2023 (6) TMI 933 - HC - Income Tax

Grant of credit for tax deducted at source u/s 195 and surcharge - ITAT allowed grant of credit of such tax deducted at source - whether tax credit could have been given qua tax deducted at source, vis- -vis advances received by the respondent/assessee, which is an entity located in Japan, from the Board against off-shore supplies made in the succeeding period i.e., FY 2006-2007 AY 2007-2008 ? - HELD THAT - Tribunal having returned a finding of fact that there was nothing on record to suggest that any taxable income arose or accrued in India in favour of the respondent/assessee either in AY 2006-2007 or AY 2007-2008, the impugned order does not call for any interference. The reasoning set forth in the impugned order by the Tribunal is unimpeachable. Tribunal was right in holding that the advances which are once held to be not income, could not have been subjected to tax at source u/s 195 of the Act. Tribunal was right in concluding that the refund or grant of credit of such tax deducted at source, could not be denied. No substantial question of law - Decided against revenue.

Summary

Issues Involved:
The judgment involves the issues of condonation of delay in re-filing the appeal and the challenge to the order passed by the Income Tax Appellate Tribunal regarding tax credit for amounts deducted at source and surcharge.

Condonation of Delay:
An application was filed by the appellant seeking condonation of delay of 300 days in re-filing the appeal. The senior counsel for the respondent did not oppose the application, leading to the delay being condoned and the application being disposed of accordingly.

Challenge to Tribunal Order:
The appeal pertains to Assessment Year 2005-06 and challenges the Tribunal's order regarding the refusal to grant credit for tax deducted at source and surcharge amounting to Rs. 1,94,54,135. The respondent had received advances against off-shore supplies, with the Board deducting tax at source and surcharge before remitting the net amount to the respondent. The Tribunal's findings emphasized that no taxable income arose or accrued in India for the respondent in the relevant assessment years, leading to the conclusion that the tax credit could not be denied. The Tribunal correctly held that advances not considered as income could not have been subjected to tax at source under Section 195 of the Act, and thus, the refund or credit of the tax deducted at source could not be denied.

Conclusion:
The High Court upheld the Tribunal's decision, stating that no substantial question of law arose for consideration. The reasoning provided by the Tribunal was deemed unimpeachable, and the appeal was closed accordingly.