TMI Blog2019 (9) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... ing various decisions, decided the issue in assessee s favour. - I.T.A. No.1205/Mum/2018 - - - Dated:- 19-3-2019 - Shri Sandeep Gosain, JM And Shri Manoj Kumar Aggarwal, AM For the Appellant : Shri Rajiv Gubgotra, Ld.DR For the Respondent : Shri Nikunj Gada, Ld. AR ORDER PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER):- 1. Aforesaid appeal by revenue for Assessment Year [AY] 2012-13 contest the order of Ld. Commissioner of Income-Tax (Appeals)-4, Mumbai, [CIT(A)], Appeal No. CIT(A)-4/IT-22/AC-16(1)/2014-15 dated 18/12/2017 on following Grounds of appeal: - 1. Whether on the facts, in the circumstances of the case and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 898.52 Lacs e-filed by the assessee on 28/09/2012. The assessee being resident corporate entity is stated to be engaged in broadcasting television channels . 2.2 In the quantum assessment order the assessee has been saddled with disallowance u/s. 40(a)(ia) for want of deduction of tax at source as per statutory provisions, which is the sole subject matter of present appeal before us. The nature and quantum of disallowance is as per the following details: - No. Nature of Payment Disallowance Rs. (Rounded Off) 1. Payment of Carriage Fees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot attract the rigors of Section 40(a)(ia) in view of certain judicial pronouncements rendered by the Tribunal as well as by Hon ble Kolkata High Court in DCIT Vs. S.K.Tekriwal 48 SOT 515. The Ld. first appellate authority, convinced with alternative plea, concurred with the stand of assessee and concluded the matter in assessee s favor in the following manner: - 6.4 It is further seen that Hon'ble Mumbai ITAT in the case of Chandabhoy Jassobhoy vs DCIT 49 SOT 448 has held that it is not the case that assessee has not deducted any amount. Assessee had deducted tax u/s 192 of the ITA and therefore provisions of section 40(a)(ia) of the ITA do not apply as the said provision can be invoked only in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held that deduction of TDS under wrong provision of law will not save assessee from disallowance u/s 40(a)(ia) of the Act. However, the Kolkata High Court in the matter of Samir Tekriwal (supra), has held that expenses are not liable to be disallowed u/s 40(a)(ia) on account of short deduction of tax. The Hon'ble jurisdictional High Court has not decided the issue. Thus, we are faced with two diagonally opposite views about applicability of the provisions of section 40(a)(ia) of the Act. We find that the Hon'ble Bombay High Court has in the case of Ashok Kumar Parekh (186 IT R212) has dealt with the binding precedence of the High Court judgements. Here, we would also like to reproduce the por ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax and consequent non-applicability of section 40(a)(ia) has been covered in favour of appellant in view of above decision. Respectfully following the above decisions of Hon'ble ITAT, the disallowance made by the AO of carriage fees amounting to ₹ 1,50,33,608/- u/s.40(a)(ia) of the Act is deleted. The issue pertaining to the questioned payment being Royalty or not, therefore, becomes academic in nature and as such need not be decided. For statistical purposes the same is treated as rejected. This Ground is accordingly partly allowed. Aggrieved, the revenue is in further appeal before us. 4. The Ld. Departmental Representative [DR] placed reliance on the decision of Hon ble Kerala High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Tribunal in the cases of CIT vs M/s Star Den Media Services pvt .Ltd( ITA No 1413/MUM/2014) and Chandabhoy Jassobhoy vs DCIT 49 SOT 448 (Mumbai ITAT). As pointed out by the Ld. counsel for the assessee this issue is covered by the judgment of the Hon ble Bombay High Court delivered in CIT vs. M/s UTV Entertainment Television Ltd. in Income Tax Appeal (supra) in favour of the assessee. Similarly, the Hon ble Gujarat High Court in CIT vs. Prayas Engineering Ltd., (supra) and the Karnataka High Court in CIT vs. Kishore Rao others (HUF) (supra) have held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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