AI Drafter 
TaxTMI 
TaxTMI 
2016 (2) TMI 296
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....That on the facts & in the circumstances of the case and in law, the Ld. CIT(Appeals) has erred in confirming the order of Assessing Officer on account of TCS & interest on TCS assessed u/s 206(6) & 206C(7). 2. Ground No. 2 That on the facts & circumstances of the case & in law, the Ld. CIT(Appeals) has misinterpreted the provision of Sec. 206C(6) & 206C(7). 3. Ground No. 3 That on the facts & circumstance of the case, the Ld. CIT (Appeals) has failed to apply his mind in the facts, and the documents as evidence produced by the appellant assessee. 4. Ground No. 4. That the Ld. CIT(Appeals)called for a remand report and the Assessing Officer came to the conclusion that all the deductee have filed the I.T Returns & paid taxes thereon. On these facts, the finding of the CIT(Appeals) is completely erroneous, perverse & illegal. 5. Ground No.5 That in deciding the appeal the Ld. CIT(Appeals) has misconstrued the Apex Court's judgment as well as that of High Courts which led him to arrive at a arbitrary, vindictive and malafide conclusion. 6. Ground No.6 That the demand of tax on TCS being Rs. 46,77,109/- is illegal & not in accordance in ....
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....7) 293 ITR 226 (SC) wherein it was held that "the tribunal came to the right conclusion that the tax once again could not be recovered from the appellant (deductor assessee) since the tax has already been paid by the recipient of income. However the ld. CIT(A) has disregarded the plea of the assessee by observing as under : "15. It is in this background that the decision rendered by the Hon'ble Supreme Court in the case of Coca Cola (P) Ltd has to be understood and implemented accordingly. In this case it will be against the law to interpret that in each and every case where the deductee has paid the tax, though the onus is on the deductor to deduct the tax, the benefit will be given to the deductor. Such type of interpretation goes against the basic objective of TDS provision which is based on the philosophy "PAY AS YOU EARN". It is true that TDS provision is presumptive form of taxation, however, the point and time of collection is integral part of such provision. Because of such intrinsic character of TDS provision it is considered to be the most important tool of tax collection and it is required that strict and harmonious interpretation of TDS provisions should....
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....lant. It may also be mentioned that the appellant reliance on other two decisions namely Mahindra & Mahindra Ltd. Vs. DCIT [2009] 313 ITR (AT) 263 (Mumbai) (SB) and CIT Vs. Trans Bharat Aviation (P) Ltd [2010] 320 ITR 671 (Delhi) may not be of any help when the ratio of decisions of Hon'ble Supreme Court in the case of Coca Cola (P) Ltd., is not applicable in the case of appellant. 26. In view of above stated discussions I am of the considered view that the action of the AO is as per law and the total amount payable by the assessee at Rs. 46,77,109/- is confirmed on merit. All the grounds of appeal raised by the appellant stand disposed off accordingly." Being aggrieved by this order of Ld. CIT(A) assessee preferred second appeal before us. Shri Saumitra Chowdhury, Ld. Authorized Representative appearing on behalf of assessee and Shri Niraj Kumar, Ld. Departmental Representative appearing on behalf of Revenue. 5. We have heard rival submissions of both the parties and perused the materials available on record. Before us the ld. AR submitted that all the parties to whom sales were made by the assessee have duly furnished income tax returns. Therefore the ld. AR....
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....e on the income declared by him in such return of income, (iv) the i.e, the person responsible for collecting the tax at source under section 206C, has furnished a certificate inform 27BA confirming the aforesaid; (2) rationalise the provisions relating to collection of tax at source; (3) provide relief to the collector of tax at source from the consequences of non/short deduction collection of tax at source and to that extent it is a beneficial provision. Keeping in view the fact that the first proviso to sub-section (6A) of section 206C not only seeks to rationalise the provisions relating to collection of tax at source but is also beneficial in nature in that it seeks to provide relief to collectors of tax at source from the consequences flowing from non/short collection of tax at source after ensuring that the interest of the Revenue is well protected, the proviso would apply retrospectively." 21. Further, we find that under the scheme of Income Tax Act, the provision of TDS and TCS has been enacted to facilitate the collection of tax which is leviable on the recipient of the income as per provision of section 4 of the Act. In other words, TDS or TCS is not a separate ....