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2012 (5) TMI 499 - AT - Income TaxTDS u/s 194C - Liability of Individual / HUF - receipt from its cable network subscribers - Disallowance u/s 40(a) (ia) - Circular No.715 dated 8/08/1995 - applicability of provisions of sub-section (2) of section 194C of the Act. - held that - In the case of the assessee since the assessee paid the amount to M/s. Devshree Network Pvt. Ltd. For giving cable transmission, therefore, the assessee is a person responsible for paying the sum in question to the contractor . The contractor in this case thus would be M/s. Devshree Network Pvt. Ltd. For applying the provisions of section 194 C (1) of the IT Act the contract should be between the contractor and the parties as per the list given from (a) to (j) of section 194 C (1) of the IT Act as per the provisions applicable to the assessment year under appeal in which sub-clause (k) being the individual do not find mention. Thus, in the assessment year under appeal, the contract between the contractor and individual would not cast any obligation on the individual to deduct TDS on the payment made to the contractor. Since in this case, payment is made by the assessee to M/s. Devshree Network Pvt. Ltd. for providing cable transmission, therefore, no other person is involved in the transaction/oral contract. Thus, the assessee did not act as a sub-contractor in this case. Assessee is not liable to deduct TDS - Decided in favor of assessee.
Issues Involved:
1. Disallowance under section 40(a)(ia) read with section 194C(2) of the IT Act. 2. Applicability of TDS provisions to individuals for the assessment year 2006-07. 3. Distinction between contractors and sub-contractors. 4. Interpretation of "payable" vs. "paid" amounts under section 40(a)(ia). Detailed Analysis: 1. Disallowance under section 40(a)(ia) read with section 194C(2) of the IT Act: The primary issue revolves around the disallowance of Rs. 33,27,188/- under section 40(a)(ia) read with section 194C(2) of the IT Act. The Assessing Officer (AO) argued that the assessee, in his proprietary capacity of Balaji Cable Network, made a contract with Devshree Network Pvt. Ltd. for cable transmission services. Since the payment was made as contract charges, TDS should have been deducted under section 194C(2). However, the assessee did not deduct TDS, leading to the disallowance. 2. Applicability of TDS provisions to individuals for the assessment year 2006-07: The assessee contended that the provisions of section 194C(1) were applicable only from 01-06-2007 and that the case pertained to the period 01-04-2005 to 31-03-2006. The argument was that for the assessment year under appeal, individuals were not liable to deduct TDS. The CIT(A) dismissed this argument, stating that even before the 2007 amendment, individuals exceeding the monetary limits specified under section 44AB were liable to deduct TDS under the proviso inserted by the Finance Act, 2002. 3. Distinction between contractors and sub-contractors: The CIT(A) and the AO considered Devshree Network Pvt. Ltd. as the contractor and the assessee as a sub-contractor. However, the assessee argued that there was no formal contract and the payment was made based on an oral agreement. The CIT(A) maintained that both the appellant and Devshree Network were subcontractors of a larger network, thus liable for TDS. The Tribunal, however, found that the assessee was not acting as a sub-contractor and that the provisions of section 194C(1) and (2) did not apply to the assessee for the assessment year in question. 4. Interpretation of "payable" vs. "paid" amounts under section 40(a)(ia): The assessee argued that section 40(a)(ia) applies to amounts payable and not to amounts already paid, thus the expenditure paid could not be disallowed. The CIT(A) rejected this argument, stating that the term "payable" includes "paid" and that TDS should be deducted as and when amounts are paid to contractors. The Tribunal, however, did not delve deeply into this argument as it concluded that the provisions of section 194C did not apply to the assessee for the assessment year under appeal. Conclusion: The Tribunal concluded that the provisions of section 194C(1) and (2) did not apply to the assessee for the assessment year 2006-07. The assessee, being an individual, was not liable to deduct TDS on the payment made to Devshree Network Pvt. Ltd. The Tribunal set aside the orders of the authorities below and deleted the addition of Rs. 33,27,188/-. Final Order: The appeal of the assessee was allowed, and the addition was deleted.
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