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2015 (8) TMI 361 - AT - Income TaxTDS u/s 194J OR u/s 192 - remuneration to consultants - re-characterisation of the arrangement between the company and consultants as employer-employee in place of consultant arrangement between the assessee entity and the said consultants - AO raised a demand being the difference in tax deductible u/s 192 and 194J on payments made to consultants - CIT(A) deleted demand - Held that:- AO re-characterised the relation between the assessee company and the consultant/technocrat and relation of employer and employee but we are unable to see any basis or allegation supporting this recharacterisation and action of the AO to treat the payments by the assessee company to these consultants/technocrats as salary instead of remuneration/consultation fee and expecting the assessee to deduct TDS u/s 192 of the Act instead of remuneration/consultation fee and expecting the assesse to deduct TDS u/s 192 of the Act instead of 194J of the Act. Per contra, from the explanation, details and evidence submitted by the assessee, we are satisfied that the payments made by the assessee company was not salary and the same was remuneration/consultation fee paid to the highly experienced technocrats/consultants which could not be engaged on full time basis as regular employees due to high remuneration and temporary requirement of the assessee company. We cannot ignore this fact that all technocrats and consultants are more than 60 years of age and are in post retirement/superannuation life cycle and we cannot expect them to work as regular employees unless there is an exceptional case. We may further note that the AO has not demolished this contention of the assessee that the said consultant/technocrat had filed their income tax return with the department which were also submitted before the AO and they have paid tax thereon, therefore, respectfully following the ratio laid down by the Hon’ble Supreme Court in the case of Hindustan Coca Cola (2007 (8) TMI 12 - SUPREME COURT OF INDIA ), there was no need of expecting the assessee deductee to again pay the tax on the said payment on account of short deduction of TDS, specially when the TDS deducted by the assessee company u/s 194J of the Act was on the higher side as deductible u/s 192 of the Act. - Decided against revenue.
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