TaxTMI 
TaxTMI 
2019 (6) TMI 1473
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..../s 143{1) of the Income Tax Act,1961 dated 25/10/2010 and the order passed u/s 143(3) of the Income Tax Act,1961 dated 30/12/2011 after filing the Revised Return dated 25/03/2011 allowed the credit of TDS of Rs. 109,31,445/-. 1.2 The learned Commissioner of Income Tax (Appeals)-2 failed to appreciate that the assessee received the entire income originally and tax was correctly deducted from the income received. M/s Shapoorji Pallonji and Company Limited has not claimed the TDS on the said income which they were allocated on the basis of composite scheme of arrangement approved by Honorable Bombay High Court and the Department cannot be allowed to retain the tax deducted at source as per the provision of law without credit being available to anybody. This is not the spirit and intention of law. 1.3 The learned Commissioner of Income Tax (Appeals)-2 has also ignored the fact that the TDS has been claimed at Rs. 1,09,31,445/- by the appellant in the original as well as in the revised return in Form No. ITR-6. The figure of TDS of Rs. 2,81,263/- inadvertently mentioned in the statement of computation of income filed during the scrutiny assessment proceedings does not tantamount to ....
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....e submitted that TDS certificates were in assessee's name and the assessee had already refunded the Income Tax refund so received to M/s Shapoorji. The assessee also controverted the stand of Ld. AO by submitting that the assessee had not made any such claim of reduced TDS but inadvertently mentioned the figures of TDS as Rs. 2,81,263/- in the computation of income. The same was sought to be fortified by the fact that the correct amount of TDS was mentioned in Income Tax Return Form ITR-6. The attention was also drawn to the fact that no prior notice was issued before passing order under Sec.154. However, the same could not find favor with Ld. CIT(A) who concluded that Ld. AO was justified in rectifying the mistake which crept in while framing the assessment. Aggrieved, the assessee is in further appeal before us. 4. The Ld. Authorized Representative for assessee, drawing our attention to the documents placed in the paper-book, submitted that the demand raised against the assessee was unjustified. Reliance has been placed on the decision of Hon'ble High court of Calcutta in CIT V/s Ganesh Narayan Brijlal Ltd. [147 DTR (Cal) 136], decision of Hon'ble Andhra Pradesh High Court CIT ....
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....en the assessee and other entities as approved by Hon'ble Bombay High Court on 06/07/2010 determining the rights & obligations of the entities inter-se under the scheme. Further, the perusal of assessee's Form 26AS reveal that the TDS of Rs. 109.31 Lacs has been deducted against the PAN of the assessee and the assessee is entitled for the credit of the same. It is only because of the aforesaid scheme, certain assets & liabilities including corresponding profits & losses, has been transferred by the assessee to the other entity. The Ld. AR has submitted that the assessee has already refunded the proportionate Income Tax Refund to the other entity which would further strengthen the assessee's claim to get full TDS credit as reflected in Form 26AS. 5.4 The Hon'ble High Court of Calcutta in the case of CIT V/s Ganesh Narayan Brijlal Ltd. [supra], after considering the provisions of Section 199 has held as under: - 5. Mr. Agarwal seeking to counter the submission advanced by Mr. Mazumder, drew our attention to sub-section (1) of Section 199 of the Income Tax Act, 1961, which provides as follows : "199. Credit for tax deducted. (1) Any deduction made in accordance with the foregoing....
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....ificates have not been doubted, credit has to be granted to the TDS mentioned therein for the assessee. 18. Rule 37BA is a procedural provision dealing with the manner of giving credit for tax deducted at source for the purposes of section 199. It therefore applies to pending proceedings. As observed in State of Madras v. Lateef Hamid & Co. AIR 1972 SC 1781, where a new procedure is prescribed by law, it governs all pending cases. 19. In Tikaram & Sons v. Commissioner of Sales Tax AIR 1968 SC 1286 it was held that alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be. The amendment to Rule 37 BA mentioned above which has been introduced by the Income Tax (8th amendment) Rules, 2011 notified vide Notification No. 57/2011 dated 24-10-2011, being procedural in nature, would have retrospective effect and has to be given effect to. 20. The Revenue cannot be allowed to retain tax deducted at source without credit being available to anybody. If credit of tax is not allowed to the assessee, and the joint venture has not filed a return of income, then credit of the TDS cannot be taken by anybody. This is not the....
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....pect of the said TDS claim was not that of the assessee, given that M/s Relcom (the assessee) and M/s REPL are sister concerns and M/s REPL has not raised any objection with regard to the assessee's TDS claim of Rs. 1,20,73,097/-. 8. This Court's reasoning is supported by a ruling of the Division Bench of the Andhra Pradesh High Court in CIT v. Bhooratnam & Co. [2013] 357 ITR 396/216 Taxman 6/29 taxmann.com 275 where the Court noted as follows: "In our view, the CIT (Appeals) and the Tribunal have rightly held that the assessee is entitled to the credit of the TDS mentioned in the TDS certificates issued by the contractor, whether the said certificate is issued in the name of the Joint Venture or in the name of a Director of the assessee company. They have considered the terms of the agreement dated 12-03-2003 among the parties to the joint venture and held that credit for TDS certificates cannot be denied to the assessee while assessing the contract receipts mentioned in the said certificates as income of the assessee. The income shown in the TDS certificates has either to be taxed in the hands of the joint venture or in the hands of the individual co-joint venturer. A....