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TMI Blog2020 (9) TMI 1151X X X X Extracts X X X X X X X X Extracts X X X X ..... .Y. 2013-14. 2. Assessee has raised following common grounds except for figures which are as under: - "Disallowance under section 40(a)(ia) of the Act of short deduction of tax at source 1. On the facts, and in the circumstances of the case, and in law, the learned CIT(A) erred in disallowing an amounting of INR 7,861,627/- under section 40(a)(ia) of the Act by overlooking the fact that the provisions of section 40(a)(ia) of the Act are attracted in case of non-deduction of tax, but not in case of short deduction of tax at source. 2. On the facts, and in the circumstances of the case, and in law, the learned CIT(A) erred in deleting the disallowance under section 40(a)(ia) of the Act, whereas the jurisdictional Hon'ble Mumbai Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see has made short deduction of TDS, Assessing Officer invoking provisions of section 40(a)(ia) of the Act and disallowed entire salary payments amounting to Rs..78,61,627/-. On appeal Ld.CIT(A) sustained the disallowance made by the Assessing Officer. 5. Learned Counsel for the assessee submitted that, this is a case of short deduction of TDS and not non-deduction of TDS and in case of short deduction of TDS the provisions of section 40(a)(ia) of the Act have no application. Reliance was placed on the following decisions in support of his contentions: - (i) DCIT v. Chandabhoy and Jassobhoy - ITAT Mumbai (ii) Dish TV India Ltd. v. ACIT dated 10.10.2017 (ITAT, Mumbai) (iii) CIT v. S.K. Tekriwal [361 ITR 432 (Cal)] 6. Ld. DR vehementl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0(a)(ia) of the Act treating these payments as Royalty. 3 On appeal the Ld.CIT(A) following the decision of the Mumbai Bench in the case of DCT v. Cox & Kings (I) Ltd & Anr [160 DTR 201] and Dish TV Indai Ltd v. ACIT [159 DTR 257] deleted the disallowance made u/s.40(a)(ia) of the Act. In these decisions the Coordinate Bench held that when there is a short deduction of TDS there cannot be any disallowance u/s.40(a)(ia) of the Act. 4. Ld. DR strongly supported the orders of the Assessing Officer and the Ld. Counsel for the assessee placed reliance on the decisions of the Tribunal particularly in the case of ACIT v. Hindustan Thompson Associated Pvt. Ltd., in ITA.No. 6729/Mum/2014 dated 13.07.2016 and ACIT v. M/s. UBJ Brodcasting Pvt. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 judgments.Here,we would also like to reproduce the a portion of the judgment delivered by the Hon'ble Bombay High Court in the case of Siemens India Ltd.(156ITR11) and same reads as under : "So far as the legal position is concerned, the ITO would be bound by a decision of the Supreme Court as also by a decision of the High Court of the State within whose jurisdiction he is (functioning), irrespective of the pendency of any appeal or special leave application against that judgment. He would equally be bound by a decision of another High Court on the point, because not to follow that de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 40(a)(ia). We find that the facts of the present case are squarely covered by the cited decision of this Tribunal rendered in ACIT Vs. M/s T.V.Vision Ltd. [supra] wherein the co-ordinate bench, after considering various decisions, decided the issue in assessee's favor, in the following manner:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, this is a case of short deduction of TDS. Thus, respectfully following the said decisions, we uphold the order of the Ld.CIT(A) and reject the ground raised by the revenue. 8. In the result appeals of the revenue are dismissed." 9. Undoubtedly in the appeals before us the Assessing Officer made disallowance on the ground that assessee made short deduction of TDS. Therefore, this decision squarely applicable to the facts of the case. Respectfully following the said decision, we delete the disallowance made u/s. 40(a)(ia) of the Act. 10. At the time of hearing Ld. Counsel for the assessee submitted that Ground No.3 of grounds of appeal and also the additional grounds filed are not pressed. Thus, Ground No.3 of regular grounds and a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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