Sungard solutions (I)P ltd, Bangalore V. Deputy Commissioner of Income Tax, Bangalore

MA 78/BANG/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3527 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 09-10-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 25-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY KUMAR CITIII
• Assessee Lawyers: SHAILESH MAKWANA
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH C BEFORE SHRI VIJAYPAL RAO , JUDICIAL MEMBER AND SHRI JASON P. BOAZ, ACCOUNTANT MEMBER M.P. NO.78/BANG/2015 (IN I.T ( T.P) A. NO. 128 /BANG/20 1 4 ) (ASSESSMENT YEAR : 200 9 - 10 ) M/S. SUN G ARD SOLUT IONS (INDIA) PVT. LTD., [FORMERLY AUTOMATED SECURITIES CLEARANCE (INDIA)] 4 TH FLOOR, EMBASSY ICON, 3, INFANTRY ROAD, BANGALORE - 560 001 . PETITIONER . P A N A A C CA 7484M VS. DY. COMMISSIONER OF INCOME TAX, CIRCLE 12 ( 3 ), BANGALORE. .. RESPONDENT. PETITIONER / A SSESSEE BY : SHRI SHAILESH MAKWANA, C.A. R E VENUE BY : SHRI SANJAY KUMAR , CIT - III (D.R) . DATE OF H EARING : 9.10 .2015. DATE OF P RONOUNCEMENT : 9.10 .2015 . O R D E R PER SHRI JASON P. BOAZ , A.M . : THIS MISCELLANEOUS PETITION ( M.P. IN SHORT) IS RAISED IN RESPECT OF THE TRIBUNAL S ORDER IN IT(TP)A NO.128/BANG/2014 FOR ASSESSMENT YEAR 2009 - 10. 2. IN THIS M.P., THE PETITIONER SUBMITS THAT IN THE IMPUGNED ORDER OF THE TRIBUNAL, THE ADDITIONAL G ROUND OF APPEAL NO.3 FILED PERTAIN ED TO SHORT GRANT OF TDS CREDIT CLAIMED, 2 M.P. NO.78/BANG/2015 WHEREBY THE ASSESSING OFFICER HAD ERRED IN NOT GRANTING CREDIT FOR TAXES DEDUCTED AT SOURCE OF RS.1,45,263 ON PAYMENT S BY VENDOR S T O THE COMPANY AMOUNTING TO RS.21,02,331. IT I S SUBMITTED THAT IN THE IMPUGNED ORDER , TH OUGH THIS GROUND NO.3 OF SHORT CREDIT OF TDS HAS BEEN REPRODUCED AT PAGE NO.6 OF THE TRIBUNAL ORDER, THE SAID GROUND HAS NOT BEEN ADJUDICATED. I T IS SUBMITTED THAT NON - ADJUDICATION OF THE GROUND RAISED IN THE APPEAL CONSTITUTES A M ISTAKE APPARENT ON RECORD AND HENCE THE IMPUGNED ORDER IS RECTIFIABLE UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') . IN THESE CIRCUMSTANCES, IT IS SUBMITTED THAT THE IMPUGNED ORDER SUFFERS FROM A MISTAKE APPARENT FROM RECORD AND THEREFORE THE PETITIONER PRAYS THAT THE IMPUGNED ORDER MAY BE RECALLED AND RECTIFIED BY ADJUDICATION OF THE ADDITIONAL GROUN D RAISED BY THE ASSESSEE AT GROUND NO.3 ON THE ISSUE OF SHORT CREDIT OF TDS. 3. WE HAVE HEARD BOTH THE LEARNED AUTHORISED REPRESENTATIVE FOR THE PETITIONER AND THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR REVENUE IN THE ABOVE MATTER AND PERUSED AND CAREFULLY CO N SI DERED THE MATERIAL ON RECORD. WE FIND FROM A PERUSAL OF THE IMPUGNED ORDER OF THE TRIBUNAL THAT , IN FACT , THE ADDITIONAL GROUND OF APPEAL NO.3 ON SHORT CRED IT OF TDS THOUGH REPRODUCED ON PAGE 6 THEREOF HAS NOT BEEN ADJUDICATED UPON BY THE TRIBUNAL. IN THESE CIRCUMSTANCES , WE NOW PRO CEED TO ADJUDICATE THE SAID ISSUE. 3 M.P. NO.78/BANG/2015 ADDITIONAL GROUND NO.3 OF SHORT CREDIT OF TDS. 4. THE ADDITIONAL GROUND RAISED IS AS UNDER : - 3 . SHORT CREDIT OF TDS ON THE FACTS AN D CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED DEPUTY COMMISSIONER OF INCOME TAX , CIRCLE - 12(3) ( LEARNED AO ) HAS ERRED IN NOT GIVING CREDIT FOR THE TAXES DEDUCTED AT SOURCE ON THE PAYMENTS MADE BY VENDORS TO THE APPELLANT AMOUNTING TO RS. 21,02,33 1. 3.2 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED AO FAILED TO APPRECIATE THAT THE APPELLANT HAS TAKEN CREDIT OF THE TDS AS PER RULE 37BA OF THE INCOME - TAX RULES, 1962 WHEREIN IT IS STATED THAT CREDIT OF THE TDS SHALL BE GIVEN IN THE ASSESSMENT YEAR IN WHICH THE INCOME IS ASSESSABLE. THE APPELLANT HAS RECOGNIZED THE INCOME ON THE ACCRUAL CONCEPT OF ACCOUNTING PRESCRIBED BY THE ICAI VIDE ACCOUNTING STANDARD 9 REVENUE RECOGNITION. ACCORDINGLY, THE INCOME FROM BIRLA SUN LIFE INS URANCE WAS RECOGNIZED IN FY 2008 - 09 AND CORRESPONDING TDS CREDIT OF RS. 1,957,068 WAS CLAIMED BY THE APPELLANT IN AY 2009 - 10. 3.3 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED AO ERRED IN NOT FOLLOWING INSTRUCTION NO. 5/2013 F.NO.275 /03/2013 - IT(B), DATED 8 JULY 2013 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES PURSUANT TO THE JUDGMENT OF THE DELHI HIGH COURT IN COURT IN ITS OWN MOTION VS UOI (352 ITR 273) WHICH STATED THAT WHEN AN ASSESSEE APPROACHES THE AO WITH REQUISITE DETAILS AND P ARTICULARS IN THE FORM OF TDS CERTIFICATE AS EVIDENCE AGAINST ANY MISMATCHED AMOUNT, THE AO WILL GRANT CREDIT OF TDS TO THE ASSESSEE AFTER ASCERTAINING WHETHER THE DEDUCTOR HAS MADE PAYMENT OF THE TDS TO THE GOVERNMENT. ACCORDINGLY, THE LEARNED AO HAS E RRED IN NOT TAKING COGNIZANCE OF THE COPIES OF FORM 16A IN RELATION TO TDS DEDUCTED BY BANK OF INDIA, HDFC AND MSEB SUBMITTED BY THE APPELLANT AND PROVIDE DUE CREDIT TO THE APPELLANT OF RS.145,263. 5. ON PERUSAL OF THE GROUND NO .3 OF SHORT CREDIT OF TDS (SUPRA) AND THE RELEVANT MATERIAL ON RECORD, WE FIND THAT THE DOCUME NTARY EVIDENCE IN THIS REGARD PLACED BEFORE US , WHICH IS THE PETITIONER S RECTIFICATION APPLICATION UNDER SECTION 154 OF THE ACT 4 M.P. NO.78/BANG/2015 DT.25.4.2013 FILED BEFORE THE ASSESSING OFFICER ; HAS NOT BEEN EXAMINED BY THE AUTHORITIES BELOW . I N THIS VIEW OF THE MATTER, WE SET ASIDE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE ASSESSEE'S CLAIM OF SH ORT CREDIT OF TDS TO THE EXTENT AS CLAIMED IN GROUND NO.3 AND GIVE CREDIT FOR THE SAME , IF PERMISSIBLE , IN ACCORDANCE W ITH LAW AFTER AFFORDING THE ASSESSEE ADEQUATE OPPORT UNITY OF BEING HEARD IN THE MATTER AND TO FILE DETAILS REQUIRED BEFORE DECIDING THE ISSUE. I T IS ORDERED ACCORDINGLY. CONSEQUENTLY, THE ADDITIONAL GROUND NO .3 OF SHORT CREDIT OF TDS RAISE D BY THE ASSESSEE IS TREATED AS ALLOWED F OR STATISTICAL PURPOSES . 6. IN THE RESULT, THE M.P. FOR ASSESSMENT YEAR 2009 - 10 IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPE N COURT ON 9 TH OCTOBER, 201 5 . SD/ - ( VIJAYPAL RAO ) JUDICIAL MEMBER SD/ - (JASON P BOAZ) ACCOUNTANT MEMBER * REDDY GP COPY TO : 1. APPELLAN T 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE. (TRUE COPY) BY ORDER ASST. REGISTRAR, ITAT, BANGALORE