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TMI Blog2019 (1) TMI 1391X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. On finalisation of the bills received from the contractors, the assessee-company determined the actual liability of TDS and claimed that there being excess deposit of TDS of Rs. 3.2 crores for the relevant eleven financial years taken together, a refund to that extent was due to it. The details prepared and furnished by the assessee in this regard revealed that there was excess deposit of TDS by the assessee for the financial years 1990-91, 1991-92, 1993-94, 1994-95, 1995-96, 1996-97 while there was short deposit of TDS for the financial years 1989-90, 1992-93, 1997 98 and 1998-99. Keeping in view these details, the Assessing Officer originally passed the order under section 201(1)/201(1A) for only five financial years, i.e. 1988-89, 1989-90, 1992-93, 1997-98 and 1998-99, wherein there was a short-fall in payment of TDS and after charging interest under section 201(1A) for such short-fall, a total demand of Rs. 14.10 crores was raised by him against the assessee. On appeal by the assessee, the said order passed by the Assessing Officer under section 201(1)/201(1A) was set aside by the ld. CIT(Appeals), Durgapur vide an order dated 12.03.2014 with a direction to the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 220(2) of the Act for financial years 1992-93, 1997-98 and 1998-99 at Rs. 62,65,801/-, Rs. 26,44,471/- and Rs. 1,40,84,405/- respectively and raised a total demand of Rs. 6,55,20,378/- against the assessee vide an order dated 16.01.2017 passed under section 250/201(1)/201(1A) of the Act. 4. Against the order passed by the Assessing Officer under section 250/201(1)/201(1A) of the Act, an appeal was preferred by the assessee before the ld. CIT(Appeals) and since the submissions made on behalf of the assessee disputing the levy of interest under section 201(1A) and 220(2) were not found acceptable by him, the ld. CIT(Appeals) upheld the order passed by the Assessing Officer under section 250/201(1)/201(1A) of the Act. Aggrieved by the order of the ld. CIT(Appeals), the assessee has filed these appeals before the Tribunal on the following common grounds:- "(1) That, the Ld. C.I.T.(A) wrongly assumed the facts narrated by the A.O. in his appeal effect order dated 16-012017 as correct facts without considering the full and complete facts of the case in upholding the order of the A.O. raising an uncalled for and erroneous demand of Rs. 6,55,20,378/- u/ss 201(1), 201(1A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1(1A) is automatically time barred. 8. That, the Ld. C.I.T.(A) misinterpreted the direction of earlier C.I.T.(A)'s order dated 12.03.2014 in holding that the A.O. has appropriately passed appeal effect order on de novo basis in spite of the fact that Ld. C.IT.(A) on the basis of details submitted before him held the claim of refund of excess deposit of TDS over actual liability justified and allowed all the appeals with a direction to verify those details and hence the impugned order confirming erroneous demand being bad in law is liable to be quashed". 5. The ld. Counsel for the assessee submitted that the assessee in the present case is a Government of India Undertaking, which undertook modernisation work involving a total cost of about Rs. 5,000 crores. He submitted that during the period of modernisation from financial years 1988-89 to 1998-99, various types of jobs were carried out by several contractors and sub-contractors. He submitted that the amount payable towards such jobs during the running of the project was being ascertained on estimated basis in the absence of receipt of proper bills from the concerned contractors and sub-contractors. He submitted that the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther contended that even the TDS certificates were issued by the assessee on the basis of bills raised by the concerned contractors and sub-contractors and not on the basis of adhoc payment of TDS made on estimated basis. He contended that since the concerned parties have availed the credit for TDS on the basis of TDS certificates issued by the assessee, there is no case of claim any extra credit for TDS by the concerned parties than the deposits made by the assessee. He contended that this vital position was appreciated by the ld. CIT(Appeals) while passing the appellate order in the first round and accordingly specific findings in favour of the assessee were recorded by him which the Assessing Officer failed to understand and follow. 8. The ld. D.R., on the other hand, strongly relied on the orders of the authorities below in support of the revenue's case on the issue under consideration. He submitted that the unit of assessment is the assessment year and therefore, the year-wise position as regards the compliance of TDS provision by the assessee is required to be considered. He contended that even though there was a surplus deposit of TDS by the assessee in some years, there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the excess amount of tax can be claimed in the following quarters of the relevant year and the balance amount, if any, can be carried forward to the next year for claim in the TDS statement. 10. It is also observed that section 245 of the Act duly authorises the concerned Income Tax Authority to set off the amount of refund or any part of that amount due to any person under any of the provisions of the Act against the sum, if any, remaining payable by the Act by the person to whom the refund is due. It is thus clear that the refund due to any person under the provisions of the Act for one year can be adjusted against the tax liability for the other year and the concerned authorities are duly authorized to make such adjustment. In the case of Motion -vs.- CIT [214 Taxman 335 (Del.). Hon'ble Delhi High Court has taken note of this procedure prescribed under section 245 of the Act and directed the Assessing Officer to adjust the past arrears due to the assessee against the tax liability of the subsequent years. 11. Keeping in view the communication dated 10.09.2014 issued by the CPC (TDS), the provisions of section 245 and the decision of the Hon'ble Delhi High Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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