TaxTMI 
TaxTMI 
2017 (10) TMI 623
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....he CBDT Circular No. 551 while holding that there was no need to file a return of income for recipient of income to claim the refund of TDS. He should have appreciated that in view of CBDT Circular No. 7/2007 and section 200A of the Income-tax Act, 1961 as amended w.e.f 01.04.2010, refund of TDS could be claimed only by a deductor subject to fulfillment of certain conditions but not the deductee. He should have appreciated that a deductee could claim the refund of TDS, only as per the procedure laid down under law by way of making a claim of refund in return of income filed u/s 139." (2) "Without prejudice to the above ground, on facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing the appeal u/s. 154 o....
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.... 201(14) of the Income Tax Act, was treated as an 'assessee in default' under section 201 of the Act for its failure to deduct tax at source under section 195 from the payment of USD 11,206,029,859.05 made on 08.5.2007 to Hutchison Telecommunications International Limited, Cayman Islands. Through a subsequent order dated 22.10.2010 the total demand raised on the assessee in terms of the provisions of sections 201(1) and 201(14) of the Act was quantified by the AO at Rs. 11217,94,68,800. The Hon'ble Supreme Court, on an application for stay of such demand filed by the assessee before it, vide its order dated 15.11.2010 (further clarified through another order dated 26.11.2010), directed that the assessee was to deposit a sum of R....
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....DS so computed amounting to Rs. 49,94,65,574 the balance refund of Rs. 2568,90,59,016 was paid to the assessee. 4. Through its letter dated 03.04.2012 filed on 09.04.2012 before the AO the assessee company requested the AO to rectify the order dated 20.03.2012 issued by the AO quantifying the amount refundable to the assessee. The assessee in this letter had contended that the tax deducted at source from the interest amount payable to it was at 42.024 percent whereas the assessee being a resident of Netherlands, the applicable rate of deduction of tax at source on interest under the India-Netherlands Double Tax avoidance Agreement could only be a maximum of 10 percent. Reliance was placed by the assessee company on the Mumbai Tribunal de....
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....ecord and to issue the correct quantum of refund to the assessee along with statutory interest payable. The revenue is aggrieved by the order passed by Ld CIT(A). 4. The first issue that requires to be adjudicated is whether the tax deduction of tax at source at wrong rates would constitute mistake apparent from record or not?. We have noticed that the revenue has granted interest to the assessee as per the directions of the Hon'ble Supreme Court and it is the assessing officer, who has deducted tax at source @ 42.024% from the interest amount. According to the assessee, it is required to pay tax on the interest income @ 10% as per the provisions of DTAA and accordingly it has filed a petition before the AO requesting him to correct the ....
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....ction of tax at source at wrong rate would constitute mistake apparent from record. We also notice that the AO has not given any reason or authority to show that the rate of tax of 42.024% was correct in accordance with the law. Whereas, the assessee is taking support of the provisions of DTAA to contend that the rate of tax applicable is only 10%. Hence application of wrong law would also result in mistake apparent from record. In our view, the foregoing discussion would also show that this issue does not give rise to any debatable issue at all. Accordingly we are of the view that the Ld CIT(A) was justified in directing the AO to entertain the rectification application. 6. Since the assessing officer himself was the deductor of TDS and....