SHOBHA RAMKISAN DARGAD,SOLAPUR vs. INCOME TAX OFFICER, WARD-1(1), SOLAPUR, SOLAPUR
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Income Tax Appellate Tribunal, PUNE BENCH, ‘B’ PUNE
Before: SHRI R.S. SYAL & SHRI PARTHA SARATHI CHAUDHURY
आदेश / ORDER
PER R.S. SYAL, VP :
This appeal by the assessee is directed against the order
dt. 09-03-2023 passed by the CIT(A) in National Faceless Appeal
Centre u/s.250 of the Income-tax Act, 1961 (hereinafter also called
‘the Act’) in relation to the assessment year 2003-04.
The only issue raised in this appeal is against not allowing the
credit of TDS on rent. Succinctly, the facts of the case are that the
assessee filed her return u/s.139(4) on 31-03-2004 declaring total
income at Rs.1,23,344/-. Such income included net income of
Rs.76,079/- from Larsen & Toubro Ltd. (L&T) under the head
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‘Income from house property’, which was after the claim of
standard deduction @ 30%. L&T deducted tax at source of
Rs.20,268/- from the rent paid to the assessee to the tune of
Rs.1,29,000/-. In the absence of any TDS certificate made available
by the deductor before the filing of return, the benefit of TDS was
not claimed. On receiving such certificates, the assessee revised the
return u/s.139(5) on 02-02-2005 showing ‘Income from house
property’ enhanced at Rs.1,29,000/- with TDS of Rs.20,268/-. Side
by side, an application u/s.155(14) was also filed on 31-01-2005
enclosing therewith original 12 TDS certificates issued by the L&T
towards rent paid by them to the assessee. The revised return was
not processed. The rectification application was also not disposed
of for more than 14 years. It was on 28-05-2019 that the order of
rectification was passed rejecting the assessee’s claim for the benefit
of TDS. The ld. CIT(A) upheld the action of the AO. Aggrieved
thereby, the assessee has come up in appeal before the Tribunal.
We have heard the ld. DR and gone through the relevant
material on record. There is no appearance from the side of the
assessee. However, the written submissions filed by her, whose
correctness has not been assailed by the ld. DR, have been taken
into consideration. It is seen that the assessee in her original return
filed u/s.139(4) declared gross income under the head ‘Income from
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house property’ at Rs.1,08,684/- and net income, after standard
deduction, at Rs.76,079/-. The benefit of TDS was not claimed
because the TDS certificates were not provided to the assessee at the
material time. Subsequently, on receipt of such certificates, she
filed revised return u/s.139(5) on 02-02-2005 claiming benefit of
TDS and also a rectification application.
Prior to substitution of sub-section (5) of section 139 by the
Finance Act, 2016 w.e.f. 01-04-2017, the mandate to file revised
return was only qua the return filed originally u/s.139(1).
Amendment has done away with this restricted mandate of revising
only the original return and not the belated return u/s.139(4) w.e.f.
01-04-2017. Going with the provision, as was applicable to the
assessment year 2003-04 under consideration, it is ostensible that
the revised return filed by the assessee was rightly not taken into
consideration because the original return was not filed u/s.139(1)
but u/s.139(4). Once, the belated return was not eligible for
revision, it was rightfully ignored by the AO.
If the revised return is pushed away from consideration, what
remains is that the assessee filed the return u/s.139(4) showing,
inter alia, ‘Income from house property’ but without claiming credit
for TDS in the absence of the necessary certificates issued by the
L&T. She moved a rectification application u/s.155(14) on
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31-01-2005 along with 12 TDS certificates issued by L&T towards
rent paid to the assessee. This rectification application remained
pending with the department for more than 14 years. It was only on
28-05-2019 that the order was passed rejecting the assessee’s
rectification filed on 02-02-2005.
In order to evaluate the claim of the assessee, it is essential to
examine the prescription of section 155(14), which provides that
where in the assessment for any previous year or in an intimation
u/s.143(1) of the Act, credit for TDS etc. has not been given on the
ground that the certificate furnished u/s.203 was not filed with the
return and subsequently the certificate is produced before the AO
along with rectification application within two years from the end of
the relevant assessment year, the AO shall amend the order of
assessment or the intimation u/s.143(1). The proviso to this sub-
section provides that: “Nothing contained in this sub-section shall
apply unless the income from which the tax has been deducted . . . .
. . . . . has been disclosed in the return of income filed by the
assessee for the relevant assessment year”. On an overview of this
provision, to the extent as it is relevant for our purpose, it clearly
transpires that the rectification application has to be accepted
u/s.155(14), where the assessee originally filed return without
claiming or being allowed the benefit for want of TDS certificates
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but disclosing the income subjected to deduction of tax at source
and thereafter within two years from the end of the relevant
assessment year files rectification application producing the TDS
certificates.
Adverting to the facts of the extant case, it is seen that the
assessee filed rectification application within one year from the end
of the relevant assessment year. This condition is, ergo, satisfied.
However, it is pertinent to note that though the assessee received
gross rent of Rs.1,29,000/- from L&T on which TDS of Rs.20,268/-
was made, but offered rental income in the return u/s.139(4) only to
the tune of Rs.1,08,684/- at gross level. Resultantly, the benefit of
TDS, in the rectification proceedings u/s 155(14) can be allowed
only to the extent of income originally offered by the assessee on
gross basis in the return u/s.139(4), which is to the tune of
Rs.1,08,684/- and not the total amount of rent received by the
assessee at Rs.1,29,000/- on which deduction of tax at source was
made of Rs.20,268/-. We, therefore, set-aside the impugned order
and direct the AO to grant proportionate credit of TDS in respect of
rental income of Rs.1,08,684/- as shown by the assessee in her
return filed u/s.139(4). Needless to say, the assessee will be
allowed reasonable opportunity of hearing.
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In the result, the appeal is partly allowed for statistical purposes.
Order pronounced in the Open Court on 21st August, 2023.
Sd/- Sd/- (PARTHA SARATHI CHAUDHURY) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; िदनांक Dated : 21st August, 2023 सतीश आदेश की �ितिलिप अ�ेिषत/Copy of the Order is forwarded to: अपीलाथ� / The Appellant; 1. ��थ� / The respondent 2. The Pr.CIT concerned 3. 4. DR, ITAT, ‘B’ Bench, Pune गाड� फाईल / Guard file. 5.
आदेशानुसार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune
Date 1. Draft dictated on 17-08-2023 Sr.PS 2. Draft placed before author 17-08-2023 Sr.PS 3. Draft proposed & placed before JM the second member 4. Draft discussed/approved by JM Second Member. 5. Approved Draft comes to the Sr.PS Sr.PS/PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *
