2011 (7) TMI 956 - ITAT MUMBAI

Short TDS due to deduction of TDS u/s 192 instead of 194J - A.O. analyzing the agreements entered by the assessee firm with the said consultants came to a conclusion that there is no employee-employer relationship and assessee should have deducted tax under section 194J and since assessee has not deducted the tax, the amounts claimed of Rs. 26,75,535/- was to be disallowed under section 40(a)(ia) - Assessee has employed about 18 consultants with whom it entered into agreements for a period of two years renewable further at the option of either parties and they were paid fixed amounts without any share in the profit - It is also not the case that assessee has not deducted any amount. Assessee has indeed deducted tax under section 192 and so we are of the opinion that provisions of section 40(a)(ia) also do not apply as the said provision can be invoked only in the event of non deduction of tax but not for lesser deduction of tax - Appeal is dismissed