Sidhesh Mohan Raikar Vs DCIT (ITAT Pune)
Rule 37BA can’t override Section 5A: Goa resident under Portuguese Civil Code entitled to full TDS credit — ITAT Pune
Pune Tribunal allowed Assessee’s appeal & directed grant of full TDS credit of ₹45.28 lakh, rejecting proportionate restriction applied by CPC u/s 154 by invoking Rule 37BA. Tribunal held that Assessee, being a resident of Goa governed by Portuguese Civil Code, 1860, is squarely covered by s.5A, under which income (other than salary) is required to be apportioned equally between spouses, but the Act does not mandate apportionment of TDS in such cases. Tribunal noted that salary TDS of ₹35.22 lakh is fully assessable in Assessee’s hands, while TDS of ₹10.36 lakh on income from other sources was deducted & reflected under Assessee’s PAN, wife having not claimed any part of such TDS. Tribunal categorically held that Rule 37BA has no application to s.5A cases, as it does not contemplate community property regime under Portuguese Civil Code. Accordingly, CPC’s restriction of TDS credit was held unsustainable in law, AO was directed to allow entire TDS as claimed, and Assessee’s appeal was allowed in full
FULL TEXT OF THE ORDER OF ITAT PUNE
The captioned appeal at the instance of assessee pertaining to A.Y. 2023-24 is directed against the order dated 21.11.2024 framed by Addl/JCIT(A)-3, Bengaluru arising out of Rectification Order dated 25.07.2024 passed u/s.154 of the Income Tax Act, 1961.
