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2016 (5) TMI 533 - ITAT MUMBAI

2016 (5) TMI 533 - ITAT MUMBAI - TMI - TDS u/s 194H - short deduction of TDS on provision for commission and brokerage made - disallowance u/s 40(a)(ia) - Held that:- Section 40(a) (ia) of the Act contents two wings i.e. non deduction and non deposit of TDS and it renders only the duty to deduct the tax and to pay to government account. And if there is any shortfall due to any difference of opinion as to taxable of any item or to the nature of payment falling under various TDS provisions, then t .....

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cided in favour of assessee - I.T.A. No. 154/Mum/2013 - Dated:- 6-4-2016 - SHRI B.R. BASKARAN, AM AND SHRI SANDEEP GOSAIN, JM For The Appellant : Shri Darshik Shah For The Respondent : Ms. Anu Krishna Aggarwal ORDER Per Sandeep Gosain, J. M.: The Present Appeal has been filed by the assessee against the order of Commissioner of Income Tax (Appeals)- 4, dated 23.10.2012 whereby CIT(A) has partly allowed the appeal filed by the assessee against the order of AO dated 05.12.2011on the grounds of app .....

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son. Accordingly, the Appellants have rightfully not deducted TDS and the provisions of section 40(a)(ia) are not applicable. 1.2 The Appellants submit that the addition of ₹ 6,00,000/- are purely adhoc, against settled principles of law and is liable to be set aside. 2. The Hon CIT(A) grossly erred in confirming the disallowance of ₹ 6,38,961/-being payments 1 credits towards commission and brokerage, on account of short deduction of TDS. 2.1 The Hon CIT(A) completely ignored the su .....

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2. The brief facts of the case are that the return of income was e-filed by the assessee company on 27.09.2009 declaring total income of ₹ 64,33,320/-. The return was duly processed u/s 143(1) of the I.T. Act. The case of the assessee was selected for scrutiny and notice were issued and served on the assessee. Ld. AO after seeking the reply from the assessee had passed the order of assessment dated 05.12.2011 u/s 143(3) of the Income-tax Act, 1961 and computed the total income. 3. Aggriev .....

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ed as not pressed. Ground No. 2 4.1 The ld. AR representing the assessee submitted that the assessee/appellant company engaged in the business of manufacturing of surgical dressing and the assessee had made certain payments on account of commission and brokerage for which the assessee has short deduction of tax and accordingly short deduction of TDS which was deducted and was consequently deposited with the Government. The details of these deductions have already been submitted by the assessee w .....

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sinterpreted by the CIT(A) while dealing with the said ground. Ld. AR also relied upon the judgments titled herein below:- 1. Highlight Pictures (India) (P.) Ltd. vs ACIT [2014] 49 taxmann.com 187 (Mumbai-Trib.) 2. CIT vs. S.K.Tekriwal [2014] 46 taxmann.com 444(Calcutta) 3. Three Star Granites (P.)Ltd vs. ACIT [2014] 49 taxmann.com 578 (Cochin-Trib.) 4. ACIT vs. Pankaj Bhargava [2013] 33 taxmann.com 484 (Delhi Trib.) 5. Hero MotoCorp Ltd. vs ACIT [2013] 36 taxmann.com 103 (Delhi Trib.) 6. Apollo .....

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nue Authorities. 4. We have heard the counsels for both the parties and we have also perused the material on record as well as the orders passed by the revenue authorities. Before we decide the merits of the case it is necessary to evaluate the orders of the CIT(A) wherein the said ground was dealt with by the CIT(A) and the same is reproduced as under: 6. The facts of the case are that in certain payments on account of commission and brokerage, assessee has short deducted tax and accordingly sh .....

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f the cases where partial TDS has been made or deposited. Otherwise, anyone can make fun of the provisions of section 40(a)(ia) by making the least possible TDS and claim the protection that it si the case of partial TDS made, but that could never be the intention of the legislature and, therefore, the contention of the assessee deserves to be rejected. In result, the ground is rejected. 4.1 After analyising the aforesaid portion of the CIT(A) we have noticed that the CIT(A) has simply mentioned .....

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