2019 (9) TMI 541 - AT - Income Tax

Disallowance u/s. 40(a)(ia) for want of deduction of tax at source as per statutory provisions - deduction of TDS at 2% instead of 10% - HELD THAT - Assessee has suffered impugned disallowance u/s 40(a)(ia) for want of deduction of tax at source at higher rate i.e. 10%. It is undisputed fact that the assessee has deducted tax @2% and the additions have been made for short-deduction of tax as per 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. 2018 (2) TMI 1923 - ITAT MUMBAI wherein the co-ordinate bench after considering various decisions decided the issue in assessee s favour.

Summary

Issues:
1. Disallowance under section 40(a)(ia) for short deduction of tax.
2. Interpretation of Section 40(a)(ia) regarding tax deduction at source under Chapter XVII-B.

Issue 1: Disallowance under section 40(a)(ia) for short deduction of tax:
The appeal contested the order of the Ld. Commissioner of Income-Tax (Appeals) for Assessment Year 2012-13 regarding the disallowance under section 40(a)(ia). The disallowance was related to the deduction of tax at source at a lower rate (2%) instead of the required higher rate (10%) under section 194J. The appellant argued that the disallowance should not apply for short deduction of tax based on various judicial pronouncements. The Ld. first appellate authority agreed with the appellant's alternative plea, citing precedents where it was held that section 40(a)(ia) does not apply in cases of short deduction of tax. The authority referred to judgments by the Mumbai ITAT, Kolkata High Court, and other tribunals to support the decision to delete the disallowance.

Issue 2: Interpretation of Section 40(a)(ia) regarding tax deduction at source under Chapter XVII-B:
The Ld. AO had disallowed the expenditure of carriage fees under section 40(a)(ia) due to the lower deduction of tax at source. The appellant contended that the disallowance was not applicable as tax had been deducted under a different section. The Ld. first appellate authority agreed with the appellant, emphasizing that the disallowance was not for 'no TDS' but 'less TDS'. The authority relied on decisions by the Calcutta High Court, Mumbai ITAT, and other courts to support the view that in cases of differences in taxability or nature of payments under TDS provisions, disallowance under section 40(a)(ia) should not be made. The Tribunal confirmed the stand of the first appellate authority based on the judgments cited and dismissed the appeal.

In conclusion, the judgment by the Appellate Tribunal ITAT Mumbai addressed the issues of disallowance under section 40(a)(ia) for short deduction of tax and the interpretation of the section concerning tax deduction at source under Chapter XVII-B. The decision was based on a thorough analysis of relevant legal provisions, judicial precedents, and the specific facts of the case.