TMI Blog2018 (11) TMI 1795X X X X Extracts X X X X X X X X Extracts X X X X ..... ct tax and second where after deducting tax, inter alia, the assessee has to pay the same into government account. The Hon ble High Court of Calcutta went to observe that there was nothing in the said section to treat, inter alia, the assessee as defaulter where there is a shortfall in deduction and further, section 40a(ia) refers only to the duty to deduct tax and pay to government account. Undisputedly, in the present appeal also, there is no allegation that the tax deducted was not paid into the government account and the only fault of the assessee is the failure on its part to deduct tax at the prescribed rate. This, as per the judgement of the Hon ble High Court of Calcutta, does not attract disallowance u/s 40a (ia) of the Act. - Deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. The ITAT passed the order on 19.06.2015. However, by inadvertent omission, ground no. 4 of the assessee s appeal was not adjudicated. The assessee preferred a Miscellaneous Application (M.A.) before the ITAT and the M.A. was allowed vide order dated 23.11.2016 in M.A. No. 391/Del/2015 wherein the earlier order dated 19.06.2015 was recalled for the limited purpose of disposing of ground no. 4 raised by the assessee in its appeal. Accordingly, we proceed to dispose of ground no. 4 which reads as under:- 4. The Commissioner of Income Tax(A) has in view of the facts and circumstances of the case and in law erred in holding and interpreting that disallowance can be made u/s 40(a)(ia) even if there is a shortfall in the deduction of tax a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by invoking provisions of section 40a (ia) of the Act. It was also submitted that a similar view had been taken by the Coordinate Benches of Mumbai and Delhi ITAT. 4.0 In response, the Ld. Senior Departmental Representative (Sr. DR) placed reliance on the concurrent findings of the Assessing Officer as well as the Ld. Commissioner of Income Tax (Appeals) and highlighted the fact that in this case, the Ld. Commissioner of Income Tax (Appeals) had given a categorical finding that since there was no involvement of M/s SRK Travels Tours Pvt. Ltd. in the management of day to day running of the business affairs of the hotel in that property, therefore, the payment made by the assessee was in the nature of rent and the assessee was liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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