TMI Blog2018 (2) TMI 1941X X X X Extracts X X X X X X X X Extracts X X X X ..... Jassobhoy vs DCIT [ 2011 (7) TMI 956 - ITAT MUMBAI] . 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. The findings of the Ld 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 High Court discussed above. - Decided against revenue - ITA No. 3386/MUM/2016, I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee had deducted the tax at source @ 10% on the amount of ₹ 22,66,752/- and on the 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 rejected the contention of the assessee and disallow the expenditure holding that carriage fees is Royalty as defined in explanation 2 to section 9(1)(vi) and the tax at source has been deducted at the lesser rate. The assessee challenged the assessment order befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 law raised by the Department- a) Whether definition of term process in Explanation 6 to section 9(1)(vi), by way of retrospective amendment is clarificatory in nature and did not amend definition of royalty per se Held, yes; and b) Whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 015,732 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 provisions, no disallowance can be made by invoking provisions of 40(a)(ia) of the Act. 6. We have heard the rival contentions of the parties and carefully gone through the material on record including the decisions relied upon by the parties. The only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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