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TMI Blog2018 (7) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... TDS of Rs. 9,93,555/- deducted from the revenue included in the computation of the Income under the head Profits from Business and Profession during the previous year ended 31st March, 2008. The TDS of Rs. 9,93,555/- was paid by the Appellant's clients on 30th March, 2010. The TDS certificates were provided to the Appellant much after the due date of filing the return. The TDS was not claimed with the return as the same was deducted and paid to the Revenue Department much later then the due date of filing return. The Appellant vide his letter dated 10th July, 2013 made an application before the AO to grant the credit the TDS." 3. The brief facts of the case are that the assessee is a company engaged in the business of clearing and forwarding agent. The assessee filed return of income on 20-09-2008 declaring total income of Rs. 4,57,01,174/- and claimed credit for payment of aggregate taxes to the tune of Rs. 1,55,37,327/- out of which , inter-alia, claim of credit of income-tax deducted at source amount(TDS) was Rs. 89,44,765/- . The AO issued intimation u/s. 143(1) wherein the AO, inter-alia, granted TDS credit of Rs. 79,05,771/- as against claim of TDS credit of Rs. 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- Ref: PAN No: AAACE2632F A.Y 2008-2009 In connection with your intimation u/s. 143(1) dated 24/10/2009 for A.Y 2008-2009 and our submissions made on 17/09/2009, 24/05/2013 and 27/06/2013, we hereby submit TWO Original TDS Certificates (along with Indemnity Bond) details of which are as under; Name of the Party Amount Paid/Credited (In Rs.) Date of Payment/ Credit Total TDS amount (In Rs.) Date on which Tax is paid Challan No. Date of Certificate Elecon Engineering Co. Pvt Ltd 1,94,10,060 31/03/2008 4,39,832 31/03/2010 54034 31/03/2010 Elecon Engineering Co. Pvt Ltd 2,33,03,022 31/03/2008 5,28,046 31/03/2010 54062 31/03/2010 Sub-Total 4,27,13,082 9,67,878 Prayas Engineering Ltd 11,33,134 31/03/2008 25,677 11/10/2010 3509 14/10/2010 Sub-Total 11,33,134 25,677 Total 9,93,555 We would like to bring to your notice that we had filed the Return of Income for A.Y 2008-2009 on 01/10/2008 vide ack. no. 45411550300908. A copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the Revenue but however the AO in its order passed u/s 154 allowed TDS credit to the tune of Rs. 89,44,765/- as was claimed by the assessee in the return of income filed with the Revenue as against TDS credit of Rs. 79,05,771/- granted in the intimation issued by the AO u/s 143(1) . 5. Aggrieved by the denial of the TDS credit to the tune of Rs. 9,93,555/- by the AO in an order of rectification passed u/s 154 by the AO on 01.05.2015 , which claim of TDS credit albeit was not claimed by the assessee in the return of income filed with Revenue due to late deposit of TDS by the deductors and which consequentially led to late issue of TDS certificate to the assessee by the deductors in the month of March 2010 and October 2010 respectively as against the due date of filing of return of income falling due on 30-09-2008 and the return of income having been filed u/s 139(1) on 20-09-2008, the assessee filed first appeal with learned CIT(A) which did not found favour with learned CIT(A) who vide appellate orders dated 11.11.2016, decided the issue against the assessee by dismissing the appeal of the assessee by holding as under:- " 5. I have given my careful consideration to the rival ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id/Credited In Rs. Date of Payment/Credit Total TDS Amount In Rs. Date on which Tax is paid Challan No. Date of Certificate Elecon Engineering Co.Pvt Lid 1,94,10,060 31/03/2008 4,39,832 31/03/2010 54034 31/03/2010 Elecon Engineering Co.Pvt Lid 2,33,03,022 31/03/2008 5,28,046 31/03/2010 54062 31/03/2010 Sub-Total 4,27,13,082 9,67,878 Prayas Engineering Ltd 11,33,134 31/03/2008 25,67? 11/10/2010 3509 14/10/2010 Sub- Total 11,33,134 25.677 Total 9,93,555 A. The Appellant had offered the income from the above mentioned clients for tax in the AY 2008-09 while computing his Net Total Income. It shall be noted that the TDS has not been claimed in the return as the certificate were not provided by the clients nor the Appellant was aware of such deduction as TDS was deducted and paid by the client to the Government very late i.e. 31st March, 2010. Thus it was obvious that Appellant was not able to claim the TDS at the time of filing his return of income which was filed much earlier on 20th September, 2008. B. Order u/s 154 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o relied upon case laws namely:- 1. DCIT Circle 10(1) vs. Desein Pvt Ltd (ITAT - New Delhi)- (ITA nos.3488, 3489/Del/2013 AY 2007-08 and 2008-09 dt.11th May, 2011. 2. Sandersons & Morgans Kolkata, vs. ACIT Circle 54, Kolkata (ITAT Kolkata) - (ITA No.1520/Kol/2009 AY 2004-05 dt 23rd September, 2015. 3. High Court of Delhi on Its Own Motion vs. Union of India [2013] 31 taxmann.com 31 4. ITO vs. Anupallavi Finance & Investments [2011] 131 ITD 205 (Chennai Trib.) 5. Pardeep Kumar Dhir v. ACIT[2007] 109 TTJ 445 (Chandigarh Trib.) 6. Smt. Varsha G. Salunke v. DCIT[2006] 98 ITD 147 (Mumbai Trib,) 7. Yashpal Sawhney v. ACIT[2007]293ITR 539 (Bom) 6.5 Section 155 (14) reads as under:- Where in the assessment for any previous year or in any intimation or deemed intimation under sub-section (1) of section 143 for any previous year, [credit for tax deducted or collected in accordance with the provisions of section 199 or as the case may be, section 206C] has not been given on the ground that the certificate furnished under section 203 [or section 206C] was not filed with the return and subsequently such certificate is produced before the Assessing Officer within two years from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were also received late by the assessee. It was submitted that the assessee was not aware of such deduction of income-tax at source by the deductors at the time of filing of return of income u/s 139(1) on 20-09-2008. It was submitted that corresponding income to this deduction of income-tax at source has already suffered taxation in the return of income filed with the revenue. It was submitted that consequently TDS certificate were issued by deductors late in March 2010 and October 2010 respectively and hence received late by the assessee. It was submitted that the assessee is not at fault. He drew our attention to the paper book page no. 16-23 and submitted that income-tax deducted at source was deposited to Credit of Central Government by Elecon Engineering Co. P. Ltd. on 31.03.2010 and TDS certificate was issued on 31.03.2010 . Similarly with respect to Prayas Engineering Ltd. it was submitted that the said concern deposited income-tax deducted at source on behalf of the assessee on 11.10.2010 and TDS certificate was issued in favour of the assessee only on 14.10.2010. The aforesaid TDS certificates are placed in paper book filed with tribunal. Thus it was contended by learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness of clearing and forwarding agent. The assessee has filed return of income with Revenue u/s 139(1) on 20-09-2008 declaring income of Rs. 4,57,01,174/- on which taxes of Rs. 1,55,37,327/- were claimed to have been paid , out of which TDS amount was Rs. 89,44,765/- . The AO in an intimation u/s. 143(1) of the Act allowed credit of TDS of Rs. 79,05,771/- as against TDS claim of Rs. 89,44,765/- filed by the assessee. The assessee on 24-05-2013 filed petition u/s. 154 of the Act seeking rectification of the intimation u/s 143(1) wherein it claimed credit of TDS to the tune of Rs. 89,44,765/- as claimed in the return of income filed with Revenue u/s 139(1) as against credit of Rs. 79,05,771/- allowed by the AO in the intimation u/s 143(1). While the aforesaid proceedings were going on before the AO u/s 154 , the assessee also filed an additional claim of credit of TDS amount of Rs. 9,93,555/- for the first time before the AO in proceedings being conducted by AO u/s 154 which was not earlier claimed by the assessee in the return of income filed u/s 139(1) with the Revenue. The assessee had submitted that it has duly declared and offered for taxation income corresponding to these pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e return of income filed with Revenue filed u/s 139(1). The ITAT- Ahmedabad while holding in favour of the taxpayer has also dealt with the provisions of Section 155(14) of the 1961 Act on which heavy reliance is placed by learned CIT(A). We do not find any reasons for taking a different view than taken in these two judgments of the co-ordinate benches of the tribunal with which we concurr. The assessee has raised this claim in the proceedings which were conducted by the AO u/s 154 otherwise than by filing revised return of income u/s 139(5) . If the AO could not have taken cognisance of the fresh claim filed by the assessee which was not filed by filing revised return of income u/s 139(5) , the learned CIT(A) being appellate authority could have always admitted the said fresh claim and thereafter adjudicated the same on merits. Hon'ble Bombay High Court decision in the case of CIT v. Pruthvi Brokers & Shareholders reported in (2012) 349 ITR 336(Bom) is relevant and binding being jurisdictional High Court. Thus, the assessee could not be denied the said claim of credit of TDS to the tune of Rs. 9,93,555/- but however for limited purposes for verification of contentions raised by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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