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2016 (9) TMI 990 - AT - Income TaxTDS u/s 195 - deduction of TDS on payment of commission - Held that:- But in the present case the applicability of section 195(2) would only arise in case the assessee is doubtful or is not sure as to what should be the portion so taxable or the amount of tax to be deducted and in case where a person responsible for deduction is fairly certain then in that eventuality he can make his own determination as to whether the tax was deductible at source and if so, what should be the amount thereof. Considering the facts of the present case the applicability of section 195(2)of the I.T. Act is not made out. Therefore, there was no requirement for the assessee to make application to the AO for non deduction of TDS. Since all those facts have already been considered by CIT(A) while passing impugned order. No new circumstances have been brought on record before us in order to controvert or rebut the findings recorded by the learned CIT (A). Moreover, there is no reason for us to deviate from the findings recorded by the learned CIT (A). Therefore, we are of the considered view that the findings recoded by the learned CIT (A) are judicious and are well reasoned. Accordingly, we uphold the same. Resultantly, this ground raised by the Revenue stands dismissed. Addition u/s 41(1) - Held that:- CIT(A) has taken into consideration that a substantial portion of the outstanding amount was out of provision made for A.Y. 2004-05 under consideration, and therefore the ld. CIT(A) has rightly held that the AO’s contention that the whole commission was outstanding for last so many years was not correct. Ld. CIT(A) has also considered that the said commission payable by assessee was not been waived or unilaterally written off by the receiver of commission and also the payment of said amount was not time barred in relevant assessment year. Considering all the facts and legal propositions, the CIT(A) has rightly come to the conclusion that the non submission of reply to the same cannot be enough to construe that no services might have been rendered by the assessee and hence the treatment of said liability as non-genuine was not fully substantiated in the assessment order and hence the additions of this ground was rightly deleted by CIT(A). No new circumstance has been brought on record before us by the learned DR in order to controvert or rebut the findings recorded by the learned CIT (A) on the basis of the remand report. Moreover, there is no reason for us to deviate from the findings recorded by the learned CIT (A). Therefore, we are of the considered view that the findings recoded by the learned CIT (A) are judicious and are well reasoned. Accordingly, we uphold the same. Resultantly, this ground raised by the Revenue stands dismissed.
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