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Income Tax Appellate Tribunal, DELHI BENCH ‘F’ NEW DELHI
Before: SH. R.K.PANDA & MS SUCHITRA KAMBLE
ORDER PER BENCH These four appeals preferred by the assessee, are directed against the order dated 09.09.2014 of the Commissioner of Income Tax (Appeal) [in short “CIT(A)”]-XVIII, New Delhi for 2007-08 to 2010-11 Assessment Years.
The grounds of appeal are as under:-
“1. On the facts and in the circumstances of the case and in law the authorities below erred in holding the rectification application of the Appellant as not falling under the purview of Section 154 of the I.T Act, 1961.
The grounds of appeal in all the four appeals are common. For the sake of convenience, we are taking the facts of the case for Assessment Year 2007-08.
3. The assessee is a company engaged in the manufacturing of wind electric generators (WEGs) in India for harnessing power form wind at different locations in India. The assessee filed its return of income for Assessment Year 2007-08 on 29/10/2007 at an income of Rs.77,38,98,824/-. The case was processed u/s 143(1) of the Income Tax Act, 1961 on 14/3/2009. The case was selected for scrutiny and notice u/s 143(2) of the Income Tax Act, 1961 was issued and served on 22/9/2006. Notice u/s 142(1) along with questionnaire were issued in this case and in response there to the Assessee’s Representative attended the office from time to time. Information sought for was furnished, books of accounts were produced and were examined on test check basis. The Assessing Officer made addition in respect of Section 40(a) (ia) of the Income Tax Act, 1961 for Rs.1,23,35,991/- and also the addition of Rs.62,120/- u/s 40A (3) of the Income Tax Act, 1961.
The assessee filed application u/s 154 of the Income Tax Act, 1961 on 18/10/2013 requesting therein due credit of additional TDS of Rs.47,56,311/- which is over and above of TDS of Rs.2,34,09,576/- which was claimed by it in its return of income which was e-filed on 29/10/2007 for Assessment Year 2007-08 declaring an income of Rs.77,38,98,824/-. The return of income was filed in the name of M/s Vestas RRB India Ltd which is now known as RRB Energy Ltd. The Assessing Officer vide order dated 21/10/2013 decided the application by holding as under:-
“The applicant of the assessee has been carefully examined and observed:-
1. 1. That the said ROI was never revised and also the credit of additional TDS was not claimed by it in its ROI originally filed.
2. That the claim of refund is governed by Section 239 of the Income Tax Act, 1961 which provides as :- 239 (1) Every claim for refund under this Chapter shall be made in the prescribed form and verified in the prescribed manner hereunder, namely:- (a) Where the claim is in respect of income which is assessable for any assessment year commencing on or before the 1st day of April, 1967, four years from the last day of such Assessment Year. b) Where the claim is in respect of income which is assessable for the Assessment Year commencing on the first day of April, 1968, three years from the last of the Assessment Year. c) Where the claim is in respect of income which is assessable for any other Assessment Year (one) year from the last day of such Assessment Year. In view of above, rectification application dated 18/10/2013 is disposed off as it does not fall under the purview of Section 154 of the Act.
Being aggrieved, the assessee filed appeal before the CIT(A). The CIT(A) held that this is not a case of mistake apparent from record and is a case of omission on the part of the assessee. Therefore, the appeal of the assessee was dismissed by the CIT(A).
The Ld. AR submitted that the CIT(A) as well as the Assessing Officer has not taken the cognizance of the contentions in the rectification application.
The CIT(A) himself stated that Assessing Officer has not passed speaking order that means the CIT(A) should have taken proper majors by directing the Assessing Officer to pass speaking order which the CIT(A) failed to do so.
The Ld. DR relied upon the order of the Assessing Officer as well as CIT(A).
We have heard both the parties and perused the material available on record. The CIT(A) has not taken the cognizance of the assessee’s application u/s 154 of the Income Tax Act, 1961 wherein he has clearly made out the case.
The actual facts of the case u/s 154 of the Income Tax Act, 1961, the Assessing Officer has power to do so. In the present case, the assessee company submitted a return of its income u/s 139(1) of the Act on 29.10.2007 declaring an income of Rs. 77,38,98,824/-. Intimation in respect of this return was issued on 14.03.2009. Credit for tax paid and TDS was partly allowed by the Assessing Officer. When the assessee received further receipt of TDS certificates, the assessee company moved a second application for rectification u/s 154 of the Act on 09.03.2010 which was not decided by the Assessing Officer. Therefore once again the rectification application was filed on 11.03.2013 followed by reminder application dated 18.10.2013. Thus, on reminder the Assessing Officer rejected the assessee’s claim of giving effect of TDS Certificates received by the Assessee. The contentions of the Ld. AR that as to the requirement of Section 239 as spelt out by the Assessing Officer, the same would arise, if need be, only after the determination of the refund. Such situation would not arise even before the statement of taxes paid is corrected and credit is given for the amounts as paid, seems to be according to the provisions of the Section 239 and the same should have been considered by the Assessing Officer and CIT(A) which both the authorities failed to do so. Simply granting credit as sought under the application originally made u/s 154 of the Act on 08.03.2013 within a period of 4 years of the order as passed u/s. 143(1) of the Act would have been right to do as it is a rectification and not a debatable issue. In fact Assessing Officer has given the credit of the TDS receipts which were produced at the time of the Assessment proceedings. But additional TDS certificates when produced through rectification application, the Assessing Officer as well as the CIT(A) has failed to take cognizance of the same. Therefore, the order of the CIT(A) are set aside. In other three appeals being 6448 & 6449/Del/2014 for A.Y. 2008-09, 2009-10 & 2010-11respectively, the issue is common, therefore, the orders of the CIT(A) are set aside.
In the result, all the four appeals of the assessee are allowed.
The order is pronounced in the open court on 06th October, 2017.
Sd/- Sd/- (R.K.PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER Date:- 06.10.2017 R. Naheed Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI
Date 1. Draft dictated 04.10.2017 PS 2. Draft placed before author PS 04.10.2017 3. Draft proposed & placed before the JM/AM second member 4. Draft discussed/approved by JM/AM Second Member. 5. Approved Draft comes to the PS/PS Sr.PS/PS 06.10.2017 6. Kept for pronouncement on PS 7. File sent to the Bench Clerk PS 06.10.2017 8. Date on which file goes to the AR 9. Date on which file goes to the Head Clerk. 10. Date of dispatch of Order.