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2013 (5) TMI 557 - AT - Income TaxPerformance incentive - non deduction of TDS - whether be considered as part of salary for the purpose of computation of exemption u/s 10(13A) in respect of HRA paid to the employees - CIT(A) allowed the claim by deleting the demand raised u/s 201(1) - Held that:- Considering the principle laid down consistently by the Jurisdictional High Court in the case of Nestle India Ltd (2000 (1) TMI 35 - DELHI High Court), Delhi Public School (2011 (10) TMI 17 - DELHI HIGH COURT) and Maruti Udyog Ltd.(2011 (12) TMI 103 - DELHI HIGH COURT) & in the facts of the present case where no case has been made out by the Revenue to show that the assessee has acted dishonestly and/or in a mala fide manner. The impugned order deserves to be upheld. The fact that there is a short deduction of tax in the present case where it was linked with the performance incentive paid to the employee on the basis of achievement of fixed percentage, the estimated TDS deducted in a bona fide manner as per the settled legal position cannot be faulted with. There being no allegation of even an iota of mala fide on the part of the assessee, the relief granted by the CIT(A) though on different reasoning is sustained. In favour of assessee. Non deduction of TDS on link charges as technical services u/s 194J - demand raised u/s 201(1)/201(1A) - CIT(A) allowed the claim by deleting the demand raised u/s 201(1) - Held that:- Admittedly the payments are made to MTNL & BSNL etc. for providing space for transmission of date for carriage of voice and for availing the service of inter-communication, port access for which as per the settled uncontested legal position is that no human intervention is necessary. Nothing has been placed on behalf of the department to show that the facts have not been correctly appreciated in the case of the assessee. The lack of human intervention in making use of the service provided by BSNL and MTNL etc domains and in the fact as they stated the finding cannot be faulted with. Accordingly, being satisfied by the reasoning and finding arrived in the impugned order, ground of the department is also dismissed. In favour of assessee.
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