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2024 (2) TMI 47 - AT - Income TaxTDS u/s 194J or u/s 194C - payments made towards maintenance of X-Ray machine and CVC machine - assessee in default u/s 201(1) - HELD THAT:- We observe that the contentions and the case laws relied on by the assessee was not considered by the CIT(A) in proper perspective. We also noticed that in the course of appellate proceedings assessee submitted that the assessee furnished return of income filed by the payee to show that the income has been accounted for in their returns and paid the tax dues on income declared by them and assessee is in the process of furnishing of certificate to this effect from an Accountant in Form No. 26A, however, the Ld.CIT(A) has not considered the submissions of the assessee. In the grounds of appeal the assessee also contended that the AO failed to consider the amount already deposited by the assessee even before passing the order u/s 201(1) and 201(1A) of the Act. We observe that as per the mandate of the Hon’ble Supreme Court in the case of Hindustan Coca Cola Beverage Pvt. Ltd [2007 (8) TMI 12 - SUPREME COURT] if the payee has taken into consideration the amounts received by payer in their return of income and paid taxes on such amounts the assessee cannot be treated as an assessee in default u/s 201(1) of the Act. CIT(A) appears to have not considered all these submissions of the assessee and the evidences placed before him. In the absence of any evidence furnished before us to show that the payees have already considered these amounts in their returns, in the interest of justice, we restore this matter to the file of AO for fresh adjudication in accordance with law. The assessee is at liberty to file all the evidences to support their contentions before the AO. All the issues in the appeal are left open for fresh adjudication in accordance with law after providing adequate opportunity of being heard to the assessee. Appeals of the assessee are allowed for statistical purpose.
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