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TMI Blog2020 (7) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequently, in response to assessee's misc application, the order was recalled vide order dated 23/04/2019 and the relevant findings read as under: "6. We have heard the rival contentions and perused the material available on record. It is a matter of record that the assessee has filed a copy of agreement dated 20.07.2011 which is available on record and therein, both the parties had agreed that the responsibility to file tax return in respect of transactions relating to the liquor shop shall be on the assessee, and TCS shall be claimed by the assessee and not by Shri Bhairu Singh. Further, we find that the ld. CIT(A) has returned a finding that the TCS actually been deducted of Rs. 2,28,714/- in the name of Shri Bheru Singh Tax ( PAN No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CIT(A) that there is no mistake apparent from the record in the intimation issued u/s 143(1) as the credit of TCS has not been allowed to the assessee as he was neither a deductee nor the condition laid down under rule 37BA(2) are fulfilled. Accordingly, he upheld the order passed by the AO rejecting the application of assessee u/s 154 of the Act. Against the said findings, the assessee is in appeal before us. 5. During the course of hearing, the ld AR submitted that the assessee had entered into an agreement dated 20.07.2011 with Bhairu Singh wherein he has declared that the filing of tax return is the responsibility of the assessee and he has also agreed that he will not claim any TCS in his personal tax return. It was submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon by the assessee in its written submission, those decisions are distinguishable on facts as in those cases, necessary declarations have been filed by the main licensee that they have not claimed the TCS from the department and it was accordingly submitted that the said decisions cannot be applied in the case of the assessee as no details have been furnished regarding the main licensee as to whether he has claimed any credit for the TCS in the return of income or not and further the specific requirements of Rule 37BA(2) of the Act have not been fulfilled. The ld DR accordingly supported the order of the lower authorities. 7. We have heard the rival contentions and perused the material available on record. Firstly, in the proceedings u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for corresponding TCS subject to the fact that the same has not been claimed by Shri Bheru Singh Tak. Similar findings have been recorded by the Coordinate Bench in case of M/s Jay AMBEY Wines (supra) which read as under:- "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 of the Act, the nature of tax collection at source (TCS) is exactly ide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2011 with Shri Bhairu Singh (PAN AOBPT6127) wherein the latter has declared that the filing of tax return is the responsibility of the assessee and he has also agreed that he will not claim any TCS in his personal tax return. It was submitted by the ld AR that the assessee has no access to Shri Bhairu Singh's personal tax return but it is a fact that he has not claimed any credit of TCS in his tax return and which can be verified by the Tax Department as PAN NO. AOBPT6127 of Shri Bhairu Singh is on record and available with the Assessing officer. The matter is accordingly set-aside to the file of the Assessing officer to verify whether TCS has been claimed by Shri Bheru Singh Tak and whether on verification, it is found that TCS has not be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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