, TDS certificate amounting to Rs.8,13,764/- were filed with the department. The Ld. CIT(A) directed the Assessing Officer to verify the claim of assesse in respect of TDS credit of Rs.8,13,764/- and allow credit for the same as per law and if the assesse is entitled for the same. At the same time MA No 259/Mum/2021 In ITA No.7457/Mum/2017 Assessment year: 2002-03 Page 2 of 4 the Ld. CIT(A) confirmed the order of the Assessing Officer in denying the TDS credit for balance amount of Rs. 14,08,733/-. Aggrieved, Revenue filed the instant appeal before the Hon'ble ITAT. Decision of Hon'ble ITAT The Hon'ble ITAT held that the assessee has already filed the details of deduction of TDS along with PAN, TAN and details of deductors. Therefore, we are not in agreement with the conclusion drawn by the Ld. CIT(A) that TDS certificate has not been filed before the Assessing Officer and therefore no credit could be granted. The Hon'ble ITAT further held that the case of the assessee is squarely covered by the decision of Hon'ble Bombay High Court in the case of Yashpal Sahni vs. Rekha Hajarnavis, ACT & Ors. (supra) wherein it has been held that it is sufficient that tax has been deducted at source and then Revenue cannot recover the TDS amount with interest from the petitioner once again. The Hon'ble ITAT, respectfully following the decision of the Hon'ble Bombay High Court set aside the order grand of Ld. CIT(A) and direct the AO to allow the credit of Rs.14,08,733 /- to the assessee. In this regard it is humbly submitted that the Hon'ble ITAT has erred in directing the Assessing Officer to allow credit for TDS, when such credit cannot be granted in the absence of the relevant TDS certificates. Therefore, there is a mistake apparent from the records in the order of the ITAT. In view of the above, the undersigned herein prays that the Hon’ble ITAT may kindly recall its order in ITA No. 7457/Mum/2017 for AY 2002-03 (assessee’s appeal) dated 11.09.2019 in its entirety in view of the above apparent mistakes and consider matter afresh, as there was a mistake apparent in the order of the Hon’ble ITAT. 2. The learned Departmental Representative submits that it was not open to the Tribunal to direct credit for the TDS when such credit cannot be granted in the absence of relevant TDS certificate. It is pointed out that this direction constitutes in mistake apparent from the record and need to be rectified u/s. 254(2) as is prayed in this application. The learned Departmental Representative relies on the submissions extracted earlier in this order in the miscellaneous application. 3. Learned counsel for the assessee on the other hand points out that the present application proceeds on the misconception that there was a direction to the Assessing Officer to grant credit in respect of the TDS even in the absence of TDS certificates. It is his contention all that the Tribunal has done is direct to the Assessing Officer not to enforce demand in respect of the tax deducted at source there is thus no infirmity in the order of the Tribunal. 4. Having heard the rival contentions and having perused the material on record, we find in the impugned order the Tribunal has inter alia observed as follows:- 6. After hearing both the parties and perusing the material on record, we observe that in this case the only issue is with regard to non granting of TDS credit of Rs.14,08,733/- qua which the TDS certificate could not be furnished by the assessee as the same were not given to the assessee, however, the assessee has filed the details of the of the deductors such as PAN numbers, TAN numbers who have deducted the TDS. We also observe that in the first round, the Ld. CIT(A) after following the order of Hon’ble Bombay High Court in the case of Yashpal Sahni vs. Rekha MA No 259/Mum/2021 In ITA No.7457/Mum/2017 Assessment year: 2002-03 Page 3 of 4 Hajarnavis, ACIT & Ors. (supra) has directed the AO not to recover the said TDS credit or to allow the TDS credit to the assessee, however, in the second round the Ld. CIT(A) denied the credit citing the reasons that the assessee has not furnished the TDS certificates before the AO. In the present case before us this is not the case of the Department that TDS has not been deducted at source on behalf of the assessee but the only contention of the Department is that the certificate was not filed before the AO. The assessee has already filed the details of deduction of TDS along with PAN, TAN and details of deductors. Therefore, we are not in agreement with the conclusion drawn by the Ld. CIT(A) that TDS certificate has not been filed before the AO and therefore no credit could be granted. The case of the assessee is squarely covered by the decision of Hon’ble Bombay High Court in the case of Yashpal Sahni vs. Rekha Hajarnavis, ACIT & Ors. (supra) wherein it has been held that it is sufficient that tax has been deducted at source and then Revenue cannot recover the TDS amount with interest from the petitioner once again. We, therefore, respectfully following the decision of the Hon’ble Bombay High Court set aside the order of Ld. CIT(A) and direct the AO to allow the credit of Rs.14,08,733/- to the assessee. 5. These observations may prima facie give an impression that the directions are for giving TDS even in the absence of the TDS certificates concerned. However, this credit is only for the limited purposes of not enforcing the related tax demand-exactly what the assessee had prayed for and exactly what Hon’ble jurisdictional High Court, in the case of Yashpal Sahni vs ACIT [(2007) 293 ITR 539 (Bom)], has held to be permissible. Thus, when viewed in the context of the prayer of the assessee and facts of the case, there is no infirmity, in substance, in the decision of the Tribunal. Accordingly, making it clear that the credit is limited for the non-enforcement of recovery of the tax from the assessee, and, subject to this clarification, we see no need to interfere in the matter. 6. In the result, miscellaneous application is dismissed-subject to the observation above. Pronounced in the open court today on the 02 nd August, 2022. Sd/- Sd/- Vikas Awasthy Pramod Kumar (Judicial Member) (Vice President) Mumbai, dated the 02 nd August, 2022 Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) DR (6) Guard File MA No 259/Mum/2021 In ITA No.7457/Mum/2017 Assessment year: 2002-03 Page 4 of 4 By order True Copy Assistant Registrar/ Sr. PS Income Tax Appellate Tribunal Mumbai benches, Mumbai