Loading judgment…
Facts
The assessee filed a return of income, which was enhanced. The assessee's appeal to CIT(A) was decided in its favor, but the revenue's appeal to ITAT led to deletions and restorations. Subsequently, the assessee opted for the VSVS Scheme, paid taxes, and a refund was issued. Later, the AO passed a rectification order under Section 154, giving lesser TDS-TCS credit than reflected in Form 26AS.
Held
The Tribunal held that the case was covered by a co-ordinate bench decision in the appellant's own case. It directed the AO to consider the case for the current AY and verify factual aspects regarding TDS-TCS credit, making the refund accordingly.
Key Issues
Whether the assessee is entitled to a refund of excess TDS/TCS credit due to an error in the rectification order passed under Section 154, and if the case is covered by a previous co-ordinate bench decision.
Sections Cited
239, 219, 237, 240, 143(1)(c), 139, 154, 254, 143(3), 250, 244A
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, DELHI BENCH: ‘E’: NEW DELHI
Before: SHRI S RIFAUR RAHMAN & SHRI ANUBHAV SHARMA
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: ‘E’: NEW DELHI) BEFORE SHRI S RIFAUR RAHMAN, ACCOUNTANT MEMBER AND SHRI ANUBHAV SHARMA, JUDICIAL MEMBER ITA No:-5312/Del/2024 Assessment Year: 2012-13 NKB Infrastructure Pvt. Income Tax Officer, Ltd., Behind PNB Building, Vs. Ward-2, S.O, Qutabpur Mola (131), Haryana. Rewari, Haryana, India. PAN No:AADCN5591K APPELLANT RESPONDENT Assessee by : Sh. Yash Gilhotra, Adv. Revenue by : Sh. Dheeraj Kumar Jain, Sr. DR Date of Hearing :15.07.2025 Date of Pronouncement :31.07.2025 ORDER PER ANUBHAV SHARMA, JM:
This appeal has been preferred by the Assessee against the order dated 15.10.2024 of National Faceless Appeal Centre, Delhi, [hereinafter referred to as ‘NFAC / CIT(A)’] in Appeal No. NFAC/2011-12/10385870pertaining to Assessment Year 2012-13.
1.1 The assessee has raised the following grounds: “
1. That the Ld. CIT(A) has erred in upholding the action of Ld. AO in rejecting the claim of refund citing limitation under section 239 of the Act and in complete departure from the section 219, 237 and 240 of the Act.
2. That in the facts and in the law, departure of Income Tax Department from correct computation of refund required under section 143(1)(c) of the Act cannot vitiate the claim of the Appellant with respect to excess of prepaid taxes over and above the tax payable on the income assessed at the time of filing of return under section 139 of the Act.
3. That under the facts and circumstances of the case, the Ld. CIT (Appeals) had erred in upholding the order of the Ld. AO stating that application under section 154 being against the Assessment Order is time barred, since the Appellant made the application under section 154 against the Appeal Effect Order under section 254.
4. That the impugned Order was passed without considering the facts and circumstances of the case, as the excess of tax paid over and above the tax payable, which is refundable, was evident from Form 26AS of the Appellant.
5. Because the Appellant is squarely covered by the decision of the Hon'ble co-ordinate Bench in the Appellant's own case in Mewat Grit Udyog (Since Dissolved) Through Infrastructure Pvt Ltd, Rewari, Haryana. Successor Vs. Income Tax Officer, Ward-2, Rewari, Haryana (ITA No. 372/DEL/2024) decided on 06.06.2024.
6. That the Appellant craves for your honor to take additional ground or grounds of appeal and/or modify or resign any ground(s) of appeal before or at any time of hearing.
2. Heard and perused the records. The appellant has filed its return of income in ITR-6 declaring total income of Rs. 4,42,80,698/- which was enhanced to Rs. 7,31,62,329/- during assessment u/s 143(3) while making additions of Rs.
2,88,81,631/-. The appellant filed an appeal before the Ld. CIT(A) which was decided in its favour. The revenue had preferred an appeal before the ITAT jurisdictional Bench against the order of Ld. CIT(A). Afterwards the Jurisdictional Bench vide its order dated 11.07.2019 deleted the addition of Rs. 2,78,81,630/- and set aside the addition of Rs. 10,00,000/- and restored in to the file of Assessing Officer. In pursuance of directions of the ITAT the proceedings have been completed by assessing total income of Rs. 4,52,36,200/- an addition of Rs. 10,00,000/- was made. Further the appellant had preferred an appeal before the Ld. CIT(A). However, later on the assessee opted for VSVS Scheme and filed its declaration by surrendering the income of Rs. 10,00,000/-. The assessee has paid all the due taxes liable according to the VSV Scheme. Subsequently, Form-5 under DTVSV was issued to the assessee on 28.12.2021. DTVSV Forms 1,2,3,4 and 5 are attached as Annexure-1. Afterwards a refund of Rs. 25,87,670/- for the AY 2012-13 has been issued by the Ld. Jurisdictional AO by giving the appeal effect and Vivad se Vishwas.
The case of assessee is that Ld. AO had wrongly passed a rectification order us 154 on 30th May 2024 while giving the lesser credit of TDS-TCS available with form 26AS and even made the tax calculation errors. On perusal of the order, it can be seen that the TDS-TCS credit of Rs. 53,62,264/- was given instead of Rs. 58,34,411/- which was duly reflecting in Form 26AS. Thus, the appellant had been served with the lesser amount of TDS-TCS credit amounting Rs. 4,72,147/-. Assessee claims that it is entitled to claim a refund of Rs. 4,72,147/ lying as surplus amount in the governments account. The copy of Form 26A5 for the AV 2012-13 is filed on records. The appellant claims that due to in advertent mistake and not familiar with the form 26AS could not claim the amount of excess tax in the returned income.
It is submitted before us that the notice under section 250 of the Act was not issued to the Assessee, only the notice for enablement of communication window was issued on 01.08.2024 on the Income Tax Portal of the Assessee. Against that, on 11.10.2024 the Assessee duly submitted the income tax return for the AY 2012-13 filed on 21.11.2019.
The appellant’s claim is that the case is squarely covered by the decision of the Co-ordinate Bench in the appellants own case for AY 2010-11, in Mewat Grit Udyog (since dissolved) through its successor NKB Infrastructure Pvt Ltd, Rewari, Haryana Vs. Income Tax Officer, Ward-2, Rewari, Haryana (ITA No. 372/DEL/2024) decided on 06.06.2024 wherein the Bench held that: “25. The question here is not claiming any deduction or exemption, simply the refund of the prepaid taxes which have been paid by the Assessee in excess to the Government treasury and ought to be refunded to the Assessee. Hence, we direct the revenue authorities to refund the amount due for the assessee along with the eligible interest as per provisions of Section 2444 of the Income Tax Act, 1961.
In the result, the appeal of the assessee is allowed.”
We find grounds have substance. The appeal is allowed. Impugned orders are set aside and in the light of co-ordinate bench decision in AY 2010-11 (supra) the Ld. AO is directed to consider the case of assessee for this AY too and verifying the factual aspects about TDS-TCS credit amounting Rs. 4,72,147/-, make the refund.