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2016 (3) TMI 445 - ITAT MUMBAITDS u/s 194C OR 194J - royalty and connection charges - disallowance u/s 40(a) - Sort deduction of tax under different or wrong provision of the section - AO'S case that such payment is on account of “royalty” covered within the ambit of section 9(1)(vi) and therefore the TDS should have been deducted under section 194J - Held that:- If there are two conflicting decisions of non-jurisdictional High Courts, then the decision in favour of the assessee should be taken. We agree with such a contention raised by the assessee that, if there are to conflicting decisions and in absence of any jurisdictional High Court, decision one favourable to the assessee should be preferred and this proposition has been long back settled by the Hon’ble Supreme Court in the case of Vegetable Products Ltd (1973 (1) TMI 1 - SUPREME Court ). Thus, we hold that, no disallowance under section 40(a)(ia) should be made on short deduction of tax under different or wrong provision of the section. Moreover, in this case, Ld. Counsel has pointed out that the amount paid to Hathway Cable and Datacom Ltd. has been offered to tax in the return of income filed by the said concern, therefore, in view of the second proviso to section 40(a)(ia) no disallowance under section 40(a)(ia) should be made. This proposition now has been settled by the Hon’ble Delhi High Court in the case of CIT vs Ansal Land Work [2015 (9) TMI 79 - DELHI HIGH COURT], wherein held that such an amendment is directory and curative in nature. Thus the assessee succeeds on this issue also. - Decided in favour of assessee.
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