TMI Blog2018 (5) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 - SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER For The Assessee : Shri B.V. Jhaveri, Shri B.J. Vyas, Shri Devang Divecha And Shri Meet Shah For The Revenue : Shri Saurabh Kumar ORDER PER G.S. PANNU, AM : The captioned are two appeals by the Revenue pertaining to Assessment Years 2011-12 and 2012-13 and respective cross objections by the assessee and since the issues involved are common, they have been clubbed and heard together and a consolidated order is being passed for the sake of convenience and brevity. 2. First, we may take-up the appeal and cross objection pertaining to Assessment Year 2011-12 wherein the respective Grounds of appeal raised read as under :- I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs. 3) The appellant prays that the order of CIT(A) on the above grounds be set aside and that of the Assessing officer be restored. CO No. 279/MUM/2017 (Assessee s Cross objection) 1. The Commissioner (Appeals) erred in law in not adjudicating the contention of the Assessee that it has neither entered into a contract for rendering technical services nor a contract for rendering managerial services and therefore, the provisions of sec.194J has no application, more so when the contract of the Assessee is to provide satellite services. 2. The Commissioner (Appeals) failed to take into consideration that sec.194C defines the word 'work' which includes broadcasting and telecasting and production of programm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting the same u/s 194J of the Act @ 10%. In this context, the Assessing Officer in para 5.1.4 of his order has tabulated such payments to the extent of ₹ 6,31,37,025/- and noticing that the required tax was not deducted at source, disallowed the corresponding expenditure by invoking Sec. 40(a)(ia) of the Act. The disallowance so made by the Assessing Officer was carried in appeal before the CIT(A). The CIT(A) noted that the controversy was short-deduction of tax at source inasmuch assessee has deducted tax at source @ 2% in terms of Sec. 194C whereas the Assessing Officer required it to be deducted @ 10% in terms of 194J of the Act. As per the CIT(A), mere short-deduction of tax at source would not bring the corresponding expenditure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5. Pertinently, in the present case, the only case sought to be made out by the Assessing Officer is that the tax ought to be deducted at source at a higher rate of 10% instead of the deduction made by the assessee @ 2%. The Hon'ble Calcutta High Court in the case of S.K. Tekriwal (supra) noticed that the conditions prescribed u/s 40(a)(ia) of the Act for making the disallowance envisaged that tax was deductible at source, but such tax had not been deducted. However, as per the Hon'ble High Court, where tax has been deducted by the assessee, even under a bona fide wrong impression, under wrong provisions of the TDS, the disallowance envisaged u/s 40(a)(ia) of the Act is not triggered. The said decision squarely covers the contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid precedent. 9. In view of the aforesaid fact-situation, so far as the Grounds raised by the assessee in its cross objection are concerned, the same are remanded back to the file of the CIT(A) for adjudication as per law. Needless to mention, the CIT(A) shall allow the assessee a reasonable opportunity of being heard and thereafter pass an order afresh, as per law. 10. In the result, whereas the appeal of the Revenue is dismissed, the cross objection of the assessee is allowed, as above. 11. It was a common point between the parties that the facts and circumstances in the appeal of Revenue and cross objection of the assessee for Assessment Year 2012-13 are pari materia to those considered by us in the appeal of Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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