IN THE HIGH COURT OF DELHI AT NEW DELHI 
 . 
         ITA 110/2010  
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 COMMISSIONER OF INCOME TAX                                 ..... 
 Appellant 
 Through :        Mr Sanjeev Sabharwal 
 . 
 versus 
 . 
 LEAR AUTOMOTIVE INDIA LTD                                ..... Respondent 
 Through :        None 
 . 
 . 
 . 
 CORAM: 
 HON'BLE MR JUSTICE BADAR DURREZ AHMED 
 HON'BLE MR JUSTICE SIDDHARTH MRIDUL 
 . 
 O R D E R 
                                      05.02.2010 
 This appeal relates to the assessment year 2001-2002 and arises out of 
 the Tribunal?s order dated 19.06.2009.  The issue was with regard to the 
 allowance of credit for TDS mistakenly deducted by Mahindra and Mahindra Limited 
 while making the payment to the assessee amounting to Rs 25,57,500/-.  The 
 Tribunal has examined the matter in detail and has affirmed the views taken by 
 the Commissioner of Income Tax (Appeals).  The Tribunal held as under:- 
 5.       Having heard the ld. DR and having perused the material on record, we 
 find that there is no error in the order of the ld. CIT(A).  Undisputedly, the 
 assessee company earned income of Rs?4,65,00,000/- only by way of Engineering 
 fees.  Another amount of Rs 4,65,00,000/- had been received as tooling advance. 
 This latter amount was to be paid to the vendors of M/s. Mahindra and Mahindra 
 . 
 . 
 Ltd.  This payment was a reimbursement.  That being so, it could not be 
 considered as the income of the assessee company.  It was by sheer mistake that 
 M/s. Mahindra and Mahindra Ltd. has deducted TDS on the whole amount of Rs 
 9,30,00,000/-.  The TDS amount was thus in excess of the assessable tax on the 
 payment made by M/s. Mahindra and Mahindra Ltd. to the assessee company.  This 
 had to be refunded, as held by the Hon?ble Supreme Court in the case of ?Sandvik 
 India LTd. v. CIT? 280 ITR 643(SC).  This position has duly been considered and 
 rightly so, by the ld. CIT(A) in the impugned order.  If wrong tax has been 
 paid, it is of necessity to be returned, lest the department be charged of 
 unjust enrichment. 
 6.       In view of the above, the ld. CIT(A) was right in directing the AO to 
 give credit of the whole of the amount of Rs 51,15,000/- of TDS against the tax 
 assessable in the year.  The department is not justified in contending that the 
 income of Rs 4,65,00,000/- corresponding to the TDS with regard to which the AO 
 has been directed to allow credit, was not offered to tax.  As noted, this 
 amount had been received by the assessee company as tooling advance and it was 
 paid to the vendors of M/s. Mahindra and Mahindra as a reimbursement.  This 
 being so, the amount of Rs?4,65,00,000/- received by the assessee company as 
 tooling advance and paid as reimbursement to the vendors of M/s. Mahindra and 
 Mahindra cannot at all be termed as the assessee?s income.? 
 . 
 We do not find any cause to interfere with the said findings of the 
 Tribunal.  No substantial question of law arises for our consideration. 
 The appeal is dismissed. 
 . 
 BADAR DURREZ AHMED, J 
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 . 
 . 
 . 
 SIDDHARTH MRIDUL, J 
 FEBRUARY 05, 2010 
 SR 
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