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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 ..... y to the communication issued by the CPC(TDS) on 10.09.2014, which has clarified with an example that in case tax has been deposited more than the required tax deducted at source for a particular assessment year, 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. As 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 [2013 (3) TMI 316 - DELHI HIGH COURT] as 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TDS and claimed that there being excess deposit of TDS of ₹ 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 ₹ 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 Officer to consider the case of the assessee on merit in respect of all the relevant eleven financial years and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 1800256 0 0 1800256 (-)1800256 1998-99 0 11114234 0 1271882 11114234 (-)9842352 Net result (excluding interest u/2 201(1)/201(1A) etc for failure to deduct tax and for failure to deposit tax even on deduction) (+)29639555 which may be treated as refundable TDS amount without adjusting applicable interest. 3. On the basis of the above re-casted statement, the Assessing Officer found that there was a short-fall in deposits of TDS by the assessee for assessment years 1992-93, 1996-97, 1997-98 and 1998-99. He accordingly worked out the interest payable by the assessee under section 201(1A) for the said four years on the short-fall of TDS payment aggregating to ₹ 7,21,85,256/- and after adjusting the overall excess payment of TDS amounting to ₹ 2,96,39,555/-, he worked out the amount payable by the assessee for financial years 1992-93, 1997-98 and 1998-99 at ₹ 1,16,03,337/-, ₹ 48,60,132/- and ₹ 2,60,82,2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awful judicial exercise. 5. That, the Ld. C.I.T.(A) further erred in having assumed that the appellant did not have any dispute with the working of quantum of surplus/deficit of TDS worked out by the A.O. as per Table-A admittedly made with incomplete/partial details, in spite of the fact that by challenging such wrongful working the appellant vide written submission dated 03.08.2017 gave a comparative chart drawn from records showing excess deposit of TDS by ₹ 3,20,73,023/-. 6. That, the Ld. C.I.T.(A) went wrong in having alleged that the appellant has not pressed for ₹ 24,33,470/- pertaining to FY 1995-96 when objection against such alleged shortfall was raised before him vide paras 1 3 of the written submission dated 20.03.2008 and hence the order passed confirming the order of the A.O. on incorrect assumption of facts is liable to be quashed. 7. That, the Ld. C.I.T.(A) further erred in having held that the demand created vide appeal effect order dated 16.01.2017 was not time barred as in terms of sec.201(3) of the Act, bar to limitation pertains to sec.201(1) and not applicable to sec.201(1A) of the Act in spite of the fact that if TDS demand u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30 - 24550529 1991-92 76677732 54215278 22462454 - 47012983 1992-93 56962318 77396437 - (20434119) 26578864 1993-94 26570942 20267736 6303206 - 32882070 1994-95 13454150 10044956 3409194 - 36291264 1995-96 24579843 8692223 15887620 - 52178884 1996-97 - 8463253 - (8463253) 43715631 1997-98 - 1800256 - (1800256) 41915375 1998-99 1271882 11114234 - (9842352) 32073023 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee in some years, there was also a short-fall in the payment of TDS in the years under consideration. He contended that the assessee, therefore, was liable to pay interest under section 201(1A) of the Act for such short-fall in respect of the said years and it was a fit case to charge such interest taking into consideration the year-wise position as rightly held by the authorities below. 9. We have considered the rival submissions and also perused the relevant material available on record. It is observed that pending the finalization of bills of the contractors and sub-contractors, which were involved in carrying out the various jobs in the modernization work of the assessee s Steel Plant, adhoc payments of TDS were made by the assessee on estimated basis. After finalization of the bills of the contractors and sub-contractors, the exact amount of TDS required to be deducted was ascertained in respect of each of the relevant years and TDS certificates of such amounts were issued by the assessee to the concerned contractors and sub-contractors. After ascertaining the exact amounts of TDS, it came to light that the amounts deposited by the assessee were in excess for some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon ble Delhi High Court in the case of Motion (supra), we hold that the assessee is entitled for adjustment of the excess deposit of TDS made in the earlier year against the TDS payable for the subsequent year/(s). We accordingly set aside the impugned order of the ld. CIT(Appeals) on this issue and direct the Assessing Officer to recompute the amount payable/ refundable to the assessee on account of TDS for the years under consideration after making such adjustment. 12. During the course of appellate proceedings before the Tribunal, the assessee has raised an additional ground claiming interest under section 244A of the Act on the refund, if any, due to the assessee for excess deposit of TDS. Since this issue raised by the assessee is purely a legal issue and all the facts relevant to decide the said issue are available on record, the additional ground raised by the assessee is admitted by us keeping in view the decision of the Hon ble Supreme Court in the case of National Thermal Power Corporation Limited [229 ITR 383]. Since this issue is raised by the assessee for the first time before the Tribunal and the Assessing Officer is required to be given an opportunity to exami ..... 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