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TMI Blog2021 (3) TMI 1105X X X X Extracts X X X X X X X X Extracts X X X X ..... ion income from M/s Unitech Wireless (East) Pvt. Ltd. The contract income was subjected to TDS and is assessed in the hands of the assessee as a proprietrix of M/s Gupta Electric Works then the TDS on the said income even if deposited in the PAN of the deceased husband of the assessee due to inadvertence or mistake, it would not lead to denial of the claim of credit to the assessee, who has offered the said income to tax. Rule 37BA of Income Tax rules, 1962 also provides the credit of tax deducted at source and paid to the Central Government, if the income on which tax is deducted at source and paid to the Government is offered to tax by the assessee and the deposit is made in the name of other person. Denial of TDS credit to the assessee is not justified. The impugned orders of the Assessing Officer passed u/s 154 as well as Ld. CIT (A) are set aside and the claim of the assessee for TDS credit is allowed. Appeal of the assessee is allowed. - I.T.A. No. 262/ALLD/2018 - - - Dated:- 22-3-2021 - Shri Vijay Pal Rao, Judicial Member For the Appellant : Shri Piyush Kumar Kamal, CA For the Respondent : Shri A.K. Singh, Sr. D.R. ORDER This appeal by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 348/- and refund of ₹ 5,01,190/-. The return of income was processed by the Central Processing Unit (CPC) u/s 143 (1) on 20.03.2013, whereby an adjustment on account of TDS credit was made and raised a demand of ₹ 1,17,880/- . The TDS credit was denied due to the reason that as per the Form No. 26AS the TDS was not in the name of assessee but it was in the name of deceased husband, who die on 11.03.2009. The assessee filed an application u/s 154 of the Act for grant of TDS credit of ₹ 5,89,348/-. The said application was rejected by the Assessing Officer vide order dated 13.01.2014 passed u/s 154 of the Act. The assessee challenged the said order of the Assessing Officer by filing the appeal before the Ld. CIT (A) however, could not succeed. 3. Before the Tribunal, the Ld. AR of the assessee has submitted that the assessee has declared the income on account of commission income received from M/s Unitech Wireless (East) Pvt. Ltd., which was subjected to TDS however, the deductor deposited the TDS in the PAN of the deceased husband of the assessee Late Ram Vishal Gupta. The Ld. AR has pointed out that for the assessment year 2010-11, the return of income was file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee. The Ld. AR has also relied upon the decision of Hon'ble Andhra Pradesh High Court in the case of CIT vs. Bhooratnam Company (AP) 357 ITR 396 and submitted that the Hon'ble High Court after considering the rule 37BA of Income Tax Rules framed u/s 199 (3) of the Income Tax Act has held that once the receipt mentioned in the TDS certificate is assessed as income of the assessee, then the credit has to be granted to the assessee. He has also referred to various other of decisions on this point. Hence, the Ld. AR has submitted that the TDS credit of ₹ 5,89,348/- shall be allowed to the assessee. 4. On the other hand, the Ld. DR has submitted that the assessee filed the return of income as a Proprietor M/s Gupta Electric Works. The said return of income was processed by the CPC u/s 143 (1) and an adjustment was made due to the reason that the TDS was not credited in the name of the assessee but it was in the name of the husband of the assessee. Therefore, the A.O. as well as the Ld. CIT (A) is justified in denying a TDS credit to the assessee, it was the duty of the assessee to pursue the deductor to file the rectified TDS statements under the correct PA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Chapter XVII, shall be given to the person to whom payment has been made or credit has been given (hereinafter referred to as deductee) 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. (2) (i) If the income on which tax has been deducted at source is assessable in the hands of a person other than the deductee, credit for tax deducted at source shall be given to the other person in cases where- (a) the income of the deductee is included in the total income of another person under the provisions of section 60, section 61, section 64, section 93 or section 94; (b) the income of a deductee being an association of persons or a trust is assessable in the hands of members of the association of persons, or in the hands of trustees, as the case may be; (c) the income from an asset held in the name of a deductee, being a partner of a firm or a karta of a Hindu undivided family, is assessable as the income of the firm, or Hindu undivided family, as the case may be; (d) the income from a property, deposit, security, unit or share held in the name of a deductee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the pre-amended Rule 37BA which restricted the benefit of the rule only in four specified situations. It has thus widened the scope of the rule 37 BA thereby enabling the credit of taxes to the actual payee in whose hands the income is assessable and not restricting this benefit only to the specified four situations. 17. In our view, the CIT (Appeals) and the Tribunal have rightly held that the assessee is entitled to the credit of the TDS mentioned in the TDS certificates issued by the contractor, whether the said certificate is issued in the name of the Joint Venture or in the name of a Director of the assessee company. They have considered the terms of the agreement dated 12-03-2003 among the parties to the joint venture and held that credit for TDS certificates cannot be denied to the assessee while assessing the contract receipts mentioned in the said certificates as income of the assessee. The income shown in the TDS certificates has either to be taxed in the hands of the joint venture or in the hands of the individual co-joint venturer. As the joint venture has not filed return of income and claimed credit for TDS certificates and the TDS certificates have not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee before the Commissioner of Income-tax (Appeals) if such full credit is not given to the assessee, who is holding the certificate, an anomalous situation would arise as under : (a)neither the assessee holding the certificate under section 203 got the credit for the entire tax deducted; (b)nor are the other co-owners not possessing the certificate in their favour entitled to the credit in the absence of such a certificate. It is not fair on the part of the department also to say that it would not give credit to anybody in respect of the tax deducted at source in respect of the remaining co-owners, even after taking the entire TDS into its treasury, so long as the assessee is holding a certificate for the entire tax deducted at source in his name. So long as the assessee is having a certificate in his name for the amount higher than the tax due to be paid by him, the excess tax is to be refunded to the assessee. If credit was not given for the entire amount mentioned in the certificate, it would definitely amount to denial of the refund due to the assessee. In this view of the matter, I do not find infirmity in the order of the first appellate authority an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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