Assessee eligible for refund of TDS deducted on off shore supply contracts not taxable in India

ABB AB C/o ABB India Limited Vs DCIT (ITAT Bangalore)

Assessing Officer first has to examine whether the amounts received are off shore supply contracts by the assessee were received outside the country. The learned Authorized Representative submitted that the assessee company has offered the income on on shore supply contracts. Since, the off shore supply contracts are not taxable in India but TDS was deducted in India therefore assessee is eligible for refund of TDS Credit. We considering the facts, submissions and judicial decisions are of view that the AO first has to quantify and examine the refund. Accordingly, in the interest of Justice, we restore the disputed issue for limited purpose to the file of Assessing Officer to examine and verify the correctness of claim and to consider the ratio of judicial decisions. And ,we allow the grounds of appeal of assessee for statistical purposes.

FULL TEXT OF THE ITAT JUDGEMENT 

The appeals are filed by the assessee for the Assessment Year 2012-13 against the order of Commissioner of Income Tax (Appeals)-12, Bangalore passed u/s.143(3) and u/s 250 of the Income Tax Act, 1961 (the Act) and for the A.Y. 2013-14,appeal filed against the final assessment order passed under Section 143(3) r.w.s. 92CA and 144C(5) of the Act in pursuance to the directions of the Dispute Resolution Panel (DRP). For the sake of convenience, we shall take up the appeal for the Assessment Year 2012-13 and the facts narrated therein.

2. At the time of hearing, we find a letter filed by the ld. AR of the assessee  along with copy of Resolution of CBDT under Section 90 of the Act dt.3.12.2019.We shall consider it appropriate to refer to the letter dt.17.08.2020 and the CBDT resolution dt.3.12.2019 which is read as under :

In view of the above, the observations made by the Assessing Officer in the subject assessment year have only academic relevance and therefore, the Appellant wishes not to press ground Nos. 3-7 in the subject appeal. The Appellant however reserves liberty to contest the issue in any other assessment year, if the same were to arise.

Yours faithfully,
for King & Partidge

(Tanmayee Rajkumar)
Advocate

No 480/02/246-FTD.I/827
Government of India
Ministry of Finance
Department of Revenue
Central Board of Direct Taxes
Foreign Tax & Tax Research-I
Office of the Joint Secretary and Competent Authority of India

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appeal Nos.3 to 7 are treated as dismissed as withdrawn and the LdAR has restricted his arguments to the extent of ground of appeal No.8 as under :

“ 8. Short grant of TDS

8.1 That the A.O/CIT(A) erred in granting TDS credit only to the extent of Rs.1,71,15,646 as against Rs.30,21,93,607 as claimed in the Return of Income, resulting in short grant of credit amounting toRs.28,50,77,961.

8.2  That the A.O/CIT(A) erred on facts and in law in applying Section 199 of the Act and Rule 37BA of the Income Tax Rules, 1962 while granting TDS credit.”

3. The Brief facts of the case are that the assessee ABB AB, a tax resident of Sweden within the meaning of DTAA between India and Sweden. The assessee is engaged in power and automation technologies for utility and industry customers and filed the return of income on 29.11.2012 for the Assessment Year 2012-13 disclosing total income of Rs160,694,185/-and claimed a refund of Rs.28,56,25,430/-.Subsequently, the case was selected for scrutiny and Notice under Section 143(2) of the Act was issued. In the assessment proceedings, the Assessing Officer has accepted the returned income of Rs.160, 694,185/- but allowed the TDS credit to the extent of Rs.1,71,15,646/- and passed order under Section 143(3) of the Act dt.31.03.2016. Aggrieved by the order, the assessee has filed an appeal with the CIT (Appeals). The CIT (Appeals) dealt on the Ground of appeal No.7 and observed at page 18 para 9 of the order as under :

9. SHORT GRANT OF TDS (Ground 7)

The appellant is aggrieved that the AC) has granted TDS credit only to the tune of Rs. 1 7,1 15,646 as against Rs. 302,193,607 as claimed in the return of income. The appellant submitted as under;

• the payment received by the Company for offshore supply contract is not .taxable in India since title in the equipment were passed on by the Company to PGCIL.outside India and payments towards offshore supply were received by the Company’putside India (as submitted in earlier year).
• the provisions of section 199 of the Act and Rule 37BA would not be applicable in the cases where the underlying payment is not taxable in India.
• Rule 37BA is applicable only when an income is subject to tax in India but has not been offered to tax in the current year, the taxes deducted thereon stand.s deferred.
• If no income is subject to tax, the refund of taxes deducted shall have to be granted.

9A. FINDINGS

As already held above, the source of income for off shore supply contract is in India and thus the receipts are taxable in India. The assessing officer examined the invoices raised during the year under consideration and found them to be relating to advances and not for supply of equipment. The first supply of equipment was through the invoice date 15.03.2013 relevant to AY 13-14. She has correctly applied the provisions of section 1.99 of the A.ct to conclude that credit for the taxes deducted at source can be given only when the corresponding income is offered to tax. There is no force in the argument of the appellant. Accordingly, these objections are rejected and this ground is dismissed.

Finally, the CIT (Appeals) has dismissed the appeal. Aggrieved by the order of CIT (Appeals), the assessee has filed an appeal before the Tribunal.

4. At the time of hearing, the learned Authorized Representative referred to the letter dt.17.8.2020 and the CBDT Resolution under Section 90 of the Income Tax Act, 1961 and submitted the India-Sweden DTAA Convention and due to the MAP Resolution, the receipts under the Off shore supply contract and on shore supply contract are not chargeable to tax and hence the Ground of appeal Nos.3 to7 are dismissed as withdrawn. Further, the LdAR made submissions on short credit of TDS were the assessing officer has granted TDS credit to the extent of RS. 17,115,646/- and there is short TDS credit of Rs 285,077,961/-.The AO is of the view that as per provisions of Section 199 of the Act r.w. Rule 37B of I.T. Rules,1962, credit for tax deducted will be given only when the corresponding income was offered for taxation. Hence, the assessing officer has restricted the claim of TDS to the extent of advances received from Power Grid Corporation of India Limited (PGCIL) and there is no income out of off shore supply equipment assessable in the current year. The learned Authorized Representative emphasized that the payments received by the assessee company for off shore supply contract is not applied in India as the title in the equipment has passed on to the company by the PGCIL outside India and the payments for off shore supply was received by the company outside India. The ld. AR submitted that the provision of Section 199 of the Act and Rule 37BA of IT Rules will not be applicable, where the payments are not taxable in India and supported his arguments relying on the judicial decisions and paper book and prayed for grant of Short TDS credit. Contra, the learned Departmental Representative submitted that the credit for TDS has to be given in the year in which the income was offered for taxation and supported the orders of the lower authorities. Further the ld. DR submitted that the MAP Resolution of CBDT dt.3.12.2019 pertains to Assessment Year 2013-14 and 2014­15, whereas the present Assessment Year is 2012-13 is not covered under MAP and filled submissions.

5. We heard the rival contentions and perused the material on record. The sole matrix of the disputed issue as envisaged by the ld. AR that the Assessing Officer has denied the TDS credit claimed by the assessee, whereas the assessee in the return of Income has claimed TDS credit of Rs.30,21,93,607. But the Assessing Officer has granted credit to the extent of Rs.1,71,15,646/- which resulted in short TDS credit of Rs.28,50,77,961/-.The LdAR submitted that the provisions of Section 199 of the Act are not applicable, as the payments received by the assessee for off shore supply contract is not taxable in India as the title in the equipment was passed on by the assessee company to PGCIL outside India and the payments pertaining to Off shore supply were received by the company outside India. The provisions of Section 199 of the Act applicable for Assessment Year 2012-13 are as under :

199. Credit for tax deducted – (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 security, or of the depositor or of the owner of property or of the unit-holder, or of the shareholder, as the case may be, and credit shall be given to him for the amount so deducted on the production of the certificate furnished under section 203 in the assessment made under this Act for the assessment year for which such income is assessable.

The Rule 37BA of the I.T. Rules, 1962 read as under :

37BA. (1) Credit for tax deducted at source and paid to the Central Government in accordance with the provisions of Chapter XVII, shall be given to the person to whom payment has been made or credit has been given (hereinafter referred to as deductee) on the basis of information relating to deduction of tax furnished by the deductor to the income-tax authority or the person authorised by such authority.

(2) [(i) Where under any provisions of the Act, the whole or any part of the income on which tax has been deducted at source is assessable in the hands of a person other than the deductee, credit for the whole or any part of the tax deducted at source, as the case may be, shall be given to the other person and not to the deductee :

Provided that the deductee files a declaration with the deductor and the deductor reports the tax deduction in the name of the other person in the information relating to deduction of tax referred to in sub-rule (1).]

(ii) The declaration filed by the deductee under clause (i) shall contain the name, address, permanent account number of the person to whom credit is to be given, payment or credit in relation to which credit is to be given and reasons for giving credit to such person.

(iii) The deductor shall issue the certificate for deduction of tax at source in the name of the person in whose name credit is shown in the information relating to deduction of tax referred to in sub-rule (1) and shall keep the declaration in his safe custody.

(3) (i) Credit for tax deducted at source and paid to the Central Government, shall be given for the assessment year for which such income is assessable.

(ii) Where tax has been deducted at source and paid to the Central Government and the income is assessable over a number of years, credit for tax deducted at source shall be allowed across those years in the same proportion in which the income is assessable to tax.

6. The LdAR referred to the provisions prior and post amendment and submitted that TDS credit has to be granted to the assessee. The Assessing Officer is of the view that the income is subject to tax in India and since it is not offered to tax in the year under consideration, TDS credit has to be deferred but the LdAR emphasized that in the cases, where no income is subject to tax in India, and TDS deducted on such income has to be refunded .And the assessee company is entitled to TDS credit, where the taxes paid to PGCIL in relation to off shore supply will result in refund. The ld. AR relied on the decision of co-ordinate bench of the Tribunal in the case of Arvind Murjani Brands (P) Ltd. Vs. ITO 21 taxmann.com 131 (Mum) were the provisions of Section 199 of the Act and Rule 37BA of the I.T. Rules, 1962 are dealt. We consider it appropriate to refer to the observations of the co-ordinate bench of this Tribunal at Para 11 to 15 as under :

“ 11. A bare perusal of section 199 brings out that deduction of tax at source made in accordance with the earlier sections of this Chapter and paid to the Central Government shall be treated as payment of tax on behalf of the person from whose income the deduction was made. The second component of this provision is that the credit shall be given to the payee of income for the amount so deducted on the production of TDS certificate “for the assessment year for which such sum is assessable”. On a close scrutiny of this provision it is borne out that the amount of tax deducted at source by the payer is treated as `payment of tax on behalf of the payee’ to whom amount in the nature of `income’ is paid. Secondly, the `credit for such tax’ deducted and paid `is allowed for the assessment year for which such sum is assessable’. Thus it can be seen that primarily the deduction of tax at source is made by the payer when an amount in the nature of income is paid to the payee. Since such amount of tax is treated as paid on behalf of payee, naturally the credit for such tax can be given only to the payee. Further since the deduction of tax at source is contemplated only from the amount credited/paid to the payee in the nature of income, the credit for such tax can be allowed simultaneous with the chargeability of such amount in the hands of payee.

12. On a conjoint reading of various sections as discussed above it is vivid that the obligation for deduction of tax at source falls on payer when he credits the account of payee or makes payment for a sum which is in the nature of income in the hands of payee. Section 199 is a natural consequence of the earlier sections inasmuch as it provides for allowing credit for the tax which was deducted at source by the payer on the amount credited/received by the payee in the nature of income. If the amount received by the payee is not in the M/s.Arvind Murjani Brands Pvt.Ltd. nature of any income or does not contain some element of income, there cannot be any question of deduction of tax at source. It is axiomatic that the deduction of tax at source is directly connected with the payment in the nature of income to the payee and as such the credit for tax so deducted is allowed for the assessment year for which such income is assessable in the hands of the payee. The common thread running through these provisions is the chargeability of the amount as income in the hands of the payee on which tax is deducted at source. Thus chargeability of amount paid in the hands of payee is sine qua non for magnetizing the provisions of tax withholding. It follows that in order to attract the provisions for withholding of tax, the amount must be received by the recipient in the nature of income and not as an obligation. When the amount of income is directly paid by the payer to the payee, such amount is liable for deduction of tax at source if it is of the nature as specified in the relevant provision concerning with the deduction of tax at source. If however the amount is paid by the payer to the payee not directly but indirectly, that is, through the medium of some other person, then such other person receives the amount as an obligation and not as income in his hands. Neither the amount received by such middleman can be considered as income in his hands nor there can be any requirement under law fastening some sort of tax liability on him towards such transaction. The said middleman does not earn any income from the payer nor incurs any expenditure by mediating in the transaction between the payer and receiver of income. From the earlier provisions it has been noticed that deduction of tax at source is warranted when any amount in the nature of income is paid or credited by the payer to the payee. Unless the amount so paid assumes the character of income, there can be no deduction of tax at source. In the case of transaction of payment of income routed through some middleman, its chargeability can occur only once and that too in the hands of the person ultimately receiving the amount in his own right. The prescription of the Income-tax Act is manifest that as the income can be taxed M/s.Arvind Murjani Brands Pvt.Ltd. only once in case of such routed transaction, deduction of tax at source is also warranted only once. If such transaction has resulted in to deduction of tax at source twice, naturally the situation needs to be set right.

13. The extant is a case of routed transaction. The landlords did not intend to rent out their property to Guys & Gals who were the eventual user of the property. Since Guys & Gals happened to be franchisee of a brand belonging to the assessee, it had to intervene by facilitating the franchisee to acquire the premises on rent from the landlords through their direct involvement. The franchisee was under an obligation to deduct tax at source on the rent paid by it which it rightly did by making payment to the assessee after due deduction of tax at source. The assessee passed over the gross amount of rent to M/s Arvind Brands Limited, its sister concern for its onward transmission to the real landlords. M/s Arvind Brands Ltd. paid the amount of rent to the landlords after due deduction of tax at source. Obviously the amount received by the assessee was not in the nature of income. In this case the transaction of income is eventually between Guys & Gals and the landlords. The Assessing Officer has duly accepted this point of view by rightly not taxing the amount in assessee’s hands. Thus it follows that the question of deduction of tax at source on the amount passing through hands could have arisen only once and not on two or more occasions. Deduction of tax at source was made twice in the instant case simply with a view to comply with the provisions of deduction of tax at source from rent u/s 194-I. It means that one income has suffered deduction of tax at source twice. We have seen supra that all the relevant sections requiring deduction of tax at source pre-suppose that the amount is paid by the payer in nature of income to the payee so as to attract the deduction of tax at source. As in the instant case the event of income passing over to the payee is only once, the deduction of tax at source could have also been made only once. In order to comply with the requisite provisions, Guys & Gals deducted tax at source M/s.Arvind Murjani Brands Pvt.Ltd. when they made the payment to the assessee-company. It was so obliged because they had not entered into any direct agreement with the landlords for taking the payment of rent. When M/s Arvind Brands Limited paid over the rent to the landlords they also deducted the tax at source at the appropriate rate. Thus though there is one transaction resulting into income but deduction of tax at source has been made twice to facilitate the compliance with the requisite provisions. Guys & Gals could not have deducted tax at source in favour of the landlords as they had entered into agreement only with the assessee-company. In such a case they could have neither deducted tax at source in favour of the landlords nor avoided the deduction of tax at source on rent paid by them u/s 194-I. Under such circumstances they treated the assessee-company as landlord for the purpose of deduction of tax at source albeit the rental income in fact belonged to the landlords.

14. Section 199 has been enshrined in the Act to give a logical conclusion to the earlier sections under which tax is deducted at source from various items of income as enumerated therein so that credit for the tax deducted at source is allowed to the person while assessing the income in the hands of the payee. It is of paramount importance to note that this section recognizes a very important position of law, that the tax deducted at source is “treated as a payment of tax on behalf of the person from whose income the deduction was made” and consequently “credit shall be given to him for the amount so deducted.” So the role of section 199 is confined to allowing the credit for the tax deducted at source to the payee of the amount and none else. Thus it is evident that section 199 only deals with allowing of the credit for the tax deducted at source and not with the disallowing of such credit. It does not encompass within its purview the question for determination as to whether the credit for tax deducted at source should at all be allowed or disallowed. This enabling provision cannot be employed to disable the allowing of credit for the tax deducted at source from M/s.Arvind Murjani Brands Pvt.Ltd.

the payment made to the assessee in the nature of income. Evidently, it can never be contemplated nor it can be the case of the Revenue that the no credit for the amount of tax deducted at source should be allowed in a given situation. The reason being that the amount of tax deducted at source has to be necessarily adjusted against the tax liability arising out of payment received in the nature of income by the payee. Till the time such adjustment is made, the seisin of the Revenue over such amount collected by way of deduction of tax at source is only in the nature of an obligation. If the amount of tax due on such income, in the hands of recipient, turns out to be lower than the amount of tax deducted at source, the Revenue is obliged to refund the excess. The position is, therefore, crystal clear that the amount of tax deducted at source has to be necessarily allowed credit somewhere. It cannot be a case that the amount of such tax deducted and paid to the exchequer is not to be refunded, if the tax due on the amount of income received is either lower than the amount of tax deducted or there does not exist any liability to tax in respect of the amount received. We may fruitfully refer to Article 265 of the Constitution of India, which provides that :` No tax shall be levied or collected except by authority of law.’ From the above discussion it follows that the amount of tax deducted at source needs to be adjusted against some tax liability of the payee and in case there is no such liability, it has to be refunded to payee because of the very mandate of section 199 as per which such amount is `treated as a payment of tax on behalf of the person from whose income the deduction was made’ that is the payee.

15. Thus it emerges that the major function of section 199 is to allow credit for tax deducted at source to the payee. The modus operandi for the discharge of such function is in-built in the section itself. It is done by finding out the year in which the income on which tax was deducted, is assessable to tax. It is quite natural that the credit for tax deducted at source from the amount of income M/s.Arvind Murjani Brands Pvt.Ltd. should be allowed simultaneous with the event of chargeability of such income to tax. So once the year of chargeability of the amount received in the nature of income is determined, the credit for tax deducted has to be allowed to the payee in such year. This is the only mandate of section 199. This section basically deals with the question of determination of the year in which the credit for the tax deducted at source should be allowed. The object of this section is to avert the situation of claiming credit of the tax deducted at source in the year of assessee’s choice. That is why it has been made clear that the credit should be allowed in the year in which the income on which such tax has been deducted, is assessable so as to make it explicitly clear that the assessee may not claim the credit for such tax deducted at source in an earlier or a later year. Once the question is decided that the income is chargeable in a particular year in the hands of the payee, then the scope of section extinguishes inasmuch as there remains no doubt in allowing credit for such tax to the payee in the relevant year. After that there cannot be any dispute that the credit should have been allowed in a later or an earlier year. It is for this reason that when the question has been determined that the income has accrued or received in one year then it should be assessed in that year and credit for tax deducted at source should be allowed in that year alone. A problem may arise in giving effect to the prescription of section 199 (that is, allowing credit of tax deducted at source to the payee) if the question is determined that the amount received is not at all an income assessable to tax either in the year of receipt or in any earlier or later year. Such problem has arisen in the present case. It is noticed that the amount of rent has suffered deduction of tax at source at two stages but income is chargeable to tax only once and that too not in the hands of the assessee. The Revenue has received the tax due on such rent by way of deduction of tax at source made by M/s Arvind Brands Limited, who eventually paid the net amount of rent to the landlords after due deduction of tax at source. The AO has unequivocally held that the amount is not chargeable to tax in the hands of M/s.Arvind Murjani Brands Pvt.Ltd. the assessee. The finding of the AO is not that such receipt is liable to tax in the hands of the assessee in a later or an earlier year. Rather it is that the amount received by the assessee is not at all chargeable to tax either in the current year or in an earlier or a later year. If the AO had held that the amount received by the assessee as chargeable to tax in a later or an earlier year, then of course, the assessee could not have validly claimed the credit for tax deducted at source against its income for the current year. As the amount on which tax was deducted at source is not at all chargeable to tax, then the command of section 199 will have to be harmoniously and pragmatically read as providing for allowing credit for the tax deducted at source in the year of the receipt of the amount, on which tax was deducted at source. If the view point canvassed by the Revenue is accepted and the assessee is not allowed credit for the tax deducted at source, an arduous situation will arise. The amount of tax deducted at source will remain in limbo . The Revenue will never be in position to allow credit for such tax because the amount is not chargeable to tax in the hands of the assessee and it cannot retain such amount with it in contravention of Article 265 of the Constitution of India. To circumvent such a situation, the only possible solution is to allow credit for the tax deducted at source to the payee of the amount in the year for which such tax was deducted and the amount was paid after deduction of tax at source. As in the present case the assessee received the amount after deduction of tax at source from Guys & Gals and such amount is not admittedly chargeable to tax in its hands, we hold that the credit for the tax deducted at source should be allowed in the instant year. We, therefore, set aside the impugned order on this issue and direct that the credit for the tax deducted at source amounting to Rs.8,77,881 be allowed to the assessee in the previous year relevant to the assessment year under consideration.”

Further the decision of ITAT, Vizag Bench in the case of ACIT Vs. Peddu Srinivasa Rao in ITA No.324/Vizag/2009 Dt.3.3.2011 and the observations at page 5 Para 8 to 10 are read as under :

“ 8. We have carefully perused the provisions of section 199 of the Act and according to the pre-amended provisions of section 199, the credit of deduction made in accordance with the relevant provisions of this chapter and paid to the Central Government, shall be given for the amount so deducted on the production of the certificate furnished u/s 203 for the assessment made under this Act for the assessment year for which such income is assessable. But in the amended provisions the words “for the assessment year for which such income is assessable” has been omitted. Meaning thereby, that the legislature was quite conscious about the facts and hardships faced by some assessees, while making the amendments in section 199 and in amended provisions nothing has been stated about the year in which the credit of TDS is to be claimed. As per amended provisions of section 199, in sub­section 1, it has been stated that any deductions 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. Therefore, as per the amended provisions, once the TDS was deducted, a credit of the same to be given to the assessees, irrespective of the year to which it relates. The preamended and the amended provisions of section 199 are extracted hereunder:

“Section 199: Credit for tax deducted – (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 security, or depositor or owner of property or of unit-holder or of the shareholder, as the case may be, and credit shall be given to him for the amount so deducted on the production of the certificate furnished under section 203 in the assessment made under this Act for the assessment year for which such income is assessable:

(3) The Board may, for the purposes of giving credit 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.

Section 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 security, or of the depositor or of the owner of property or of the unit-holder, or of the shareholder, as the case may be.

(2) Any sum referred to in sub-section (1A) of section 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 tax has been made.”

9. In the light of these amendments, we have also examined the judgement of this Hyderabad Tribunal in the case of Progressive Constructions Limited Vs. JCIT ITA 482 and 557/Hyd/2001 and the order of the Tribunal of Chennai Bench in the case of Supreme Renewable Energy Limited Vs. ITO 32 DTR 140 and Toyo Engineering Limited 5 SOT 616 in which the Tribunal has taken a consistent view that the credit of TDS should be given in the year of receipt. The facts of the case of M/s. Progressive Constructions Ltd. (supra) and Toyo Engineering India Limited (supra) are almost similar to that of the present case. In the case of Supreme Renewable Energy Limited (supra), the Tribunal has held that when the interest income is incidental to the acquisition and installation of an asset and is not directly liable for tax, assessee is entitled for the credit of TDS from the interest income which has been duly received by the Government. The relevant observation of the Tribunal are extracted hereunder:

“The deposit on which interest was earned by the assessee is mandatory as per statutory requirement. Therefore, the interest income earned on the deposit is not out of surplus fund of the assessee but due to the statutory requirement under which the deposit was made for availing the credit facility of installation of machinery. When the interest income is in the nature of capital then the assessee has rightly deducted the same from the cost of the assets and while doing so the assessee has offered the said income though capitalized for assessment. When the interest income is not directly liable for tax as the same is incidental in the acquisition and installation of the asset then the tax deducted at source from the interest income which was duly received by the Government shall be refunded to the assessee or the assessee is entitled for the credit of the same. The Government cannot benefit itself by taking advantage of legal technicalities. Even otherwise, once the income receipt has been deducted from the cost of machinery to be installed the assessee has indirectly offered the same for assessment and taxation because due to the reduction of cost of the machinery and depreciation on the said machinery would be lesser and the net result of this would be offering the same income otherwise. When a particular income is received by the assessee after deduction of tax at source and the said TDS has been duly deposited with the Government and the assessee has received the requisite certificate to this effect, then on production of the said certificate the assessee becomes entitled for the credit of TDS even if the assessee has not directly offered the said income for tax as the assessee considered the same was not liable to tax. When the assessee has earned interest on deposit mandatory for acquisition on installation of machinery then the interest was earned by the assessee and is directly incidental to the acquisition in respect of machinery and therefore the same has been rightly reduced from the cost of the machinery. In this way the assessee has indirectly disclosed income and has offered for assessment. Even if the income earned by the assessee has not been offered for tax being not liable for tax, the assessee is entitled for credit of TDS made in respect of that income. Accordingly, assessee is entitled for credit of TDS relating to interest income.”

10. From a careful perusal of the legal propositions laid down through the aforesaid orders by the Tribunal and the relevant provisions of the Act, we are of the view that once the TDS was deducted and paid to the Central Government, a credit of the same should be given to the assessees in order to avoid all sorts of complications in the year of deduction of the TDS. Therefore, we find no infirmity in the order of the CIT(A) who has rightly directed the A.O. to allow the credit of the TDS in the impugned assessment year. Accordingly, the order of the CIT(A) is confirmed.”

We considering the submissions of the learned Authorized Representative, observations of the Assessing Officer and appellate authority on this disputed issue and the judicial decisions referred above are of the view that the Assessing Officer first has to examine whether the amounts received are off shore supply contracts by the assessee were received outside the country. The learned Authorized Representative submitted that the assessee company has offered the income on on shore supply contracts. Since, the off shore supply contracts are not taxable in India but TDS was deducted in India therefore assessee is eligible for refund of TDS Credit. We considering the facts, submissions and judicial decisions are of view that the AO first has to quantify and examine the refund. Accordingly, in the interest of Justice, we restore the disputed issue for limited purpose to the file of Assessing Officer to examine and verify the correctness of claim and to consider the ratio of judicial decisions. And ,we allow the grounds of appeal of assessee for statistical purposes.

7. Similarly for the Assessment Year 2013-14, the assessee has invoked MAP and CBDT resolution dt 3-9-2019 is applicable. The assessee has raised ground of appeal in respect of short deduction of TDS, which is similar to the Assessment Year 2012-13.The decision in IT(IT)A No.464/Bang/2018 of Asst Year 2012-13 shall equally applicable to this assessment also and Accordingly remit the disputed issue for limited purpose to the file of Assessing Officer for examination and verification with similar directions and allow the grounds of appeal of the assessee for statistical purposes.

8. In the result, the assessee appeals for A.Ys 2012-13 and 2013-14 are partly allowed for statistical purposes.

Pronounced in the open court on the date mentioned on the caption page.