9911796707
TMI Blog2011 (3) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... ted therefrom had not been deposited, ignoring the fact that the TDS was adjusted against the excess deposits of tax made in earlier year; ii. on facts and circumstances of the case and in law, the learned CIT(A) has erred in stating that "the AO has noted that the appellant had not deducted TDS on subcontracting expenses" when in facts the AO has stated that "the assessee has deducted tax on the payments made to the following parties but not deposited within financial year" 3. During the year under consideration, the assessee admitted certain payments made on various dates on accounts of sub-contracting expenses. The AO has noted from the tax audit report that the certain expenses have been in admissible u/s 40(a) (ia) amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the financial year 2003-04, there was a excess deposits of tax which was intimated to the ITO, TDS, vide letter dated 29.7.2004. The assessee deducted the tax on the payment made in the current year and instead of being deposited had been adjusted against the said excess payment of TDS made in the immediately preceding financial year. The Ld. AR has submitted that as per the CBDT circular No.285, dated 20.10.1980 the excess payment made by the aseseee which is more than the tax deducted at source should be adjusted against the existing tax liability and even after made such liability, the balance amount if any should be refunded to the assessee. The Ld. AR has further submitted that the department has not disputed that the excess depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequent year. He has relied upon the orders of the lower authorities. 9. We have considered the rival contentions and relevant record. As far as the Board circular no.285 dated 21.10.1980 is concerned, there is no doubt that the Board has clarified and issued the instructions that the excess payment should be adjusted against the existing tax liability after such liability if any balance amount remained, the same may be refunded to the assessee. The Hon. Jurisdictional High Court in the case of BASF (India) Ltd and another V/s W Hasan CIT reported in 280 ITR 136 (Bom) held that the said circular create wasted right in favour of the deductor for refund of the TDS. There is no quarrel on the point that the assessee has right to claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of excess deposit of the TDS deducted by the assessee on the payment during subsequent year cannot be with held by the assessee. The assessee has to deposit the TDS in compliance with the provisions of the Act. Since, the TDS deducted by the aseseee is not the assessee's own tax liability but the assessee is under obligation and duty to deposit the same with the government and therefore, non-deposit of the TDS deducted by the assessee is clear contradiction of the provisions of the Act. Moreover, when the TDS is deducted on the payment, the said payment are allowed as expenditure only when the assessee fulfils the conditions as prescribed u/s 40(a)(ia). Therefore, irrespective of the facts that the assessee is entitled to claim the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
