TMI Blog2018 (2) TMI 1923X X X X Extracts X X X X X X X X Extracts X X X X ..... vered by the judgment of CIT vs. M/s UTV Entertainment Television Ltd. [ 2017 (11) TMI 915 - BOMBAY HIGH COURT] in favour of the assessee. Similarly, the Hon,ble Gujarat High Court in CIT vs. Prayas Engineering Ltd.[ 2014 (11) TMI 1086 - GUJARAT HIGH COURT] and CIT vs. Kishore Rao others (HUF) [ 2016 (4) TMI 430 - KARNATAKA HIGH COURT] have held that in case of shortfall due to any difference of opinion as to the taxability of any item or the nature of payments falling under various TDS provisions, no disallowance can be made by invoking provisions of 40(a)(ia) of the Act. Findings of the CIT(A) are based on the evidence on record and in accordance with the principles of law laid down by the High courts including the jurisdictional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for by the AO. Since, the assessee had debited an amount of ₹ 30,54,15,426/- under the head distribution expenses, the AO asked the assessee to furnish the detail of expenses. Accordingly, the authorized representative submitted the details. The AO noticed that the assessee had deducted the Tax at source @ 10% on the amount of ₹ 12,01,982/- and on remaining amount the tax was deducted @ 2% u/s 194C instead of 194J of the Act. Accordingly, the AO asked the assessee to show cause as to why disallowance of expenses for less TDS should be made u/s 40(a)(ia) of the Act. The authorized representative of the assessee submitted a detailed reply and contended that TDS u/s 194C is applicable for carriage/placement fees. However, the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 69 (Kerala), had held as under:- In so far as the judgment of the Calcutta High Court in S.K. Tekriwal (supra) which was relied on by the Tribunal is concerned, with great respect, for the aforesaid reasons, we are unable to agree with the views that if tax is deducted even under a wrong provision of law, Section 40(a)(ia) cannot be invoked . 3. On the facts and circumstances of the case and in law, whether the Ld. CIT (A) was justified in directing to delete the disallowance u/s 40(a)(ia) rws194J of Carriage Fess , whereas the jurisdictional ITAT, Mumbai L Bench, in its order dated 28.03.2014 in the case of ADIT-(IT)-2(2), Mumbai Vs Viacom 18 Media Pvt. Ltd. Answered in the affirmative, the following questions of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the light of the law laid down by the various Benches of the Tribunal and the High Courts including the Hon ble jurisdictional High Court. The Ld. counsel further submitted that in CIT vs. M/s UTV Entertainment Television Ltd. in Income Tax Appeal No525 of 2015,732 of 2015,741 of 2015 and 1035 of 2015, the Hon ble Bombay High Court has decided the identical issue in favour of the assessee. The Ld counsel further submitted that the Hon,ble Gujarat High Court in CIT vs. Prayas Engineering Ltd., Tax appeal No 1237 of 2014 and the Karnataka High Court in CIT vs. Kishore Rao others (HUF) have held that in case of shortfall due to any difference of opinion as to the taxability of any item or the nature of payments falling under various TDS pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handabhoy Jassobhoy vs DCIT 49 SOT 448 (Mumbai ITAT). Respectfully following the decision over the issue, the AO is directed to of genuine expenditure of ₹ 30,42,13,444/-. 7. We notice that the Ld. CIT(A) has deleted the disallowance in question holding that carriage fees does not come within the ambit of the definition of Royalty. Therefore, the assessee was not required to deduct the tax at source u/s 194J. Further the Ld. CIT(A) has held that it is not the case of no TDS but the case of less TDS therefore, the disallowance made by the AO is bad in law. The Ld. CIT(A) has relied on the decision of the Hon ble Calcutta High Court rendered in CIT vs S. K. Tekriwal 48 SOT 515 and the decisions of coordinate Bench of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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