TMI Blog2014 (11) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... section does not envisages that, if the assessee has deduced the tax under wrong provisions of the act or there is a short deduction of tax then also, it entails disallowance under section 40(a)(ia). There is nothing in the section to treat the assessee as defaulter for claiming a deduction, where there is a short fall in deduction. This proposition has been upheld in the case of CIT Vs. S.K. Tekriwal reported in (2012 (12) TMI 873 - CALCUTTA HIGH COURT). In this case the assessee has deducted tax u/s 194C instead of 194J, the Hon’ble High Court held that the expenses cannot be disallowed u/s 40(a)(ia) merely on account of short deduction of tax at source. Similar view has been taken by the Co-ordinate Benches in the cases relied upon by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se as well as in Law, the Learned CIT(A) has erred in not following the decision of jurisdictional Tribunal, on which the appellant was relied during the appellate proceedings before Hon ble CIT(A). 2. Brief facts of the case are that, the assessee is engaged in the business of stock broking and trading in shares. The assessee has debited an amount of ₹ 12,72,440/- on account of transaction charges, which were payable to stock exchange on account of services provided with regard to transactions in securities exchange. Assessing Officer noted that, the assessee has not deducted TDS u/s 194J, therefore, same is disallowable u/s 40(a)(ia). Before the Assessing Officer, the assessee s case was that it has deducted TDS u/s 194C and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no disallowance u/s 40(a)(ia) can be made if there is a short deduction of tax or TDS has been deducted under different sections. The lists of such decisions are as under:- i. DCIT Vs. Chandabhoy and Jassobhoy 49SOT 448 ITAT Mumbai ii. DCIT Cir-33, Kolkata vs S.K. Tekriwal 48 SOT 515 ITAT Kolkata iii. Apollo Tyres Ltd. Vs. DCIT 155 TTJ 470 ITAT Cochin iv. EGS Survey P. Ltd Vs. ACIT 10(3), ITA No. 6281/M/2011 ITAT Mumbai v. ACIT Vs. K.S. Aiyar Co. ITA Nos. 282/M/2013, 7127/M/2012, 283/M/2013 7128/M/2012 ITAT Mumbai vi. UE Trade Corporation (India) Ltd. Vs. DCIT 2302/Del/2011 ITAT Delhi 5. On the other hand Ld. DR strongly relied upon order of the AO as well as the Ld.CIT(A) and submitted that, the TDS has to be dedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efaulter for claiming a deduction, where there is a short fall in deduction. This proposition has been upheld by the Hon ble Kolkata High Court in the case of CIT Vs. S.K. Tekriwal reported in (2014) 361 ITR 432 (Kol). In this case the assessee has deducted tax u/s 194C instead of 194J, the Hon ble High Court held that the expenses cannot be disallowed u/s 40(a)(ia) merely on account of short deduction of tax at source. Similar view has been taken by the Co-ordinate Benches in the cases relied upon by the learned counsel, which has been referred in the foregoing para. Accordingly, we hold that no disallowance u/s 40(a)(ia) can be made merely because assessee has deducted TDS under section 194C instead of section 194J. Thus the ground raised ..... X X X X Extracts X X X X X X X X Extracts X X X X
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