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TMI Blog2023 (6) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 598/DEL/2022 - - - Dated:- 23-6-2023 - Shri N.K. Billaiya, Accountant Member, And Shri Challa Nagendra Prasad, Judicial Member For the Assessee : Shri Rishab Malhotra, AR, Shri Ravi Sharma, Adv For the Department : Shri Sanjay Kumar, Sr. DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER:- This appeal by the assessee is directed against the order of the CIT(A), Delhi-42 dated 08.02.2022 pertaining to A.Y 2019-20. 2. In the appeal memo, the assessee has taken as many as 7 grounds of appeal having only one issue, which is non granting of TDS credit of Rs. 16,58,287/-. 3. Vide letter dated 14.02.2023, the assessee has raised the following additional ground of appeal: 8. That on the facts and circumstances of the case and in law, the receipts from sale of software are not taxable in India in view of the decision of the Hon'ble Supreme Court in Engineering Analysis Centre of Excellence Pvt Ltd Vs. CIT 432 ITR 471 [SC]. 8.1 That on the facts and circumstances of the case and in law, the ld. CIT(A)/Assessing Officer ought to have allowed the refund of tax deducted/paid on receipts from sale of software. 4. The underlying facts in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has every right to get credit of TDS. 12. The co-ordinate bench [supra] in group case had the occasion to consider an identical grievance and held as under: 6. While placing reliance on section 199 of the Act and also rule 37 BA of the Income Tax Rules 1962 ( the Rules ), Ld. AR submitted that a harmonised reading of the Act and the Rules permit the grant of TDS in the year in which the income/receipt on which the tax was deducted at source was offered/assessable to tax, and therefore, prayed this Tribunal to grant the proportionate credit of TDS reflected in form 26AS for the assessment year 2018-19, for the assessment year 2017- 18. 7. We have gone through the record in the light of the submissions made on either side. Insofar as the facts are concerned, absolutely there is no dispute. Even according to the Ld. CIT(A), the issue has come up in the assessment year 2017-18 only due to the wrong reporting by the deductor. 8. Section 199 (3) of the Act says that the Board may, for the purpose of giving the credit in respect of tax deducted or tax paid in terms of the provisions of the chapter, make such Rules as may be necessary, including the 4 Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lates to the taxability of receipts from sale of software, now claimed as not taxable in view of the decision of the Hon'ble Supreme Court in the case of Engineering Analysis Centre of Excellence Pvt Ltd 432 ITR 471. 15. In so far as the underlying facts are concerned, they are not at all in dispute in as much the assessee is following the accrual system of accounting and recognizes its income from sale of software when invoices are raised. This fact has also been considered and accepted in the ground of appeal discussed hereinabove. 16. The Hon'ble Supreme Court in the case of Engineering Analysis Centre of Excellence Pvt Ltd [supra], has settled the quarrel in favour of the assessee and against the revenue, which prompted the assessee to raise the impugned additional ground before us as the said decision of the Hon'ble Supreme Court was not there during the assessment proceedings nor before the first appellate authority. 17. The ld. DR raised strong objections and supported his contention by the decision of the Hon'ble Supreme Court in the case of M/s Gurjagravures Private Limited [1978] AIR 40 169 wherein the Hon'ble Supreme Court has held as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax Officer from the point of view of taxability . What 'consideration' by the Income-tax officer means in this context was also explained consideration' does not mean incidental or collateral examination of any matter, by the Income-tax officer in the process of assessment. There must be something in the assessment order to show that the Income-tax officer applied his mind to the particular subject matter or the particular source of income with a view- to its taxability or to its non-taxability and not to any incidental connection . If, as held in this case, an item of income noticed by the Income-tax officer but not examined by him from the point of view of its taxability or non taxability cannot be said to have been considered by him, it is not possible to bold that the Income-tax officer examining a portion of the Profits from the point of view of its taxability only, should be deemed to have also considered the question of its non- taxability. As we have pointed out earlier, the, statement of case drawn up by the Tribunal does not mention that there was any material on record to sustain the claim for exemption which was made for the first time be fore the Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court pronouncing the correct legal position, a mistake has occurred in any of the completed assessments in his case, the application shall be acted upon, provided the same has been filed within time and is otherwise in order. Where any such applications have already been rejected and the assessee files fresh applications within the statutory time limit, the same may also be treated on par with the applications which may either be pending or received after the issue of this circular. 2. The Board desire that any appeals or references pending on the point at issue may please be withdrawn. Circular : No. 68 [F.No. 245/17/71-A PAC], dated 17-11-1971. JUDICIAL ANALYSIS EXPLAINED IN - In ITO v. Smt. Manini Niranjanbhai [1992] 41 ITD 324 (Ahd.- Trib.) (SMC) it was observed that as per Circular No. 68, dated 17-11-1971, it is now a well established position that the Supreme Court does not declare the law with effect from the date of its order and the law declared by the Supreme Court has effect not only from the date of the decision but from the inception of the statutory provision. It has been mentioned therein that the Board have been advised that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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