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TMI Blog2013 (1) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer completed the assessment under normal provisions of the Act at Rs. 1,41,28,246/-, inter-alia, making following additions: - i) Income in respect of difference in TDS certificates Rs. 80,88,000/-; ii) Disallowance out of provisions for expenses Rs. 47,80,510/-. 4. Ld. CIT(A) while partly allowing the assessee's appeal, deleted the addition of Rs. 80,88,000/- on account of difference in receipts as per TDS certificates and those credited to Profit & Loss A/c and also deleted the addition of Rs. 5,63,390/- out of Rs. 47,80,510/- made by the AO on account of provision of expenses. 5. Being aggrieved with the order of ld. CIT(A), the Department is in appeal before us. 6. Ground no. 1 reads as under: - 1. "The ld. Commissioner of Income Tax (Appeals) erred, in law and on the facts of the case, in deleting the addition of Rs. 80,88,000/- made by the AO on account of difference in receipts as per TDS certificate and those credited to Profit & Loss Account." 7. Brief facts apropos this issue are that the AO noticed that there was discrepancy of income amounting to Rs.80,88,000/- as reported in the audited financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Income shown in that assessment year. As the assessee has claimed entire TDS for the year under consideration the sum of Rs. 80,88,000/- is taxable for this assessment year. The confirmation filed by the assessee from M/s Mysore Breweries Ltd. is only an internal arrangement and does not deserve to be relied upon as a concrete evidence in its favour." He, accordingly, made an addition of Rs. 80,88,000/-. 8. Before ld. CIT(A), the assessee reiterated the submissions made before Assessing Officer and further submitted that there were no provisions under the Act for issuance of revised TDS certificate and, therefore, the clerical mistake committed at the end of Mysore Breweries Limited could not be corrected by issuing revised TDS certificate. The assessee relied on the decision of Hon'ble Delhi High Court in the case of Sudhir Sekhri vs. ACIT, 2010, wherein it was, inter-alia, held that where the issuer of the certificate had certified that the mistake had crept in due to the pre-fed computer programme and certified that no other charges other than what was reflected in the books of account of the assessee had been paid to the assessee, the addition was not justified merely o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S amount attributable to Rs. 80,88,000/- which works out to Rs. 84,924/-, should be allowed as a credit of tax to the assessee, when the income component was neither being admitted, nor was being offered to tax. 17. Before ld. CIT(A), the assessee had relied on following decision: - i) Sandvik Asia Ltd. vs. CIT (2006), 280 ITR 643 & ii) CIT vs. Lear Automotive India Ltd., ITA No. 110/2010 dated 05/02/2010. 18. Ld. CIT(A) after considering both these decisions held that both were not applicable because the decision of Hon'ble Supreme Court was rendered with reference to interest on interest payable u/s 244 and the decision of Hon'ble Delhi High Court was per incurium because the relevant circulars of the CBDT on the issue of grant of refund of amounts paid in excess of tax deducted and/ or deductible, had not been considered. He referred to Circular No. 285 dated 21/10/1980 and Circular No. 2/2011 dated 27/04/2011 and pointed out that in the first circular dated 21/10/1980 it has been provided that where excess amount had been deducted, the same can be claimed as a refund by following procedure laid down in the said circular. He further poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; (b) freely advise them when approached by them as to their rights and liabilities and as to the procedure to be adopted for claiming refunds and reliefs." Following the circulars issued by CBDT coupled with the fact that deductor i.e. MBL cannot claim refund of excess TDS, the AO is directed to grant the credit of excess TDS of Rs. 84,924/- while giving effect to this appellate order. However, this refund is arising for reasons of mistakes/error committed on the part of the deductor as well as deductee. In fact, reasons are attributable mostly to the assessee. Therefore, the AO is directed not to grant interest u/s 244A of the I.T. Act to the assessee on account of refund arising on adjudication of this issue. He is directed to withhold such interest in terms of 244A(2) of I.T. Act." 21. We have considered the submissions of both the parties and have perused the record of the case. 22. We are of the opinion that this issue is squarely covered by the decision of Hon'ble Delhi High Court in the case of Lear Automotive India Ltd. (supra), wherein it has been held that credit is to be allowed to the deductee in respect of TD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment has also been submitted before the AO who had not accepted the same as sufficient proof. As a circumstantial proof, this document passes muster and I am inclined to accept this circumstantial evidence in support of its claim of salary expenses. ii) With regard to the Audit Fee, for which provision of Rs. 2,10,138/- was created in the books of the assessee and necessary deduction had been claimed, the appellant has submitted a bill for Rs. 3,94,347/- vide bill No. ADB-101/04 dated 12/06/2003 issued by Price Waterhouse mentioning that the same is claimed towards statutory audit fee. Since this documentary proof has been submitted, so far as the claim of Rs. 2,10,138/- towards "provision for audit fee" is concerned, the evidence submitted is satisfactory and is taken as a circumstantial evidence in support of the claim of deduction to the extent of Rs. 2,10,138/-." 27. The Department's main grievance is that ld. CIT(A) had accepted the details in contravention to Rule 46A of the Income Tax Rules. 28. We have considered the rival submissions of both the parties and have perused the record of the case. 29. As far as ld. CIT(A)'s findings in regard to personne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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