9911796707
TMI Blog2003 (12) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... he same is to be treated as a payment of tax on behalf of the person from whose income the deduction is made and credit is to be given to him for the amount so deducted, the refund can only be claimed by the person from whose income-tax is so deducted or paid. 3. The above question is set out in the background of stand taken by the CIT(A) who, having held that the assessee was not required to deduct tax at source on account of estimated local living expenses/out of pocket expenses, further observed as follows: "Another aspect of this appeal is the contention raised by the authorised representative that the appellant-company is entitled to the refund of tax which was wrongly directed by the Assessing Officer to be deducted from the said expenses.... However, I find that this plea cannot be upheld. Any deduction made by the appellant in terms of section 195 and paid to the Central Government is treated as a payment of tax on behalf of the non-resident and the credit shall be given to the nonresident for the amount so deducted for the assessment made under this Act. This is clearly provided in section 199. It is also provided that in section 198 that the tax deducted under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the certificate furnished under section 203 in the assessment made under this Act for the assessment year for which such income is assessable. (Proviso not relevant for our purposes) (2) Any sum referred to in sub-section (1A) of section 192 and paid to the Central Government shall be treated as the tax paid on behalf of the person in respect of whose income, such payment of tax has been made and credit shall be given to him for the amount so paid on production of the certificate furnished under section 203 in the assessment under this Act for the assessment year for which such income is assessable." "203. Certificate for tax deducted.- Every person deducting tax in accordance with the provisions of sections 192 to 194, section 194A, section 194B, section 194BB, section 194C, section 194D, section 194E, section 194EE, section 194F, section 194G, section 194H, section 194-1, section 194J and section 194K, section 194L, section 195, section 196A, section 196B, section 196C and section 196D shall, within such period as may be prescribed from the time of credit or payment of the sum, or, as the case may be, from the time of issue of a cheque or warrant for payment of any dividend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hy that this obligation to issue certificate is cast only on the persons deducting tax at source under the scheme of, inter alia, section 195. In other words, 'liability' to deduct tax at source under section 195, in the case before us, is the foundation of assessee's obligation to issue the certificate under section 203, but, on the facts of this case, it is not even necessary to go into that question because it is an undisputed position that TDS certificate has not been issued in respect of the amount in appeal before us, and nobody is aggrieved of the same. Now, section 248 provides that any person having in accordance with the provisions of sections 195 and 200 deducted and paid tax in respect of any sum chargeable under this Act, other than interest, who denies his liability to make such deduction, may appeal to the CIT(A) to be declared "not liable to make such deduction". This follows that once the appellant succeeds in the appeal, the Revenue authorities have to proceed on the basis that the appellant did not have any liability to make the impugned deduction of tax at source. As a corollary to this position, a successful appellant cannot be said to be even under an obligati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses the appeal? In either case, the person, making payment, does not get refund and in either case the question of taxability is to be finally adjudicated in the hands of the person receiving the payment. In case, this interpretation is to be upheld, an appeal under section 248 will be reduced to an empty formality and a meaningless ritual. 8. It is fairly well settled principle of interpretation that normally no word or expression used in any statute can be said to be redundant or superfluous. As observed by Hon'ble Supreme Court in the case of CIT v. Distributors (Baroda) (P.) Ltd. [1972] 83 ITR 377 (SC)"... no part of the provisions of the statute can be just ignored by saying that Legislature enacted it not knowing what it is doing". It is one of the basic principles of the interpretation of statutes that a legal provision should not be interpreted in such a manner so as to make the provision infructuous or redundant. Hon'ble Calcutta High Court, in the case of CIT v. Jayashree Charity Trust [1986] 159 ITR 280 (Cal.), has observed that, "To resolve... (the) controversy, regard must be had to the language that has been employed and also to the object of the statute. It is well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eans, as are essentially necessary to its execution, cui jurisdictio date est, ea quoque concessa esse videntur, sine quibus jurisdictio explicari non potuit". Hon'ble Madras High Court has, in the case of Paulson Litho Works v. ITO [1994] 208 ITR 676 (Mad.), has held that the above principles also apply in the context of the powers of the first appellate authority, i.e., the CIT(A). Their Lordships have observed thus: "The Supreme Court has categorically held in ITO v. M.K. Mohammed Kunhi [1969] 71 ITR 815 (SC), that the right of appeal is a substantive right and questions of fact and law are at large and are open to be reviewed and decided untrammelled by any restrictions or inhibitions... ... There can be no serious dispute or controversy over the position that the powers of the appellate authority exercising powers under section 251 of the Act are as wide in their content and amplitude and are not in any manner less vigorous or of restricted amplitude and extent, when compared to that of the Appellate Tribunal under section 254 of the Act . . . " In the light of the school of thought emerging from the above legal precedents, the CIT(A) indeed erred in not only raising leg ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
