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Income Tax Appellate Tribunal, “SMC” BENCH, AHMEDABAD
Asstt.Year : 2022-23 Premilaben Hasmukhbhai Patel DCIT, CPC Prp. Pramukh Enterprise Vs Bangalore at present: 21, Ambica Society ITO, Ward-1, Patan. OpP: Umiya Mata Mandir Unjha 384 170 PAN : CPDPP 4066 F (Applicant) (Responent) : Assessee by Shri P.F. Jain, CA Revenue by : Shri Ravindra, SR.DR सुनवाई क� तारीख/Date of Hearing : 09/10/2024 घोषणा क� तारीख /Date of Pronouncement: 09/10/2024 आदेश/O R D E R आदेश आदेश आदेश This is assessee’s appeal against the order of the ld.Commissioner of Income Tax (Appeal)-8, Mumbai dated 15.12.2023 for the Asst.Year 2022-23 passed under section 250 of the Income Tax Act, 1961 (“the Act” for short).
The assessee has raised the following grounds in the appeal against the impugned order of the ld.CIT(A).
The learned Addl./JCIT has erred in law and on facts in upholding the intimation dated 17/02/2023 passed u/s. 143(1) without appreciating and properly considering the facts and submissions made by the appellant during the course of proceedings of defective return.
He has erred in law and on facts in upholding notice of defective return u/s 139(9) by ignoring the provisions of the section 292B providing that for any mistake, the return cannot be held to be invalid. 3. He has erred in law and on facts in upholding grant of TDS credit of Rs.4,441 in place of Rs.99,978 claimed as refund by the appellant without properly appreciating the facts of the appellant resulting into grant of short refund by Rs.95,537.
He has erred in law and on facts in totally ignoring and over looking the facts of appellant being agent and Adatiya registered with APMC engaged in the activity of facilitating sales of agriculture produce of farmers to the traders in the auction held in open market of APMC. He has erred in law and on facts in ignoring and not appreciating the circular no. 13 of 2021 dated 30.06.2021 issued by CBIC, prescribing procedure for methodology of raising invoice.
On the facts of the assessee full refund of Rs.99,978 ought to have been granted. That the appellant craves leave to add, alter, amend, substitute, delete, and withdraw any or all of the grounds of appeal.
3. The main issue being agitated before me pertains to not according credit of the TDS to the assessee deducted by the APMC Adatiya. The credit for the TDS has not been given on the ground that the relevant turnover of the pertaining to the TDS has not been offered to tax. The ld.counsel for the assessee submitted that similar claim on some identical set of facts has been allowed the ld.CIT(A)-2, Gurugram in the case of one Ramilaben Jivanlal Patel for the Asstt.Year 2022-23 vide order dated 3.6.2024. He has placed on record copy of this order of the ld.CIT(A) on page no.49 to 55 of the paper book. For clarity, I reproduce the relevant portion of the order of the ld.CIT(A) contained para 6.1 as under:
“6.1 On Ground of Appeal No. 3:- This grounds of appeal is related to the issue of non-giving credit of TDS of Rs.1,39,075/-. I have carefully considered intimation u/s 143(1) of the Act passed by AO and E- submission filed by appellant. The issue is with respect to not granting full TDS credit of Rs.1,43,974/-. The AO, CPC restricted the TDS credit to Rs.1,899/- as against Rs.1,43,974/- claimed by the appellant. The appellant, who works as an Adatia/Commission Agent, receives income by way of commission from buyers of agricultural 'produce. It is submitted that the appellant sells agricultural produce on behalf of farmers, earning a commission, and that the buyer deducts TDS under section 194Q of the Act on the actual sale amount. After accounting for expenses and other business transactions, the appellant declared a net profit of Rs.5,49,251/- in the Profit and Loss account. The appellant has provided a detailed submission indicating receipt of commission totaling Rs.12,98,396/-related to activities as a commission agent, which has been duly reported in the Profit and Loss account and ITR. In view of the provisions of section 199(1) of the Act, TDS should go with income from which it is deducted. Since, receipts pertaining to TDS are offered 3 for taxation, there cannot be any disallowance of tax credit to the appellant. The contention raised by the appellant prima facie found to be correct. The AO is directed to grant credit as per provisions of law, after verifying the details. Accordingly, Ground no. 3 of appeal is/ allowed for statistical purpose.”
4. Keeping in view the facts of the case of the assessee and the reliance placed by the ld.counsel for the assessee on the above order of the ld.CIT(A) which he contended to be passed in the similar set of facts in the case of Ramilaben Jivanlal Patel (supra), I remand the matter back to the ld.AO for the examination of the issue afresh after providing reasonable opportunity of hearing to the assessee in accordance with law. Hence, the appeal of the assessee is allowed for statistical purpose.
In the result, the appeal of the assessee is allowed.
Dictated on the Open Court, typed and pronounced on 9th October, 2024.
Copy of this order be given to the assessee. The Registry is directed to dispatch as per procedure.
Sd/- (DR. BRR KUMAR) ACCOUNTANT MEMBER Ahmedabad, dated 09/10/2024