TaxTMI 
TaxTMI 
2017 (8) TMI 1287
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....facts are that the assessee filed return declaring total income at Rs. 22,13,120/- on 30/10/2007. The case of the assessee was picked up for scrutiny assessment and the assessment under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act) was framed vide order dated 24.12.2009. Subsequently, the assessee filed a rectification application, seeking rectification of the assessment order. Praying therein to give credit of the TDS amounting to Rs. 7,53,544/-. The said application was dismissed against this. The assessee filed an appeal before Ld. CIT(A), who after considering the submissions dismissed the appeal. Now, the assessee is in further appeal before this Tribunal. 3. At the time of hearing, the Ld. Counsel for the assessee submitted that he does not wish to press ground no. 3. 4. Ld. Counsel for the assessee submitted that the apropos to Ground no. 1 and 2, the Ld. Counsel for the assessee reiterated the submissions as made in the written submissions. He submitted that Ld. CIT(A) was not justified in rejecting the claim of the assessee for credit of tax collected at source. He submitted that the AO as well as the Ld. CIT(A) rejected the claim on tec....
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....unts to blowing hot and cold. The fact that State Govt. has collected TDS and paid it to Govt. treasury is undisputed. It is abundantly clear that assessee's case is covered under the TCS provisions and that is why the TCS is collected in this behalf u/s 206C. It is undisputed fact that that TCS payment is duly certified by payer Rajasthan Govt. in prescribed Form No. 27D; consequently the credit of TCS has to be given to assessee as a matter of right, more so, when the corresponding income from contracted activities as per Rajasthan Minor Minerals Concession Rules, 1986, is included in assessee's income. In these facts and circumstances, I find merit in the arguments of the Ld. Counsel for the assessee that denial of credit tantamount to confiscating assessee's tax for which corresponding income is included in its taxable income. Such confiscation amounts to unjust enrichment on the part of the Govt. which is not permissible. In view of the entirely of the facts and circumstances of the case, the assessee claim of credit of TCS amount as mentioned above is justified and deserves to be allowed. This ground of the assessee in both the years is allowed." However, Ld. CI....
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....lic sector company (hereafter in this section referred to as "licensee or lessee") for the due of such parking lot or toll plaza or mine or quarry for the purpose of business shall, at the time of debiting of the amount payable by the licensee or lessee to the amount of the licensee or lessee or at the time of receipts of such amount from the licensee or lessee in cash or by the issue a cheque or draft or by any other mode, whichever is earlier, collect from the licensee or lessee of any such licence, contract or lease of the nature specified in column (2) of the Table below a sum equal to the percentage, specified in the corresponding entry in column (3) of the said Table, of such amount as income-tax". From the above, it is clear that tax is collectible at source from the lessees of the mine, who had actually carried out the mining operation on such additional royalty. On the other hand, it has been deposited by the appellant (toll contractor) with the State Government i.e. the mining engineer. In terms of section 206C(4), the credit for this tax has to claimed by the lessee and not by the toll contractor as it is not covered under 206C(IC). As a result, the credit for this TCS....
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....he additional royalty on which TCS has been collected, is not offered to tax by the appellant. The said income was taxable in the hands of lessee of mine. It would imply that TCS being only a manner of recovery of tax, it would be allowable only against the corresponding income, as otherwise tax on one income might get set off against TCS on another, and it would be defective of its concepts as well as contradictory to the provisions of law. In the case of ITO Vs Shri Anupallavi Finance & Investments (2011-TIOL-78-ITAT-Mad), the bone of contention was the year for which the credit for TDS was to be allowed, and which, as per the clear prescription of law, was to be the year for which corresponding income was assessable to tax. It was argued that the issue stood settled in favour of revenue, i.e. as far as the tribunal was concerned, by its Third Member decision in the case of Pradeep Kumar Dhir Vs ACIT (107 ITD 118 [Chd] [TM]). The Third Member held that the assessee shall be, in terms of section 199 of the Income-tax Act, allowed credit for TDS on prorata basis i.e. in the proportion in which the income which is the subject matter of TDS stands offered to tax for the current year.....
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....arising for our adjudication i.e. the year of allowance of credit for TDS stands addressed by the clear language of the provisions itself. the same, rather, presents an ideal situation where the course yielded by plain common sense matches with that statutorily provided i.e. allow credit for TDS against the corresponding income on its assessment, so that even the absence of section 199 would yield the said course in view of the dictum by the Hon'ble apex court that tax laws should be applied, as far as circumstances may admit, in an equitable manner (CIT Vs Ghotia J. H 156 ITR 323). 3.3 Since the appellant is not lessee of the mine but a toll contractor therefore it cannot be given any credit for TCS in view of provisions of section 206C(IC). The Hon'ble Apex Court in Escorts Ltd. Vs. Union of India (199 ITR 43) has held that where a provision is clear as to its scope, that interpretation is to be adopted, irrespective of acceptance of a contrary view by some authority. Further, Rule 37-1 has been inserted by the IT (sixth amendment) Rules 2009 with effect from 01.04.2009. The Rule 37D has been amended with effect from 01.04.2009 vide press release No. 402/92/2006-MC date....