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2016 (1) TMI 617 - ITAT MUMBAI

2016 (1) TMI 617 - ITAT MUMBAI - TMI - TDS u/s 194J - non deduction of tds - whether the remuneration paid to the director Mr. K. S. Kalyansundaram is liable to be taxed in view of provision contended u/s. 192(1) or is liable to be taxed in view of the provision contended in section 194J ? - Held that:- In view of the terms and conditions of the contract of Mr. K. S. Kalyansundaram, it is apparent that he is not regular employee of the company. There is nothing on record to which it can be assum .....

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interest u/s. 201(1)/201(1A) are not applicable in the case of the assessee. - Decided in favour of assessee - I.T.A. No.3594/M/14, I.T.A. No. ITA 3595/M/14 - Dated:- 30-11-2015 - SHRI R.C.SHARMA, AM AND SHRI AMARJIT SINGH, JM For the Appellant : Shri Sunil Nahta For the Respondent : Shri Sumit Kumar ORDER Per: Amarjit Singh: This order shall disposed of both the appeals bearing ITA No. 3594/M/14 for A.Y. 2010-11 and ITA 3595/M/14 for A.Y. 2011-12 as the matter of controversy involves similar in .....

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to be taxed in view of provision contended u/s. 192(1) of the Income Tax Act, 1961( in short "the Act") or is liable to be taxed in view of the provision contended in section 194J of the Act. Learned representative of the assessee has argued that Mr. K. S. Kalyansundaram is not the permanent/regular employee of the company, however, his professional services was taken on contract, therefore, the assessee company has rightly deducted tax at source @ 10% u/s. 194J of the Act and the tax .....

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e said contentions and argued that the learned CIT(A) has rightly adjudicated the matter of controversy by holding that Mr. K. S. Kalyansundaram was a regular employee and accordingly, the income was assessed in view of the 201(1)/201(1A), hence, the appeal of the assessee is liable to be dismissed. Before deciding the matter of controversy it is necessary to advert the terms & conditions of the contract on record: a) Working period of the professional was fixed and in addition to such fixed .....

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r which was further expendable at the option of the assessee company e) The Professional was liable to be transferred from the post engaged in any other post in any other department of the company or its subsidiary/associate companies anywhere in India or abroad f) The Professional is required to devote full time and energy in the best interest of the company and shall not, while in service of company, undertake or concern itself directly or indirectly with any other employment or activity, g) A .....

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or professional to the remuneration paid in their books of accounts, the same is not conclusive to decide the nature of the said remuneration which has to be ascertained on the basis of relationship between the assessee and the professional. It is thus established that the relationship between the assessee company and the professional was purely that of employer and employee and the remuneration paid to the professional in terms of the said relationship is salary liable to be subjected to TDS u .....

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