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Income Tax Appellate Tribunal, PUNE BENCH “SMC”, PUNE
Before: SHRI R.S. SYAL
आदेश / ORDER
PER R.S. SYAL, VP :
This appeal by the assessee arises out of the order passed by the CIT (Appeals)-3, Pune on 07.02.2018 in relation to the assessment year 2013-14.
This appeal was filed belatedly by 3 days. The assessee has filed an affidavit giving reasons for the delay. The reasons ascribed for the delay
2 ITA No. 771/PUN/2018 A.Y.2013-14
are satisfactory. I, therefore, condone the delay and admit the appeal for
hearing on merits.
The assessee is aggrieved by not allowing credit for tax collected at
source against the tax due on total income.
Briefly stated, the facts of the case are that the assessee is a
partnership firm engaged in the business of IMFL products, including
wines and beers for many liquor and beer manufacturing companies.
The assessee furnished return declaring total income at Rs.23,70,003/-.
The Assessing Officer completed the assessment by assessing the total
income at the same level, but did not allow the benefit of TCS against the
amount of tax due on total income. The assessee contended before the ld.
CIT(Appeals)-3 that benefit of TDS/TCS amounting to Rs.7,41,781/-
should be allowed against tax liability of Rs.7,32,330/- and the refund of
Rs.9,450/- be granted. The ld. CIT(Appeals) observed that one supplier,
namely, M/s. Cromex Liquors Pvt. Ltd., from whom the assessee had
purchased liquor during the year under consideration, collected tax at
source to the tune of Rs.6,37,931/-, but did not deposit the same in the
Government account. He, therefore, denied the benefit of such tax credit.
The assessee is aggrieved by the decision of CIT(A) on this score.
I have heard both the parties and perused the relevant material
available on record. It is an undisputed position that M/s. Cromex
Liquors Pvt. Ltd. collected tax at source from the assessee amounting to
Rs.6,37,931/- but did not deposit the same in the Government
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exchequer. The moot issue is as to whether the benefit of tax collected at
source should be allowed to the assessee under such circumstances. In
my view, the lower authorities erred in denying the benefit of tax
collected at source from the assessee by M/s. Cromex Liquor Pvt. Ltd. to
the extent of Rs.6,37,931/-. The Assessing Officer, in the remand report,
has fairly admitted that tax of such a magnitude was in fact, collected
against the supplies made to the assessee. The benefit of tax credit was
denied only on the ground that M/s. Cromex Liquor Pvt. Ltd. did not
deposit the amount of tax collected at source in the Government account.
I fail to comprehend as to how the assessee can be called upon to
pay the amount of such tax again, when it was lawfully collected at
source by someone on behalf of Government of India. If the collector has
not deposited the amount, after due deduction, it is such a tax collector
who should be held responsible for his default. Under no circumstance,
the Department can press the assessee to not take credit for the amount
of tax legitimately collected tax at source from it. Section 205 of the Act
clearly provides that “where tax is deductable at the source under the
foregoing provisions of this Chapter, the assessee shall not be called
upon to pay the tax himself to the extent to which tax has been deducted
from that income.” It is, therefore, abundantly clear that the Income-tax
Act itself carries a bar against recovery of any tax deducted/collected at
source from the assessee where it has been actually deducted/collected
at source. In view of the foregoing discussion, I am unable to sustain the
view canvassed by the authorities below in not allowing credit for tax
collected at source by M/s. Cromex Liquors Pvt. Ltd. from the assessee
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merely on the ground that such collected tax at source amount did not get deposited in the Government account. I, therefore, overturn the impugned order and direct the Assessing Officer to grant adjustment of such tax collected at source against the tax liability of the assessee.
In the result, appeal of the assessee is allowed. 7. Order pronounced on 13th day of December, 2018.
Sd/- R.S. SYAL उपा�य� /VICE-PRESIDENT
पुणे / Pune; �दनांक / Dated : 13th December, 2018. SB आदेश क� ��त�ल�प अ�े�षत / Copy of the Order forwarded to :
अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The CIT (Appeals)-3, Pune. 4. The Pr. CIT-2, Pune. 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, “एक-सद�य” ब�च, पुणे / DR, ITAT, “SMC” Bench, Pune. गाड� फ़ाइल / Guard File. 6.
// True Copy // आदेशानुसार / BY ORDER,
�नजी स�चव / Private Secretary आयकर अपील�य अ�धकरण, पुणे / ITAT, Pune.
5 ITA No. 771/PUN/2018 A.Y.2013-14
Date 1 Draft dictated on 13.12.2018 Sr. PS/PS 2 Draft placed before author 13.12.2018 Sr. PS/PS 3 Draft proposed and placed JM/AM before the second Member 4 Draft discussed/approved by AM/JM second Member 5 Approved draft comes to the Sr. PS/PS Sr. PS/PS 6 Kept for pronouncement on Sr. PS/PS 7 Date of uploading of order Sr. PS/PS 8 File sent to Bench Clerk Sr. PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R 11 Date of dispatch of order
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