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2020 (12) TMI 1025 - AT - Income TaxTDS u/s 194H - Default u/ss. 201(1)/201(1A) - non deduction of tds - payment of dhami/commission by the assessee - HELD THAT:- As the requisite purchase bills for A.Y. 2013-14 and A.Y. 2015-16 were not produced by the assessee, therefore, the ITO(TDS) had presumed that the assessee in the said years also must have paid dhami/commission of the same amount as in A.Y. 2014-15, de hors deduction of tax at source. We would mince no words in saying that we are unable to persuade ourselves to subscribe to the basis as per which the assessee had been held to be in default U/ss. 201(1)/201(1A) of the Act, in respect of a presumptive payment of dhami/commission by the assessee in A.Y. 2013-14 and A.Y. 2015-16 It is the claim of the Ld. A.R. that as the respective payees i.e. the dealers in wheat to whom the aforesaid sum had been paid/credited had taken into account the impugned sum of dhami/commission while computing their income in their returns of income filed under Sec. 139 for the captioned years under consideration, and have also paid the taxes on the income declared in such respective returns of income, therefore, the assessee cannot be treated as being in default as per the 'first proviso' to Sec. 201(1). Also, it has been stated by the Ld. A.R., that certificates from the accountant in the prescribed form i.e. 'Form No. 26A' verifying the aforesaid facts had been obtained by the assessee. On the basis of the aforesaid facts, we are of the considered view that the matter in all fairness requires to be restored to the file of the ITO(TDS) for verifying the veracity of the aforesaid claim of the assessee. In the course of the 'set aside' proceedings, the ITO(TDS) shall verify the maintainability of the claim of the assessee that now when the requisite conditions envisaged in the 'first proviso' to Sec. 201(1) of the Act had been complied on its part, it cannot be treated as being in default and consequentially be saddled with the liability U/ss. 201(1)/201(1A) of the Act. Before parting, we may herein clarify that the assessee shall in the course of the 'set aside' proceedings furnish the requisite details as would be called for by the ITO(TDS) for the purpose of giving effect to our aforesaid directions.
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