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AMICUS AI
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citation codes
Case Number
Attorney(S)
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Acts
  • provision of s. 199 stood amended by Finance (No.2) Act, 1996.As
  • u/s.143(3) of the Income Tax Act, 1961 ('the Act' hereinafter)
  • section 26(2) of the Income-tax Act, 1922
  • sec. 199 by Finance Act, 2008
  • section 199 r/w ss. 190
  • FINANCE NO 2 ACT 1996
  • FINANCE ACT 2008
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
Judges
Acts
  • provision of s. 199 stood amended by Finance (No.2) Act, 1996.As
  • u/s.143(3) of the Income Tax Act, 1961 ('the Act' hereinafter)
  • section 26(2) of the Income-tax Act, 1922
  • sec. 199 by Finance Act, 2008
  • section 199 r/w ss. 190
  • FINANCE NO 2 ACT 1996
  • FINANCE ACT 2008
Smart Summary

Factual and Procedural Background

The appeal arises from an order by the Commissioner of Income Tax (Appeals)-27, Mumbai dated 14.09.2011, which allowed the assessee's appeal against her assessment under section 143(3) of the Income Tax Act, 1961 for the assessment year 2008-09. The assessee, an individual and member of an Association of Persons (AOP) named M/s. Hosang Mistry & Co., claimed credit for tax deducted at source (TDS) on interest amounting to Rs. 56.80 lakhs received on 8% RBI saving bonds. These bonds were subscribed in the name of the assessee as the AOP could not subscribe directly, although the funds and beneficial ownership belonged to the AOP. The Assessing Officer held that since the bonds and interest were in the assessee's name, the interest income was taxable in her hands, but allowed TDS credit as claimed. The Commissioner of Income Tax (Appeals) deleted the interest income from the assessee's hands, holding that the beneficial ownership and tax liability lay with the AOP, which had been assessed accordingly. The Revenue challenged this direction only insofar as it related to allowing TDS credit to the assessee, contending it was inconsistent with section 199 of the Act.

Legal Issues Presented

  1. Whether credit for tax deducted at source (TDS) can be allowed to the assessee who is the de jure owner but not the beneficial owner of the securities and interest income.
  2. Whether the TDS credit must be allowed only in the hands of the person in whose hands the corresponding income is assessable under the Income Tax Act.
  3. The applicability and interpretation of amended section 199 and Rule 37BA regarding TDS credit in cases of differing legal and beneficial ownership.

Arguments of the Parties

Revenue's Arguments

  • Credit for TDS should not be allowed to the assessee as she is only the de jure owner and the interest income is assessable in the hands of the AOP.
  • Allowing TDS credit to the assessee violates and is inconsistent with the provisions of section 199 of the Income Tax Act.

Assessee's Arguments

  • In view of the amended law, TDS credit need not be restricted to the person in whose hands the income is assessable; allowance must be made for the peculiar facts of each case.
  • Rule 37BA, introduced w.e.f. 01.04.2009, addresses such circumstances and prior to its introduction there was ambiguity, which should be resolved in favour of the assessee.
  • Allowing TDS credit only to the AOP would lead to futile exercises of refunds and recovery without any real gain, causing unnecessary complications including interest implications.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
CIT v. Sonal Bansal [2008] 167 Taxman 311 (Punj. & Har.) Permissibility of allowing TDS credit to a person other than the one in whose hands income is assessable prior to AY 1997-98 Found not applicable as it concerned assessment years prior to amendment of section 199 w.e.f. AY 1997-98
ITO v. T.G. Veeraraghavan [2007] 108 ITD 288 (Coch.) Similar to Sonal Bansal, related to TDS credit before amendment of section 199 Deemed inapplicable for the same reason as above
Commissioner Of Income-Tax v. Nagri Mills Ltd. [1958] 33 ITR 681 (Bom) Revenue should not dispute matters which are inconsequential; estoppel against law principle Held not to represent good law in view of subsequent apex court decisions and peculiar facts of case
Income Tax Officer v. Atchaiah [1996] 218 ITR 239/84 Taxman 630 (SC) Income to be assessed in the hands of the right person Applied to confirm that interest income is assessable only in the hands of the AOP
Jupudi Kesava Rao v. CIT [1935] 3 ITR 339 (Mad) Interpretation of 'succession' relating to transfer of ownership vs management Distinguished as unrelated to TDS credit issue in this case
Toyo Engg. India Ltd. v. Jt. CIT [2006] 5 SOT 616 (Mum.) Year of allowance of TDS credit when nexus between income and assessment year is unclear Held inapplicable due to different factual circumstances
Escorts Ltd. v. Dy. CIT [2007] 15 SOT 368 (Delhi) Allowing TDS credit where income was not assessable in assessee's hands but tax was deducted Not applicable as facts differ from present case
CIT v. Punjab Financial Corpn [2005] 277 ITR 469/[2006] 152 Taxman 120 (Punj. & Har.) Allowing TDS credit when only part of income is chargeable to tax and balance belongs to joint owner outside Act's purview Distinguished based on facts and assessment year
ITO v. Shri Anupallavi Finance & Investments [2011] 131 ITD 205/9 taxmann.com 163 (Chennai) Clarification on TDS credit availability in relation to timing of income recognition and assessment Applied to emphasize harmony between sections 190, 191, 198, 199 and Rule 37BA
CIT v. Swadeshi Cotton & Flour Mills (P.) Ltd. [1964] 53 ITR 134 (SC) Overruling or limiting precedents inconsistent with law Referenced to show Nagri Mills decision no longer represents good law
New Victoria Mills Co. Ltd. v. Commissioner Of Income-Tax, U.P [1966] 61 ITR 395 (All) Principles of income assessment and ownership Referenced to support correct application of tax law
Escorts (Agents) P. Ltd. v. Commissioner Of Income-Tax, Delhi [1971] 80 ITR 61 (Delhi) Assessment principles and tax credit Referenced in context of TDS credit principles
J.K Woollen Manufacturers Private Ltd. v. Commissioner Of Income-Tax, U.P [1967] 65 ITR 237 (All.) Assessment and ownership principles Referenced for legal background
Mysore Spg. & Mfg. Co. Ltd. v. CIT [1966] 61 ITR 572 (Bom) and CIT v. Mysore Spg. & Mfg. Co. Ltd. [1970] 78 ITR 4 (SC) Assessment and ownership principles Referenced and affirmed by apex court, supporting legal framework
S.M Ziaddin v. Commissioner Of Income-Tax [1993] 203 ITR 136/71 Taxman 580 (Mad) Assessment principles Referenced to support legal analysis

Court's Reasoning and Analysis

The court analyzed the issue by first noting that the Revenue's challenge was confined to the allowance of TDS credit to the assessee, contending it violated section 199. The assessee argued that due to amendments and Rule 37BA, TDS credit could be allowed to persons other than those in whose hands income is assessable, especially given the peculiar facts of the case. The court observed that the interest income is assessable only in the hands of the AOP, the beneficial owner, and the assessee is only the de jure owner. The court emphasized that section 199, as amended by the Finance (No. 2) Act, 1996, and further by the Finance Act, 2008, must be read consistently with its provisos, which permit TDS credit to persons other than the deductee only where the income is assessable in their hands. Rule 37BA, introduced later, provides a mechanism for such cases but does not override the fundamental principle that income and corresponding TDS credit must align. The court rejected the assessee's argument of ambiguity, holding that the law clearly contemplates TDS as a method of tax collection on income assessable to the deductee or owner. The cited precedents supporting the assessee were found inapplicable due to differences in factual and legal context or because they predated the statutory amendments. The court concluded that allowing TDS credit to the assessee, who did not assess the interest income, would violate the statutory scheme and lead to incongruous results.

Holding and Implications

The Revenue's appeal is allowed.

The court reversed the CIT(A)'s direction allowing the assessee to claim TDS credit on interest income assessable only in the hands of the AOP. The direct effect is that the assessee cannot claim TDS credit for the interest income on the bonds, aligning the tax credit with the person in whose hands the income is legally assessable. No new precedent was set; rather, the decision reinforces the consistent application of section 199 and related provisions to prevent misalignment between income assessment and TDS credit.

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    Ito v. Amee Hosang Mistry

    ORDER

    Sanjay Arora, Accountant Member - This is an Appeal by the Revenue agitating the Order by the Commissioner of Income Tax (Appeals)-27, Mumbai ('CIT(A)' for short) dated 14.09.2011, allowing the assessee's appeal contesting its assessment u/s.143(3) of the Income Tax Act, 1961 ('the Act' hereinafter) for the assessment year (A.Y.) 2008-09 vide order dated 29.11.2010.

    2.1 The primary facts of the case, which are simple and undisputed, are that the assessee, an individual, claimed credit for tax deduction of source (TDS) on interest for Rs.56.80 lacs received by her for and on behalf of an Association of Persons (AOP) by the name, M/s. Hosang Mistry & Co., of which she is the member, per her return of income for the year. The interest was on 8% RBI saving bonds issued through Union Bank of India (the issuer of securities). As the said bonds could not be subscribed to by an AOP, resolution was passed by it for investment for and on its behalf by the assessee, who happened to be the only individual member of the AOP. That is, though the funds utilized and invested were of the AOP (PB pages 36-38), the investment/s was in the name of assessee (PB pages 25-32). Tax deducted at source (TDS) certificate was accordingly issued in the name of assessee for Rs. 11,70,080 (PB page 24), who though remitted the full amount of interest (Rs. 56.80 lacs) to the AOP (PB page 16), the de facto owner of the bonds (investment) (PB pages 39-40).

    2.2 In the view of the Assessing Officer (A.O.), the bonds being held by the assessee, also receiving interest thereon, besides claiming TDS in its respect, the interest was liable to be assessed in her hands. Credit for TDS was allowed by him, i.e., as claimed. The ld.CIT (A) directed deletion of the interest on the basis that the assessee is only the de jure owner of both, the bonds and interest thereon, the beneficial interest therein being of the AOP. The interest has been duly assessed in the hands of the AOP; also recovering tax thereon (PB pages 17-23). As regards credit for TDS, the relevant provision (section 199) has since been amended (by Finance (No.2) Act 1996, w.e.f 1/4/1997) to provide for deduction of tax, besides the person in whose hands the corresponding income (i.e., on which credit for TDS is being claimed) is assessable, also qua the owner of the security, deposit or property yielding the said income. Accordingly, it is permissible to allow credit for TDS to the person other than in whose hands the corresponding income is assessable. Decisions in the case of CIT v. Sonal Bansal [2008] 167 Taxman 311 (Punj. &Har.) and ITO v. T.G. Veeraraghavan [2007] 108 ITD 288 (Coch.) were relied upon by him for precedence. Aggrieved, the Revenue is in appeal.

    3. We have heard the parties, and pursued the material on record.

    Findings

    3.1 Our first observation in the matter is that the Revenue has only challenged the direction of the ld. CIT(A) in-so-far as it relates to allowing credit for TDS to the assessee, on the ground that the same is violative of and inconsistent with the provision of sec. 199 of the Act. The assessee, on the other hand, contends that in view of the amended law, insistence on the allowance of the credit (for TDS) to the person in whose hands the corresponding income is assessable, is not appropriate as the same may not always hold, so that an allowance has to be made for the peculiar facts and circumstances of a given case. Rule 37BA, providing for such circumstances, was introduced only w.e.f 01.04.2009, so that prior thereto there was ambiguity in the matter, which therefore is to be considered in favour of the assessee inasmuch as two views were possible. In fact, there has been instances, as in Jupudi Kesava Rao v. CIT [1935] 3 ITR 339 (Mad) , Toyo Engg. India Ltd. v. Jt. CIT [2006] 5 SOT 616 (Mum.) , and Escorts Ltd. v. Dy. CIT [2007] 15 SOT 368 (Delhi) , where credit for TDS has been allowed in the hands of the deductee without the corresponding income being brought to tax in his hands. Finally, if such a view is discountenanced, it would lead to a futile exercise by way of refund of the tax recovered to the AOP, while recovering the same from the assessee; the two being assessed at the same rate of tax (30%), i.e., to no gain or effect. Rather, consequential issues, such as of levy of interest u/s. 234D and withdrawal of interest granted on refund (u/s. 244A) to the assessee, as well as tax implications thereof, would arise, though to no material effect. The decision in the case of Commissioner Of Income-Tax v. Nagri Mills Ltd. [1958] 33 ITR 681 (Bom) is invoked to submit that the Revenue should not dispute matters which are to no consequence.

    3.2 Continuing further, the next thing that needs to be clarified, even though this aspect of the matter is no longer in dispute, is that the interest income under reference is assessable only in hands of AOP. Income is to be assessed in hands of the right person only Income Tax Officer v. Atchaiah [1996] 218 ITR 239/84 Taxman 630 (SC) . Coming to the issue at hand, we find the assessee's case to be based more on convenience than on law, or even on equity. No doubt, the law (sec. 199) stands amended to provide for TDS as being treated as payment of tax for and on behalf of, besides the person from whose income deduction of tax stands made, the owner of the relevant security, deposit or property yielding income. The same, however, has necessarily to be read in consistence with provisos thereto, also inserted simultaneously (by Finance (No.2) Act, 1996, w.e.f 01/04/1997), which, on the contrary, seek to provide credit in the hands of the person, other than the deductee, in whose hands the income, ostensibly of the deductee, is assessable in law, so that in case of joint ownership, credit is to be allowed in proportion to the income. That is, to the same purport and effect as rule 37BA, brought on the statute-book subsequent to the substitution of the sec. 199 by Finance Act, 2008 w.e.f. 01/4/2008. The rule only seeks to; firstly, specify such instances and, two, provide for the mechanism therefor. In fact, the owner of the security (bonds) in the instant case is only the AOP; the assessee being only a de jure owner, with the property in the bonds being admittedly of the AOP.

    3.3 As regards the argument qua ambiguity, the same is completely misplaced. The law, per sections 190 & 191, provides for TDS being only a manner of collection of tax chargeable on the relevant income. Section 199(1) itself lays down that TDS is to be treated as tax paid for and on behalf of the person from whose income tax is deducted. Other categories of persons, being the owner of the relevant property, are also provided. The law thus contemplates of the deductee being the person other than from whose income tax deduction stands made. It, therefore, rather than being a source of ambiguity, serves to eliminate it. The AOP returned the interest income on the bonds, with the assessee excluding the same from her return. Why, we wonder, then, the TDS could not be claimed in the hands of AOP? Tax deduction at source, it is to be appreciated, is only toward the charge of tax u/s. 4 of the Act and, therefore, credit for same would normally be to the person in whose hands the said income is assessable (u/s. 199(1)), and for the relevant year/s (ss. 199(2) & (3) r/w s. 190), being consistent and in accord with the scheme of the Act. That the said person has paid the tax in full on his own, or has not preferred to claim credit in respect of the TDS, is no ground for allowing credit to another. The amendment to sec. 199, as already clarified, is toward mitigating and resolving difficulties that may arise on account of the difference in the ostensible and the real owner of the underlying security (property) and the income thereon, so that on a declaration being made by the deductee, credit for TDS could be claimed by and allowed to the real (de facto) owner, even as the TDS certificate/s is in the name of the ostensible owner (deductee). Recourse to the rule 37BA, introduced subsequently (w.e.f. 01/04/2009), would arise only where the rule denies, as it did in some of the cases cited, credit to the AOP on the ground the TDS certificate being in the name of the assessee (deductee).

    The case law cited

    3.4 The decisions in the case of Sonal Bansal (supra) and T.G. Veeraraghavan (supra) are not applicable, being in respect of assessment year/s prior to AY 1997-98, with effect from which the provision of s. 199 stood amended by Finance (No.2) Act, 1996.

    As regards the decision in the case of Nagri Mills Co. Ltd. (supra), it needs to be borne in mind that there is no estoppel against law, and each year is a separate unit of assessment. The said decision is to be considered as rendered in the peculiar facts of the case, and not as a statement of law inasmuch as the same can no longer be said to represent good law in view of the decision by the apex court in the case of CIT v. Swadeshi Cotton & Flour Mills (P.) Ltd. [1964] 53 ITR 134 . Toward this one may in fact refer to the decisions by the hon'ble courts as in the case of New Victoria Mills Co. Ltd. v. Commissioner Of Income-Tax, U.P [1966] 61 ITR 395 (All) ; Escorts (Agents) P. Ltd. v. Commissioner Of Income-Tax, Delhi. [1971] 80 ITR 61 (Delhi) ; J.K Woollen Manufacturers Private Ltd. v. Commissioner Of Income-Tax, U.P* [1967] 65 ITR 237 (All.) ; Mysore Spg. & Mfg. Co. Ltd. v. CIT [1966] 61 ITR 572 (Bom.) [affirmed by hon'ble apex court in CIT v. Mysore Spg. & Mfg. Co. Ltd. [1970] 78 ITR 4 (SC) ]; and S.M Ziaddin v. Commissioner Of Income-Tax. [1993] 203 ITR 136/71 Taxman 580 (Mad) .

    In the case of Toyo Engg. India Ltd. (supra), the assessee-company, providing technical services as well as executing construction of projects in the areas of fertilizers, petrochemicals, gas and petroleum, etc., was following project completion method for the latter business. The issue that arose was of the year for which credit for TDS was to be allowed. It is in that context it was held by the tribunal that the nexus between the amount of income and the assessment year may not be specific and immediate in all cases, so that it may not be possible to correlate the two at all times. The decision is rendered in the facts of the case and in view of the failure to establish a correlation between the quantum of income and the year of its assessability, the very basis of section 199. The same, thus, has no application in the facts and circumstances of the case. The decision in the case of Escorts Ltd. (supra), again, represents one such instance; the assessee claiming that the income, on which tax stood deducted at source, was not assessable under the Act. The Revenue, however, having collected the tax at source, duly evidenced by a certificate in its respect, could not deny credit for the same, i.e., the TDS in its respect. This forms the basis of this decision, and which, therefore, clearly has not application in the instant case. To the same purport and effect and, therefore, fate as to the reliance thereon, is the decision in the case of CIT v. Punjab Financial Corpn. [2005] 277 ITR 469/[2006] 152 Taxman 120 (Punj.&Har.) , wherein only a part of the income on which tax stood deducted was chargeable to tax; the balance falling to the share of the State Government, the joint owner (in a defined ratio) of the relevant security, and thus outside the purview of the Act. The assessment year involved was AY 1978-79. It was held that credit for the TDS thereon could not be denied, which would in any case have to be refunded, and to the assessee-deductee itself.

    We may at this stage refer to the decision by the tribunal in the case of ITO v. Shri Anupallavi Finance & Investments [2011] 131 ITD 205/9 taxmann.com 163 (Chennai) , wherein, adverting to sections 190, 191, 198 and 199 of the Act, it was held that the deduction of tax at source does not necessarily, or is required to, march alongside the corresponding income, recognition of which by the recipient could be either on accrual or on receipt basis. The tax liability, however, would arise only on it becoming assessable. It is in view of and to address this mismatch in time between the TDS and the accrual and/or receipt of the corresponding income that section 199 r/w ss. 190 and 191 clarifies that the credit for TDS shall be available for the year/s in which the corresponding income is assessable. Further, there was complete harmony between the erstwhile section 199 and section 199 as it stands after substitution by Finance Act, 2008 w.e.f. 01.04.2008 read with r. 37BA.

    In Jupudi Kesava Rao (supra), the issue involved was whether the word 'succession' in section 26(2) of the Income-tax Act, 1922 would include 'transfer' where the business devolves on the coparcener of a Hindu Undivided Family (HUF) by survivorship. The hon'ble court held that section 26(2) concerns the transfer of ownership and not merely of management. There was accordingly no succession when the petitioner-coparcener becomes the owner of the HUF business. We see no parity or correspondence between the said decision and the issue involved in the instant case, i.e., whether the credit for TDS is to be allowed in the hands of the titular holder or the beneficial owner, in whose hands the corresponding income is in law assessable, having in fact been returned and assessed only there-under.

    4. In the result, the Revenue's appeal is allowed.

    SUNIL

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    Ito v. Amee Hosang Mistry
    (Nov 20, 2013)