TMI Blog2020 (10) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... essee to the distributor for sale of talk time card - Decided in favour of assessee for statistical purposes. Short deduction of TDS - TDS u/s 194C or 194J - customer support charges - HELD THAT:- This issue is squarely covered in assessee s favor by the order of the Tribunal for AYs 2011-12 2012-13 [ 2017 (10) TMI 539 - ITAT MUMBAI] wherein found no infirmity or illegality in the order of the CIT(A) in holding that provisions of Section 40(a)(ia) will not be applicable in the case of the assessee as there was nothing in the section to treat the assessee as defaulter where there is shortfall in deduction of TDS. In fact, this decision has subsequently been followed by the co-ordinate bench of this Tribunal in assessee s own case for AY 2010-11 [ 2018 (6) TMI 547 - ITAT MUMBAI] - Decided against revenue. - I.T.A. No.5900/Mum/2018 And I.T.A. No.5534/Mum/2018 - - - Dated:- 7-9-2020 - Hon ble Shri C.N. Prasad, JM And Hon ble Shri Manoj Kumar Aggarwal, AM For the Assessee : Shri Jay Bhansali Ld. AR For the Revenue : Shri Sreekar-Ld. DR ORDER PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. Aforesaid cross-appeals for Assessment Year (AY) 2013-14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the order of Hon'ble ITAT, Mumbai in the case of Videocon d2h Ltd. (now merged with Dish TV India Ltd.), wherein on similar issues, the Hon'ble ITAT held in favour of appellant. 7. The above grounds/sub-grounds are without prejudice to each other. The grounds raised by the revenue read as under: - 1. Whether on the facts and circumstances of the case and in law, the Hon'ble ITAT is justified in confirming the order of Ld. CIT(A) of deleting the disallowance u/s. 40(a)(ia) rws 194J in respect of Customer Support Charges and also that of CAS, Middleware and SMS Charges without even deciding the section under which the tax was supposed to be deducted as per law and merely restricting itself over the issue of short deduction of tax? 2. Whether on the facts and circumstances of the case and in law, the Hon'ble ITAT is justified in confirming the order of Ld. CIT(A) of deleting the disallowance u/s. 40(a)(ia) rws 194J in respect of Customer Support Charges and also that of CAS, Middleware and SMS Charges without appreciating the ratio of judgement laid down by Hon'ble Kerala High Court in its judgment dated 20.07.2015 in the case of CIT-1, Ko ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was deducted at source (TDS) @2% u/s 194C. However, the said payments, in the opinion of Ld.AO, would require higher TDS of 10% u/s 194J and the failure to do so would attract consequential disallowance u/s 40(a)(ia). The assessee, inter-alia, submitted that short deduction, if any, would not lead to any disallowance u/s 40(a)(ia) as held in various decisions of the Tribunal. Further, the assessee, drawing attention to the contractual terms, justified its stand in deducting TDS @2% u/s 194C against the aforesaid payments and submitted that the services availed would not fall under the head fees for professional or technical services in terms of Sec.194J . However, disregarding the same, Ld. AO opined that the services were technical in nature and the expenses would fall under the category of professional / technical services which would require higher deduction of 10% u/s 194J. Since similar disallowance was made in AYs 2010-11 to 2012-13, Ld. AO chose to make similar disallowance in this year as per the provisions of Sec. 40(a)(ia). 3.3 Regarding commission payment, it was observed that the assessee did not deduct any TDS on commission of ₹ 5648.42 Lacs stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mon order dated 10/10/2017, the coordinate bench found no infirmity or illegality in the order of the CIT(A) in holding that provisions of Section 40(a)(ia) will not be applicable in the case of the assessee as there was nothing in the section to treat the assessee as defaulter where there is shortfall in deduction of TDS. In fact, this decision has subsequently been followed by the co-ordinate bench of this Tribunal in assessee s own case for AY 2010-11 (ITA Nos. 3739 3383/Mum/2016 order dated 08/06/2018). Therefore, facts being pari-materia the same, no fault could be found in the impugned order, on this issue. Resultantly, the revenue s appeal stands dismissed. 6. Coming to assessee s appeal, it is common point of agreement that the issue would stand restored back to the file of Ld. AO for readjudication as per decision of the Tribunal for AYs 2011-12 2012-13 wherein the matter was restored back with certain directions. Similar directions were given in order for AY 2010-11, ITA No. 3739/Mum/2016 order dated 08/06/2018 which are as under: - 12. We have considered rival submissions and perused materials on record. As could be seen, identical issue arose in assessee s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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