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2013 (4) TMI 344 - AT - Income TaxDisallowance made u/s 40(a)(ia) - assessee had deducted TDS but the tax deduction is not in accordance with the rate as has been prescribed u/s 194C, 194H and 194J of the IT Act - CIT(A) deleted the disallowance - Held that:- As decided in CIT vs M/s. S.K.Tekriwal [2012 (12) TMI 873 - CALCUTTA HIGH COURT] Section 40(a)(ia) refers only to the duty to deduct tax and pay to government account there is nothing in the said section to treat the assessee as defaulter where there is a shortfall in deduction. And if there is any shortfall due to any difference of opinion the assessee can be declared to be an assessee in default u/s. 201 but no disallowance u/s 40(a)(ia) is allowed - confirm the action of the CIT(A) so far as it relates to the short deduction by deleting the disallowance made by the AO u/s 40(a)(ia) - in favour of assessee. Balance amount of Rs.5,071,483/- - contention of the assessee that it had deducted the tax in course of various provisions but payment of the tax so deducted was made before filing of the due date of the return u/s 139(1) - Held that:- Once the issue is decided in Virgin Creations case [2011 (11) TMI 348 - CALCUTTA HIGH COURT] that the amendment made in the provisions of section 40(a)(ia) by the Finance Act 2010 as curative and remedial and TDS paid before filing of the return u/s 139(1) the deduction in respect of the amount on which the TDS is shown is allowed. As in the present case since the DR vehemently contended that the AO has not verified the date of payment of the TDS by the assessee the order of the CIT(A)so far it relates to Rs.5,071,483/- is set aside & restore the matter to the file of AO for the purpose verification whether the assessee has deposited the TDS before the due date of filing of the return u/s 139(1) of the IT Act - in favour of revenue for statistical purposes.
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