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TMI Blog2017 (1) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot result in denial of credit of TCS. In the instant case, AR has submitted that the income has been brought to tax in the hands of the assessee firm and accordingly the credit for TCS should be granted to the assessee firm. In this regard, we find that there is no findings of fact by the AO in this regard and in A.Y. 2012-13 the ld. CIT(A) has stated that “the claim of the appellant that all the income of partners of the firm has been include in the income of the appellant is also not fully verifiable from the documents filed by the appellant. In light of above discussions, we set-aside the matter in both the years to the file of the AO with the directions to verify whether the corresponding income in respect of which TCS has been claimed by the assessee firm has been brought to tax in the hands of the asessee firm or not. Where after due examination and verification, the AO find that the corresponding income has been brought to tax in the hands of the assessee firm, the AO is directed to allow credit for TCS in the hands of the assessee firm. - ITA No. 676/JP/15, ITA No. 991/JP/15 - - - Dated:- 11-1-2017 - Shri Kul Bharat, JM And Shri Vikram Singh Yadav, AM Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 4,92,071/-. The TCS certificates submitted by the assessee were as under: 1. RSBCL, Jaipur ₹ 73,662.39 (Sh. Ashok Kumar) 2. RSBCL, Jaipur ₹ 23,635.14 (Sh. Anand Kumar) 3. RSBCL, Jaipur Rs.83,848.82 (Sh. Veer Kr. Srivastava) 4. RSBCL, Jaipur ₹ 84,850.03 (Sh. Sriram Jaiswal) 5. RSBCL, Jaipur ₹ 94,604.02 (Sh. Hari Narain Singh) 6. RSBCL, Jaipur ₹ 1,12,241.52 (Sh. Anil Srivastava) 7. Dist.Excise Officer, Jaipur ₹ 12,568.00 (Sh. Anand Kumar) 8. Raj.State G.S.M, Jaipur ₹ 6,662.00 (Sh. Anand Kumar) ₹ 4,92,071.92 In the order passed by the AO, it has been mentioned that it is not a mistake apparent from the record. In this context, it may be mentioned that above TCS certificates have been issued mainly by the RSBCL, Jaipur in name of v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the deductor has furnished information stating that tax has been collected at source in the names of partners of the appellant firm. As far as sub-rule (2) of Rule 37BA is concerned, the appellant has not fulfilled the conditions laid down in the proviso to sub-Rule (2). Therefore, no credit can be given to the appellant. Sub Rule (4) also states that credit for the tax deducted at sources shall be granted on the basis of information relating to deduction of tax furnished by the deductor to the income tax authority or the person authorised by such authority. As in the case under consideration, the deductor has informed that names of the person in respect of whom the tax has been collected at source are names of partners of the appellant firm, therefore, I am of the considered view that the AO was justified in not giving credit of TCS claimed by the assessee. The appellant has filed copy of the order of CIT(A), Ajmer dated 07.03.2012 but with due respect to my predecessor, for the reasons discussed above, I do not agree with his view of this issue. Other decisions relied upon by the appellant have been given on different set of facts and are not applicable to the case under cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding of the Coordinate Bench in ACIT vs. Shri Krishanlal Meel Party (supra) is reproduced as under: (8) We have considered the rival submissions, gone through the orders of the authorities below and carefully perused entire material placed on record. In so far as the merit of case is concerned, the issue is squarely covered by the decision of the Hon ble Andhra Pradesh High Court in the case of CIT vs. Bhooratnam company reported at (2013) 262 CTR 405 (AP) wherein the Hon ble High Court has held as under: Where income shown in the TDS certificate was offered to tax by the assessee then TDS credit is allowable on the basis of TDS mentioned in the TDS certificates irrespective of the fact that TDS certificate was not in assessee s name (9) The facts and circumstances in the instant case are exactly identical. Furthermore, the findings recorded by the ld. CIT(A) to the effect that the members of AOP has not claimed any TDS/TCS in the individual returns, therefore, the assessee AOP is entitled for credit of TCS/TDS in respect of income earned by the AOP. The findings recorded by the ld. CIT(A) has not been controverted by the ld. DR by bringing any cogent materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a person other than those referred to in sub-section (1) and sub-section (2) and also the assessment year for which such credit may be given. Section 206C reads as under: (1) Every person, being a seller shall, at the time of debiting of the amount payable by the buyer to the account of the buyer or at the time of receipt of such amount from the said buyer in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, collect from the buyer of any goods of the nature specified in column (2) of the Table below, a sum equal to the percentage, specified in the corresponding entry in column (3) of the said Table, of such amount as income-tax: [TABLE Sl. No. Nature of goods Percentage (1) (2) (3) (i) Alcoholic Liquor for human consumption One per cent (ii) Tendu leaves Five per cent (iii) Timber obtained under a forest lease Two and one-half ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (1C) or sub- section (1D)] shall be without prejudice to any other mode of recovery. Rule 37BA(2)(i) of Income tax Rules as amended by the Income Tax (Eight amendment) Rules 2011 reads as under: Where under any provisions of the Act, the whole or any part of income on which tax has been deducted at source is assessable in the hands of a person other than the deductee, credit for the whole or any part of tax deducted at source, as the case may, shall be given to the other person and not to the deductee. Provided that the deductee files a declaration with the deductor and deductor reports the tax deduction in the name of the other person in the information relating to deduction referred to in sub-rule (1). 2.7 The essence of the above stated provisions and corresponding rules is that the tax deducted at source (TDS) is nothing but tax, and credit for TDS should go to the person in whose hands the income is rightfully and finally assessed to tax in accordance with law irrespective of the person in whose hands the TDS has been deducted and TDS certificate has been issued at first place. If we look at the provisions of section 206C read with section 190 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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