TOMORROW CAPITAL ENTERPRISES PRIVATE LIMITED,MUMBAI vs. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 7(3) , MUMBAI

PER OM PRAKASH KANT, AM

These two appeals by the assessee are directed against two separate orders, both dated 29.10.2024, passed by the Ld.
Commissioner of Income-tax (Appeals) – 49, Mumbai [in short ‘the Ld. CIT(A)’] for assessment year 2021-22 and 2022-23 respectively.
As a common ground in dispute is involved in both these appeals, therefore, same were consolidated order fo
2. The grounds
6990/Mum/2024 for under:
1. The Hon'bl
[Hereinafter r to enforce the and earmark appellant" ins credit to the A The Appellan for the TDS of deductor; how
Therefore, gra
3. Briefly stated, fa banking financial c income electronically
Rs.6,15,49,118/-. Th processed and intima short the Act) was is the tax deducted at s not granted is reprod
Sl. No.
Particulars
1. TDS credit pe
Lodha Ventur
Form 26AS of 2. TDS credit ap
Appellant com
3. TDS credit p
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ITA No. 69

heard together and disposed of r the sake of convenience.
raised by the assessee r assessment year 2021-22 are le Commissioner of Income Tax (Appeal) 4
referred as "CIT(A)"] erred in directing the e recovery of Rs. 1,64,81,206/- from th the said TDS liability as "not recoverabl stead of directing the AO to allow the Appellant resulting into income tax refund t prays that the AO shall be directed to of Rs. 1,64,81,206/- being deducted by t wever, not paid to the credit of Central G ant refund to the Appellant.
acts of the case are that the ass orporation. The assessee filed y on 31.03.2022 declaring t he return of income filed by th ation u/s 143(1) of the Income-t ssued on 13.11.2022, wherein c source (TDS) was not granted. D duced as under:
ertaining to amalgamating company i res Holding Pvt. Ltd and appearing f LVHPL pearing in Form 26AS of the mpany pertaining to amalgamating company tal Enterprises Pvt. Ltd
2
990 & 6989/MUM/2024
ff by way of this in ITA
No.
e reproduced as 49, Mumbai e AO to "not e appellant le" from the above TDS d.
give credit the payer /
Government.
sessee is a non- d its return of otal income at he assessee was tax Act,1961( in certain credit for Detail of the TDS
Amount (Rs.)
.e.
in 95,02,267
61,28,853
ie 87,270

Lodha Ventu deductor has government

Total TDS cre
4. On further app
Rs.95,02,267/- at se serial No. 2. The cre by the Ld. CIT(A) obs
“8.2.3 The ap and Rs. 87,2
the deductors
Government.
the correspon
Appellant has and 11.03.2
Officers not to credit due to treasury by th judicial decisi of the decisio
Yashpal Sahn
"24. As stated established th source by th revenue has penalty from seek to recov view of the sp fact that the deducted at s the responden tax deducted the credit of assessee for w deducted at s sufficient to h
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ITA No. 69

ures Holding Private Limited but th not deposited to the TDS to the credit t allowed to the Appellant as deductor h to the TDS to the credit of government.
onciled edit not allowed to the Appellant peal, the Ld. CIT(A) granted cr rial No. 1 and TDS credit for Rs dit for the remaining amount w erving as under:
ppellant has claimed the TDS credit of Rs
70/- which is not reflected in the form 26
s had not paid the same to the credit of Appellant has further submitted that it nding income and, in its book & the retur s relied upon the CBDT Circular dated
016 wherein CBDT has directed the o enforced demand created on account of o non-payment of TDS amount to the he Deductor. The Appellant has relied upo ions in support of its contentions. The op on of Hon'ble High Court of Bombay in ni vs. ACIT (293 ITR 539) is reproduced as d earlier, in the present case petitioner-a hat from his salary income, tax has been he employer-respondent No.6 and, th to recover the said TDS amount with the respondent No.6 alone and the rev ver the said amount from the petitioner pecific bar contained under section 205 of e petitioner is not entitled to the credi source for the non-issuance of the TDS c nt No.6, cannot be a ground to recover th at source from the petitioner. In other w the TDS amount is not available to th want of TDS certificate, the fact that the t source from salary income of the petition hold that as per section 205 of the Act, tal Enterprises Pvt. Ltd
3
990 & 6989/MUM/2024
he of as 6,48,984
1,13,828
1,64,81,202
redit for TDS of s.61,28,853/- at was not allowed s. 6,48,984/-
6AS because f the Central t has offered rn of income.
d 01.06.2015
e Assessing f mismatch of Government on number of perative part n the case of s under- assessee has n deducted at herefore, the interest and venue cannot r-assessee in f the Act. The it of the tax certificate by he amount of words, even if he petitioner tax has been ner would be the revenue cannot recove once again.
25. In the re had deducted petitioner the with interest section 205 o refund to the Rs. 17,89,58
the date of p source is not not recoverab earmark the petitioner".
In all the dec have cited the is deductible shall not the which the tax
8.2.4 Conside pronounceme the tax has corresponding books of acco recovery of Rs
TDS liability a 8.2.5 Appella
1,13,828/- Th
5. Before us, the L of the Co-ordinate B
Finance Ltd. in ITA N
14 wherein the Tribu
Taxes (CBDT) office m finding of the Tribuna
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ITA No. 69

er the TDS amount with interest from t esult, the petition succeeds. As the resp d the tax at source from the salary in revenue could not have recovered the from the petitioner in view of the bar of the Act. Accordingly, the revenue is fr petitioner within 8 weeks from today th
7/- with interest @ 6% from the date of payment. Though the credit of the tax available to the petitioner, since the sa ble from the petitioner, the revenue is said TDS liability as "not recoverabl cisions relied upon by the appellant, Ho e Section 205 of the Act which states tha at source under provisions of this Act, t called upon to pay the tax by himself to x has been deducted.
ering the facts of the case and in light of nts, Assessing Officer is directed to ve s been deducted by the deductor a g income has been offered by the app ounts. If so, then the AO is directed not to s 7,36,254/- from the appellant and earm as "not recoverable" from the appellant.
ant has not reconciled the remaining TDS herefore, no relief is granted on the same.
Ld. counsel for the assessee refe
Bench of the Tribunal in the ca
No. 899/Mum/2018 for assessm unal has followed the Central memorandum dated 11/03/202
al is reproduced as under:
tal Enterprises Pvt. Ltd
4
990 & 6989/MUM/2024
the petitioner pondent No.6
ncome of the said amount contained in from direct to he amount of f recovery till deducted at id liability is s directed to le" from the on'ble Courts at where tax the assessee the extent to f the judicial erify whether and whether pellant in its o enforce the mark the said
S entry of Rs.
”
erred to decision ase of M/s ECL ment year 2013-
Board of Direct
26. The relevant

“7.1 Further, the Estate of substantial qu
"3. Wh
Section Appella been d
The Hon'ble rendered in th
(supra) and i
ITR 206 (Kar) the Departme assessee wh
High Court an of assessee /
the CBDT Cir benefit of TD same has be exchequer or Officer only amounts tha statement of 6. We have heard the relevant material
Rs.6,48,984/- has o case, the Ld. counse submitted that intere was deducted at sou deposited into Gove counsel submitted t already stands close
Finance Ltd. (supra)
Yashpal v. ACIT memorandum(supra)
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ITA No. 69

reliance has been placed in the case of f S. Shanmuga Mudaliar vs. ACIT (supra uestion of law before the Hon'ble High Co hether on the facts and circumstances n 205 of the Income Tax Act would app ant liable to pay tax to the extent to w deducted?"
/appellant. In the light of decision referr rcular (supra), we hold that the assesse
DS already deducted irrespective of the een deposited by the deductee to the not. This issue is restored back to the file for the limited purpose of verification at have been deducted but not reflec the assessee.”
rival submissions of the parti s on record. The TDS credit of R only been disputed before us.
el has referred to the Paper Boo est has been received from four urce by those parties but sam ernment account by those pa that the loan transactions wit d. We find that the Tribunal in ) has considered the decision
(supra) and relied on the ). The ld CIT(A) has also directed tal Enterprises Pvt. Ltd
5
990 & 6989/MUM/2024
f Executors of a). One of the ourt was:
s of the case, ply and is the which tax has the decision jarnavis, ACIT eported as 278
of the Act bars ource from the s, the Hon'ble and in favour red above and ee be allowed fact that the e Government e of Assessing n of the TDS cted in 26AS ies and perused
Rs.87,270/- and In the instant ok page 25 and parties and tax me has not been arties. The Ld.
h those parties n the case ECL in the case of e
CBDT office d the AO for not doing any recovery application of the necessary whether ta to the assessee. The support thereof and Therefore, in the inst
Officer whether the s not. Accordingly, we the Assessing Officer those parties from th whether the tax dedu them. The Assessing was deducted at so accordance with law.
is allowed for statistic
7. The ground rais as under:
1. The AO err against the Appellant in t
Rs. 1,81,95,5
The Appellan
TDS credit is Income Tax A TDS credit of corresponding year under c credit of Rs. 2
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ITA No. 69

y in respect of the TDS am ratio of the above decisions, ax was deducted by the party m e Ld. counsel could not file a d requested to restore the tant case it needs verification b said four parties had deducted t feel it appropriate to restore the r for verification of deduction of t heir records including financial ucted at source has been show
Officer after verification of the f ource by those parties, shall . The sole ground of the appeal cal purposes.
sed in assessment year 2022-2
red in allowing the TDS credit of Rs. 96,9
TDS credit of Rs 2,78,90,798/- claim the return of income resulting into short TD
502/-.
nt submits that the AO's action of not a in gross violation of section 199 r.w.s
Act, 1961 (Act). The Appellant has rightly c f Rs. 2,78,90,798/- in the return of inco g income has been offered for taxation consideration; hence, it shall be allowe
2,78,90,798/- as claimed in return of inco tal Enterprises Pvt. Ltd
6
990 & 6989/MUM/2024
mount. But for verification is making payment any evidence in matter to AO.
by the Assessing tax at source or e matter back to tax at source by statements and wn as liability by fact that the tax grant credit in of the assessee
3 is reproduced
95,296/- as med by the TDS credit of allowing the 205 of the claimed the ome as the during the ed the TDS ome

Copy of the Order forward
1. The Appellant
2. The Respondent.
3. CIT
4. DR, ITAT, Mumbai
5. Guard file.

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erred in charging interest u/s 234A,
Act.
ntical issue in dispute involved o the file of the Assessing Officer ctions given in assessment yea e accordingly allowed for statisti oth the appeals of the assessee ced in the open Court on 25/0
d/-
S
AUDHARY)
(OM PRAK
MEMBER
ACCOUNTA ded to :

BY ORDER

(Assistant Re

ITAT, Mu tal Enterprises Pvt. Ltd
7
990 & 6989/MUM/2024
234B and d, this appeal is r for deciding in ar 2021-22. The ical purposes.
e are allowed for 02/2025. KASH KANT)
ANT MEMBER
R, gistrar) umbai