The ACIT, Circle -12,, Ahmedabad v. Shri Purshottam B. Pitroda/, Ahmedabad

ITA 3060/AHD/2010 | 2005-2006
Pronouncement Date: 30-11-2011 | Result: Allowed

Appeal Details

RSA Number 306020514 RSA 2010
Assessee PAN ITACT1961O
Bench Ahmedabad
Appeal Number ITA 3060/AHD/2010
Duration Of Justice 1 year(s) 17 day(s)
Appellant The ACIT, Circle -12,, Ahmedabad
Respondent Shri Purshottam B. Pitroda/, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 30-11-2011
Appeal Filed By Department
Order Result Allowed
Bench Allotted A
Tribunal Order Date 30-11-2011
Date Of Final Hearing 18-11-2011
Next Hearing Date 18-11-2011
Assessment Year 2005-2006
Appeal Filed On 12-11-2010
Judgment Text
- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE S/SHRI D.K.TYAGI JM AND A. MOHAN ALANKAMON Y AM. ASSTT. CIT CIRCLE-12 AHMEDABAD. VS. SHRI PURSHOTTAM B. PITRODA OPP. AMBALAL ESTATE N.H.NO.8 GHODASAR AHMEDABAD. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI D. V. SINGH SR.DR RESPONDENT BY:- SHRI S. N. DIVATIA AR DATE OF HEARING :18/11/2011 DATE OF PRONOUNCEMENT : 30.11.11. O R D E R PER D. K. TYAGI JUDICIAL MEMBER . THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A) DATED 18.8.2010 RAISING FOLLOWING GROUNDS :- 1. THE LD. CIT(A)-XX AHMEDABAD HAS ERRED IN LAW AND O N FACTS IN DIRECTING THE AO TO ALLOW CREDIT OF TDS OF RS.5 34 711/- AND RS.1 53 104/- IN THE ASST. YEAR 2005-06 EVEN THOUG H IT PERTAINED TO RECEIPTS ACCOUNTED AND DISCLOSED FOR TAXATION IN THE EARLIER YEAR. 1.2 IN DOING SO THE LD. CIT(A)-XX AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT AS PER THE PROVIS IONS OF SEC.199 OF THE IT ACT READ WITH RULE 37BA(3) OF THE IT RULE S CREDIT FOR ITA NO.3060/AHD/2010 ASST. YEAR :2005-06 ITA NO.3060/AHD/2010 ASST. YEAR 2005-06 2 TAX DEDUCTED AT SOURCE AND PAID TO THE CENTRAL GOVE RNMENT SHALL BE GIVEN FOR THE ASSESSMENT YEAR FOR WHICH SUCH INC OME IS ASSESSABLE. 2. THE EFFECTIVE GROUND IS THAT LD. CIT(A)-XX AHME DABAD HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE AO TO ALLOW CR EDIT OF TDS OF RS.5 34 711/- AND RS.1 53 104/- IN THE ASST. YEAR 2 005-06 EVEN THOUGH IT PERTAINED TO RECEIPTS ACCOUNTED AND DISCLOSED FOR T AXATION IN THE EARLIER YEAR. THE FACTS OF THE CASE ARE THAT THE ASSESSEE I S ENGAGED IN BUSINESS OF EXCAVATION OF MINING AND SALT AND ASSESSED TO INCOM E-TAX FOR ASST. YEAR 2005-06. THE ASSESSEE HAD FILED HIS RETURN OF INCOM E ON 30.10.2005 DECLARING TOTAL INCOME RS.80 650/-. THE CASE WAS SE LECTED FOR SCRUTINY U/S 143(2) AND THE AO COMPLETED THE ASSESSMENT ORDER ON 7/9/2007 DETERMINING TOTAL INCOME AT RS.62 92 780/-. THEREAF TER ORDER U/S 250 WAS PASSED ON 4/6/2008 DETERMINING TOTAL INCOME AT RS.1 85 539/-. THEN THE CASE WAS TAKEN FOR RE-ASSESSMENT U/S 147. THE AO DI D NOT GIVE REASONS FOR REOPENING THE ASSESSMENT TO ASSESSEE AND PASSED ORDER U/S 143(3) OF THE IT ACT 1961 ON 4.12.2009 RECEIVED BY ASSESSEE ON 30/12/2009 WITHOUT MAKING ANY ADDITION TO TOTAL INCOME BUT HE HAD WITHDRAWN THE CREDIT GRANTED FOR TDS OF RS.5 34 711/- AND RS.1 53 106/- IN RESPECT OF TDS CERTIFICATES ISSUED BY THE PARTIES FOR THE PERI OD 1.4.2004 TO 31.3.2005. WHEREAS AS PER THE BOOKS OF ACCOUNTS IN COME CORRESPONDING TO ABOVE CERTIFICATES WERE ACCOUNTED IN THE ASST. Y EAR 2004-05 RELEVANT TO F.Y. 2003-04. THE ASSESSEE HAD DISCLOSED INCOME IN THE PRECEDING YEAR ITA NO.3060/AHD/2010 ASST. YEAR 2005-06 3 AND CLAIMED CREDIT OF TDS IN SUCCEEDING YEAR AND BY CLAIMING CREDIT OF TDS IN LATER YEAR HE HAD ALSO LOST THE INTEREST ON REFUND TO BE GRANTED IN PRECEDING YEAR. IN NO WAY THE DEPARTMENT HAD LOST INCOME BY WAY OF INCOME-TAX OR INTEREST THEREON BUT ASSESSEE HAD TO SUFFER THE LOSS OF INTEREST ON REFUND TO BE GRANTED IN PRECEDING YEAR. HE HAD NOT CLAIMED CREDIT OF TDS IN EARLIER YEARS SO AS TO CLAIM SAVIN G OF INTEREST PAYABLE THEREON. THE LD. AO CITED THE CASES WHERE CREDIT OF TDS IS CLAIMED IN EARLIER YEAR AND INCOME IN RESPECT OF TDS IS ACCOUN TED IN SUCCEEDING YEAR. THE AO MADE DISALLOWANCE AS UNDER :- THE JOB WORK RECEIPTS DECLARED BY THE ASSESSEE AS PER THE BOOKS OF ACCOUNTS IS RS.24 55 98 353/- WHEREAS THE JOB WORK RECEIPTS AS PER THE TDS CERTIFICATES FILED BY THE ASSESSEE TOTALING TO RS.27 99 36 242/-. ON SCRUTINY OF THE JOB WORK RECEIPTS IT IS SEEN THAT THE ASSESSEE HAS CLAIMED TDS OF RS.5 34 771/- ON JOB WORKS RECEIPT OF RAJ PA RDI SITE RS.2 60 86 413/- AND TDS OF RS.1 53 106/- ON JOB WO RK RECEIPT OF TADKESHWAR SITE RS.69 03 465/- AND TDS OF RS.30 996 /- ON ADVANCE RECEIVED FROM NIRMA LTD. RS.13 48 011/-. THE JOB WO RK RECEIPTS OF RS.2 60 86 413/- AND RS.69 03 465/- PERTAIN TO ASST . YEAR 2004-05 AND HAVE BEEN TAXED ACCORDINGLY IN ASST. YEAR 2004-05 B UT THE TDS OF RS.5 34 771/- AND RS.1 53 106/- HAS BEEN CLAIMED IN THE YEAR UNDER CONSIDERATION I.E. ASST. YEAR 2005-06. THE CLAIM OF THE ASSESSEE IS INCORRECT AND NOT SUPPORTED BY THE PROVISION OF THE SECTION 199 OF THE IT ACT. AS PER SECTION 199 OF THE IT ACT CREDIT FOR TA X DEDUCTED SHALL BE GIVEN TO THE ASSESSEE FOR THE AMOUNT SO DEDUCTED ON THE P RODUCTION OF THE CERTIFICATE IN THE ASSESSMENT MADE UNDER THE IT ACT FOR THE ASST. YEAR FOR WHICH SUCH INCOME IS ASSESSABLE. IT IS SEEN THAT AL L THE CERTIFICATES PERTAIN TO ASST. YEAR 2004-05 AND THE CORRESPONDING INCOME HAS ALSO BEEN ASSED IN ASST. YEAR 2004-05. SINCE THE INCOME HAS BEEN AS SED IN ASST. YEAR 2004-05 CREDIT FOR THE TAX DEDUCTED AT SOURCE CANNO T BE ALLOWED OR GRANTED IN ASST. YEAR 2005-06. THE CREDIT GRANTED F OR TDS OF RS.5 34 711/- AND RS.1 53 106/- THEREFORE IS REQUIR ED TO BE WITHDRAWN. THE CREDIT IS THEREFORE WITHDRAWN AND NOT GRANTED IN ASST. YEAR 2005-06. THE HONBLE DELHI HIGH COURT IN THE CASE OF TURNER INTERNATIONAL INDIA P. LTD. REPORTED IN 297 ITR 373 (DEL) HAS HELD THAT FOR TAKING CREDIT OF ITA NO.3060/AHD/2010 ASST. YEAR 2005-06 4 THE TAX DEDUCTED AT SOURCE THE TAX DEDUCTED AT SOU RCE SHOULD CORRESPOND TO THE AMOUNT OFFERED FOR TAXATION. THE HONBLE MA DRAS HIGH COURT HAS IN 149 ITR 788 (MAD) HELD THAT TAX CREDIT CAN BE G IVEN ONLY IN CASES WHERE THE TAX IS PAID ON THE INCOME IN RESPECT OF W HICH DEDUCTION HAS BEEN MADE AT SOURCE AND WHICH IS OFFERED FOR ASSESS MENT. IN 6 ITR 206 (PC) IT IS HELD THAT IF THE INCOME IS NOT INCLUDED IN THE TOTAL INCOME THE CREDIT FOR TDS IS NOT ADMISSIBLE. THUS THE SETTLE D LAW IS THAT THE TAX DEDUCTED AT SOURCE SHOULD CORRESPOND TO THE AMOUNT OFFERED FOR TAXATION. THUS CREDIT OF TDS OF RS.5 34 711/- AND RS.1 53 10 4/- IS DIRECTED TO BE WITHDRAWN AS IT DOES NOT PERTAIN TO ASST. YEAR 2005 -06 AND GRANTING CREDIT FOR THE SAME IS NOT PERMITTED AS PER THE PRO VISIONS OF SECTION 199 OF THE IT ACT. 3. THE ASSESSEE WENT IN APPEAL BEFORE THE FIRST APP ELLATE AUTHORITY. THE ISSUE RAISED BEFORE THE FIRST APPELLATE AUTHORI TY WAS THAT THE TDS WAS DEDUCTED IN THE CASE OF PAYMENTS MADE TO THE ASSESS EE IN ASST. YEAR 2005-06. HOWEVER AFTER EXAMINATION OF THE DETAILS THE AO CONCLUDED THAT THE INCOME FOR JOB WORK SHOWN IN THE TDS CERTI FICATE HAD ALREADY BEEN REFLECTED IN THE ASST. YEAR 2004-05. THE AO ST ATED THAT CREDIT COULD NOT BE GIVEN IN ASST. YEAR 2005-06 AS INCOME HAD BE EN SHOWN IN THE ASST. YEAR 2004-05. THE ASSESSEE MADE FOLLOWING SUB MISSIONS :- WE HAVE RECEIVED ASSESSMENT ORDER PASSED U/S 143(3 ) DATED 4/12/2009 ON 30/12/2009 SENT THROUGH POST. WHILE GOING THROUG H THE SAME WE COME TO KNOW THAT AO HAD WITHDRAWN THE CREDIT GRANTED FO R TDS OF RS.5 34 711/- AND RS.1 53 106/- IN RESPECT OF TDS C ERTIFICATES ISSUED BY THE PARTIES FOR THE PERIOD 1.4.2004 TO 31.3.2005. W HEREAS AS PER THE BOOKS OF ACCOUNTS INCOME CORRESPONDING TO ABOVE CE RTIFICATES WERE ACCOUNTED IN THE ASST. YEAR 2004-05 RELEVANT TO F.Y .2003-04. WE HAD FILED RETURN OF INCOME ON 30.10.2005 DECLARI NG TOTAL INCOME OF RS.80 650/-. CASE WAS SELECTED FOR SCRUTINY UNDER S ECTION 143(2) AND THE LD. AO HAS COMPLETED HIS ASSESSMENT AND PASSESSED A SSESSMENT ORDER ON 7/9/2007 DETERMINING TOTAL INCOME AT RS.62 92 780/- AND GRANTED CREDITS OF ALL TDS CERTIFICATES. THEREAFTER ORDER U/S 250 W AS PASSED ON 4/6/2008 DETERMINING TOTAL INCOME AT RS.1 85 539/-. THEN CAS E WAS TAKEN FOR ITA NO.3060/AHD/2010 ASST. YEAR 2005-06 5 REASSESSMENT U/S 147. ASSESSING OFFICER HAS NOT GIV EN REASONS FOR RE- OPENING THE ASSESSMENT TO ASSESSEE AND HAS PASSED O RDER U/S 143(3) OF THE IT ACT 1961 ON 4/12/2009 RECEIVED BY US ON 30/1 2/2009 WITHOUT MAKING ANY ADDITION TO TOTAL INCOME BUT HE HAS WITH DRAWN THE CREDIT GRANTED FOR TDS OF RS.5 34 711/- AND RS.1 53 106/- IN RESPECT OF TDS CERTIFICATES ISSUED BY THE PARTIES FOR THE PERIOD 1 .4.2004 TO 31.3.2005 WHICH WAS EARLIER GRANTED BY SAME AO DURING HIS ASS ESSMENT PROCEEDING. AS PER OBSERVATIONS OF AO IN THE BOOKS OF ACCOUNTS INCOME CORRESPONDING TO ABOVE CERTIFICATES WAS ACCOUNTED I N THE ASST. YEAR 2004-05 RELEVANT TO FY 2003-04. ASSESSEE HAS DISCLOSED INCOME IN THE PRECEDING YEAR AND CLAIMED CREDIT OF TDS IN SUCCEEDING YEAR AND BY CLAIMING CREDIT OF TDS IN LATER YEAR HE HAS ALSO LOST THE INTEREST ON REFUND TO BE GRANTED IN PRECEDING YEAR. IN NO WAY DEPARTMENT HAS LOST INCOME BY WAY OF INCOME TA X OR INTEREST THEREON BUT ASSESSEE HAS TO SUFFER THE LOSS OF INT EREST ON REFUND TO BE GRANTED IN PRECEDING YEAR. HE HAS NOT CLAIMED CREDI T OF TDS IN EARLIER YEARS SO AS TO CLAIM SAVING OF INTEREST PAYABLE THE REON. INTENTION OF LEGISLATURE IS VERY CLEAR NOT TO LOSE THE INTEREST ON TAX PAYABLE. IN OUR PRESENT CASE REVENUE IS NOT AT ALL LOSING INTEREST OR TAXES. THE LD. CIT(A) CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS OF THE ASSESSEE AND ALLOWED THE CREDIT OF THE AMOUNT FOR T DS IN ASST. YEAR 2005-06 BY OBSERVING AS UNDER :- 4.2 I HAVE CONSIDERED THE FACTS OF THE CASE ASSES SING OFFICERS FINDINGS AND OBSERVATIONS AND CONTENTION OF THE AR OF THE AP PELLANT. IN THE CASE OF YASHPAL SAHANI VS. REKHA HAZARNAVIS & OTHERS (BOM) 293 ITR 593 (BOM) IT HAS BEEN HELD THAT EVEN IF THE DEDUCTOR DE POSITED THE TAX IN THE GOVERNMENT ACCOUNT IN A SUBSEQUENT YEAR THE TDS WA S ALLOWABLE IN THE CASE OF A DEDUCTEE IN THE YEAR IN WHICH THE INCOME HAD BEEN OFFERED AND THE TAX WAS DEDUCTED FROM THE AMOUNT PAID/CREDITED. IN THE CASE OF ESCORTS LTD. VS. DCIT CIRCLE-11(1) NEW DELHI REPOR TED IN (2007) 155 SOT 0368 (DEL.TRIB) IT HAS BEEN HELD THAT EVEN IF T HE TDS DEPOSITED IN THE GOVERNMENT ACCOUNT LATER THE INTEREST FOR WHICH THE TDS WAS DEDUCTED WAS OFFERED FOR TAXATION EARLIER THEN TDS CREDIT WOULD BE ALLOWABLE IN THE EARLIER YEAR. 4.4 IN VIEW OF THE ABOVE IT IS CLEAR THAT THE TDS WAS CLEARLY ALLOWABLE TO THE APPELLANT IF HE HAD CLAIMED IN THE EARLIER Y EAR ALSO. HOWEVER SINCE INCOME ON WHICH TDS HAS BEEN MADE HAS ALREADY BEEN OFFERED FOR ITA NO.3060/AHD/2010 ASST. YEAR 2005-06 6 TAXATION IN ASST. YEAR 2004-05 HENCE THERE WAS NO L OSS TO REVENUE IF THE TDS IS ALLOWED IN ASST. YEAR 2005-06. 4.5 CONSIDERING THE ABOVE IT IS CLEAR THAT THE AO WOULD HAVE TO ALLOW THE CREDIT OF THE TDS IN THE ASST. YEAR 2004-05 HAD THE APPELLANT MADE SUCH CLAIM. AT THE SAME TIME THE DEPARTMENT WOULD HAVE TO PAY INTEREST U/S 244A ON THE SAID TDS HAD THE APPELLANT CLAIMED IT IN ASST. YEAR 2004- 05 IN VIEW OF THE DECISIONS CITED ABOVE. 4.6 IT IS CLEAR THAT THERE IS NO LOSS TO REVENUE IF THE CREDIT FOR TDS IS ALLOWED IN ASST. YEAR 2005-06 SINCE THE INCOME HAS ALREADY BEEN OFFERED TO TAX IN ASST. YEAR 2004-05. IN VIEW OF THE ABOVE THE AO IS DIRECTED TO ALLOW THE CREDIT FOR TDS IN ASST. YEAR 2005-06. AGGRIEVED BY THIS ORDER OF LD. CIT(A) THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 5. BEFORE US THE LD. DR RELYING ON THE ORDER OF AS SESSING OFFICER SUBMITTED THAT THE ASSESSEE HAD CLAIMED TDS OF RS.5 34 711/- ON JOB WORKS RECEIPTS OF RAJ PARDI SITE RS.2 60 86 413/- A ND TDS OF RS.1 53 104/- ON JOB WORK RECEIPTS OF TADKESHWER SI TE RS.69 03 465/- AND TDS OF RS.30 996/- ON ADVANCE RECEIVED FROM NIR MA LTD.13 48 011//-.THE JOB WORK RECEIPTS OF RS.2 60 8 6 413/- AND RS.69 03 465/- PERTAINED TO ASST. YEAR 2004-05 AND HAD BEEN TAXED ACCORDINGLY IN ASST. YEAR 2004-05 BUT THE TDS OF RS .5 34 711/- AND RS.1 53 104/- HAD BEEN CLAIMED IN THE YEAR UNDER CO NSIDERATION I.E. ASST. YEAR 2005-06. THE CLAIM OF ASSESSEE IS IN CORRECT I N ACCORDANCE WITH THE PROVISIONS OF SECTION 199 OF THE IT ACT. AS PER SEC TION 199 OF THE IT ACT CREDIT FOR TAX DEDUCTED SHALL BE GIVEN TO THE ASSES SEE FOR THE AMOUNT SO DEDUCTED ON THE PRODUCTION OF THE CERTIFICATE IN TH E ASSESSMENT MADE ITA NO.3060/AHD/2010 ASST. YEAR 2005-06 7 UNDER THE ACT FOR ASST. YEAR FOR WHICH SUCH INCOME IS ASSESSABLE. ALL THE CERTIFICATES PERTAINED TO ASST. YEAR 2004-05 AND TH E CORRESPONDING INCOME HAD ALSO BEEN ASSESSED IN ASST. YEAR 2004-05 . SINCE THE INCOME HAS BEEN ASSESSED IN ASST. YEAR 2004-05 CREDIT FOR THE TAX DEDUCTED AT SOURCES CANNOT BE ALLOWED OR GRANTED IN ASST. YEAR 2005-06. THE CREDIT GRANTED FOR TDS OF RS.5 34 711/- AND RS.1 53 104/- THEREFORE WAS REQUIRED TO BE WITHDRAWN AND THE AO HAS RIGHTLY WIT HDRAWN THE SAME. THE LD. CIT(A) WAS NOT JUSTIFIED IN ALLOWING THE CL AIM OF ASSESSEE. HIS ORDER MAY KINDLY BE SET ASIDE AND THAT OF THE AO BE RESTORED. 6. ON THE OTHER HAND THE COUNSEL OF THE ASSESSEE SU PPORTED THE ORDER OF LD. CIT(A) AND RELYING ON THE DECISION OF THE TR IBUNAL MUMBAI J BENCH IN THE CASE OF TOYO ENGG. INDIA LTD. VS. JT. CIT (MUMBAI) (2006) 100 TTJ (MUMBAI) 373 SUBMITTED THAT THE LD. CIT(A) WAS JUSTIFIED IN ALLOWING THE CLAIM OF ASSESSEE. THERE IS NO INFIRMI TY IN HIS ORDER. THE SAME MAY KINDLY BE UPHELD. 7. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RECORD WE FIND THAT ASSESSEE CLAIMED TDS OF RS.5 34 711/- ON JOB WORK RECEIPTS OF RAJ PARDI SITE RS.2 60 86 413/- AND TDS OF RS.1 53 104/- ON JOB WORK RECEIPTS OF TADKESHER SITE RS.69 03 465/- AND TDS O F RS.30 996/- ON ADVANCE RECEIVED FROM NIRMA LTD. 13 48 011/-. THE J OB WORK RECEIPTS OF RS.2 60 86 413/- AND RS.69 03 465/- PERTAINED TO AS ST. YEAR 2004-05 AND ITA NO.3060/AHD/2010 ASST. YEAR 2005-06 8 HAD BEEN TAXED IN ASST. YEAR 2004-05 BUT THE TDS OF RS.5 34 711/- AND RS.1 53 104/- WAS CLAIMED IN THE YEAR UNDER CONSID ERATION I.E. ASST. YEAR 2005-06. THE CLAIM OF ASSESSEE IS INCORRECT AND NOT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 199 OF THE IT ACT. IT WIL L BE RELEVANT TO REFER TO SECTION 199 WHICH READS AS UNDER :- [ CREDIT FOR TAX DEDUCTED . 199. (1) ANY DEDUCTION MADE IN ACCORDANCE WITH THE FOREGOING PROVISIONS OF THIS CHAPTER AND PAID TO THE CENTRAL GOVERNMENT SHALL BE TREATED AS A PAYMENT OF TAX ON BEHALF OF THE PERSON FROM WHOSE INCOME THE DEDUCTION WAS MADE OR OF THE OWNER OF THE SECU RITY OR OF THE DEPOSITOR OR OF THE OWNER OF PROPERTY OR OF THE UNI T HOLDER OR OF THE SHAREHOLDER AS THE CASE MAY BE. (2) ANY SUM REFERRED TO IN SUB-SECTION (1A) OF SE CTION 192 AND PAID TO THE CENTRAL GOVERNMENT SHALL BE TREATED AS THE TAX PAID ON BEHALF OF THE PERSON IN RESPECT OF WHOSE INCOME SUCH PAYMENT OF T AX HAS BEEN MADE. (3) THE BOARD MAY FOR THE PURPOSES OF GIVING CRE DIT IN RESPECT OF TAX DEDUCTED OR TAX PAID IN TERMS OF THE PROVISIONS OF THIS CHAPTER MAKE SUCH RULES AS MAY BE NECESSARY INCLUDING THE RULES FOR THE PURPOSES OF GIVING CREDIT TO A PERSON OTHER THAN THOSE REFERRED TO IN SUB-SECTION (1) AND SUB- SECTION (2) AND ALSO THE ASSESSMENT YEAR FOR WHICH SUCH CREDIT MAY BE GIVEN.] THE HONBLE DELHI HIGH COURT IN THE CASE OF TURNER INTERNATIONAL INDIA P. LTD. 297 ITR 373 (DEL) HAS HELD THAT FOR TAKING CREDIT OF THE TAX DEDUCTED AT SOURCE THE TAX DEDUCTED AT SOURCE SHOU LD CORRESPOND TO THE AMOUNT OFFERED FOR TAXATION. THUS IN VIEW OF THE ABOVE WE ARE OF THE CONSIDERED VIEW THAT SINCE THE INCOME HAS BEEN ASSE SSED IN ASST. YEAR 2004-05 CREDIT FOR THE TAX DEDUCTED AT SOURCE CANNO T BE ALLOWED OR ITA NO.3060/AHD/2010 ASST. YEAR 2005-06 9 GRANTED IN ASST. YEAR 2005-06. THE CREDIT GRANTED F OR TDS OF RS.5 34 711/- AND RS.1 53 104/- WAS RIGHTLY WITHDRA WN BY THE AO. THE LD. CIT(A) HAS WRONGLY ALLOWED THE CLAIM OF THE ASS ESSEE. WE SET ASIDE HIS ORDER AND RESTORE THAT OF THE AO. THE RELIANCE PLACED BY THE ASSESSEE ON THE TRIBUNAL MUMBAI IN THE CASE OF TOYO ENGG. I NDIA LTD. VS. JT. CIT (SUPRA) IS MISPLACED IN VIEW OF THE DECISION OF TU RNER INTERNATIONAL INDIA (P) LTD. (SUPRA). HOWEVER THE ASSESSEE WILL BE FRE E TO TAKE UP THE ISSUE OF ALLOWABILITY OR TAKING CREDIT OF TDS BEFORE THE AO DURING THE YEAR IN WHICH INCOME WAS OFFERED. 8. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S ALLOWED. ORDER WAS PRONOUNCED IN OPEN COURT ON 30.11.11. SD/- SD/- (A. MOHAN ALANKAMONY) (D.K. TYAGI) ACCOUNTANT MEMBER JUDICI AL MEMBER AHMEDABAD MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER DEPUTY / ASSTT.REGISTRAR ITA NO.3060/AHD/2010 ASST. YEAR 2005-06 10 ITAT AHMEDABAD 1.DATE OF DICTATION 28/11/2010. 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER.OTHER MEMBER 30/11/2011 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..