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TMI Blog2011 (8) TMI 1364X X X X Extracts X X X X X X X X Extracts X X X X ..... credit for the balance TDS of Rs. 14,80,503 had not been given that the fact of TDS of Rs. 31,47,637 was borne out from the TDS certificates as well as the audited P L a/c, which had been filed along with the return of income (copies thereof have been filed before us also, at pp. 7 to 13 and 14 to 18 of the assessee's paper book); and that while filing the return, due to inadvertence, the amount of TDS got wrongly shown at Rs. 16,67,164 being the excess amount of TDS shown under the head of loans and advances, as against the correct amount of TDS of Rs. 31,47,637 shown under the head of loans and advances. 3. The AO, however, vide order dt. 29th July, 2010, rejected the assessee's application, observing that as per the return filed, the assessee had claimed TDS of Rs. 16,67,367 and refund of Rs. 1,87,134 that refund of Rs. 1,87,134 along with interest had been issued on 22nd Feb., 2006; and that therefore, there was no mistake apparent from record. 4. By virtue of the impugned order, the CIT(A) directed the AO to allow TDS credit of Rs. 31,47,636 and grant consequential refund to the assessee. 5. Aggrieved, the Department is in appeal. 6. The learned Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce amount of Rs. 14,80,503 remained not given by the AO to the assessee. 9. While rejecting the assessee's application for rectification of this mistake, the AO observed that since the entire TDS claimed of Rs. 16,67,134 had been allowed to the assessee and refund of Rs. 1,87,134 along with interest had been issued while processing the return, there was no mistake apparent from record. However, while rejecting the assessee's application, the AO failed to take into account the fact that along with the return, the assessee company had filed TDS certificates of Rs. 31,47,636, as well as its audited P L a/c. The AO wrongly observed that there was no mistake apparent from record. By no stretch of imagination can it be said that the documents filed along with the return of income do not constitute part of the record before the AO. Now, in the present case, the assessee company made an incorrect (though inadvertent) claim of TDS and the factum of such claim being incorrect was apparent from the TDS certificates and the audited P L a/c filed along with the return. That being so. the AO while processing the return, ought to have allowed the TDS of Rs. 31,47,636, as due to the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turns, the evidence and the order are part of the record. The expression record has thus to be construed as meaning much more than merely the return of income. Undeniably, it includes the annexures filed along with the return of income, which are available to the AO at the time of passing of the intimation. In Container Corporation of India Ltd. vs. Dy. CIT (2005) 94 TTJ (Del) 502 : (2005) 92 ITD 333 (Del), it was held that if on the basis of the material on record the assessee is entitled to relief it would constitute a mistake apparent from the record. In T.S. Bolaram, ITO vs. Volkart Brothers Ors. (1971) 82 ITR 50 (SC) it was held that a mistake apparent on record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning as to points on which there may be conceivably two opinions. In the assessee's case, the TDS certificates were on record before the AO. They showed the assessee to be entitled to TDS credit of Rs. 31,47,636. There was therefore, an obvious and patent mistake in the intimation, which was rectiflable under s. 154 of the Act. 13. Further, s. 199(1) (relevant portion, as applicable) of the Act re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of non-grant of TDS credit in an intimation, for non-filing of TDS certificate along with the return, the AO is duty-bound to amend the intimation, allowing credit of TDS to the assessee, where the assessee files the TDS certificate within two years from the end of the assessment year in which the related income is assessable. The only condition for this, however, as per the proviso to s. 155(14) is that the income from which the tax has been deducted needs must have been disclosed in the return filed for the relevant year. 19. The reason as to why the AO is so duty-bound to amend the intimation is that where the TDS is shown to have been actually deducted, through the TDS certificates filed even subsequent to the filing of the return, the credit of TDS must not be denied to the assessee. The operative word used in s. 155(14) is shall , underlining the duty cast on the AO in this regard. 20. So, if even in a case where the TDS certificate has not been filed along with the return but subsequently, the legislature has provided for grant of credit of the amount deducted, the case of the present assessee is on a better footing it having filed the TDS certificates along with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by such authority; and (ii) the information in the return of income in respect of the claim for the credit. subject to verification in accordance with the risk management strategy formulated by the Board from time to time. 28. From the above Rules, it is clearly evident that credit for tax deducted at source and paid to the Central Government shall be given on the basis of information relating to deduction of tax furnished by the deductor to the IT authorities and the information in the return of income in respect of the claim for the credit for the assessment year for which such income is assessable. 29. The order under s. 154 of the IT Act was passed by the AO on 29th July, 2010. The Rules, as staled above, were inserted w.e.f. 1st April, 2009. The AO was, therefore, bound by these Rules. By not granting the credit of TDS to the assessee, rr. 37BA(1), (3)(i) and (4) were flouted. The learned CIT(A) correctly rectified this position also. 39. The Department has not been able to show as to why, in this scenario the assessee was required to file any revised return of income. There was no excess TDS to be claimed. It was due to sheer unintended inadvertence that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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