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2019 (10) TMI 1028 - ITAT INDORETDS u/s 194C or 194J - short deduction of TDS - amounts paid by the assessee towards operation & maintenance of windmill machines - HELD THAT:- The provisions of law is provided u/s 194C & 194J of the Act, we are of the considered view that the alleged payment made for “operation & maintenance” of the wind mills paid by the assessee company to various payees was under a composite contract and the deduction of tax on such payment was required to be made u/s 194C of the Act @ 2%. The revenue authorities have failed to refer to any of the specific clause of the agreement which could show that the amount has been paid towards taking the technical services through which the assessee has acquired certain rights which could be used in the future. Therefore, there remains no dispute that the alleged payment is a payment for contractual payment of labour for “operations and maintenance work” liable for deduction of tax at source u/s 194C of the Act and not 194J Default in collection of TCS - HELD THAT:- We find that the figure of sale of scrap of ₹ 21,36,296/- is not undisputed. The Assessing Officer has computed the non collection of TCS on the amount of sale of scrap of ₹ 9,59,608/- which is the difference between the total sale of scrap of ₹ 21,36,296 less ₹ 11,76,688) on which TCS has been collected. The ld. AO has not doubted on the collection of TCS of ₹ 11,76,688/- paid by the assessee for sale of scrap but failed to give credit for the TCS claimed to have been deposited of ₹ 9596/-. In our view this issue needs to restored back to the file of Ld. AO so that the assessee can prove the payment of tax deducted at source at ₹ 21,363/- which inter alia includes the TCS payment of ₹ 9596/-. If the Ld. AO is satisfied with the necessary supporting evidence, the alleged demand of ₹ 9596/- and the interest charged thereon may be deleted after giving reasonable opportunity of being heard to the assessee.
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