2013 (6) TMI 460 - AT - Income Tax

Disallowance was made u/s 40(a)(ia) - short deduction of TDS - 194C v/s 194I - Held that - This issue is no more res integra in view of several orders passed by various benches of the Tribunal holding that short-deduction of tax at source cannot lead to disallowance u/s 40(a)(ia). See U.E. Trade Corporation (India) Ltd. Vs. DCIT (2012 (8) TMI 700 - ITAT DELHI) and DCIT Vs. Tekriwal (2011 (10) TMI 10 - ITAT, KOLKATA) upheld by the Hon ble Calcutta High Court in 2012 (12) TMI 873 - CALCUTTA HIGH COURT to held that provision of section 40(a)(ia) do not apply in case of short fall in the deduction of tax at source. In favour of assessee. Non deduction of TDS - Held that - The nature of payments made are in the category of professional and technical services. The assessee has placed no material on record to prove that these were small time employees engaged on temporary basis & no complete identification of these three persons before the authorities below. There is no denying the fact that the assessee did not deduct any tax at source from these payments u/s 194J, the act of the assessee in making these payments without deduction of tax at source, clearly brought this case within the mischief of section 40(a)(ia). Against assessee. Payment of location expenses & property hire charges - CIT(A) deleted the addition - Held that - These amounts were paid by the assessee after deduction of tax at source but at lower than the eligible rate. Thus considering ground 1 no disallowance u/s 40(a)(ia) do not apply in case of short fall in the deduction of tax at source. In favour of assessee. Payment made of Set Construction Expenses - CIT(A) deleted the addition admitting fresh evidence - Held that - The impugned order that the CIT(A) did not call for any remand report from the AO before admission of this additional evidence. In our considered opinion, the ends of justice would meet adequately if the impugned order on this issue is set aside and the matter is restored to the file of AO for making a proper verification in this regard. In favour of revenue for statistical purposes.

Issues Involved:
1. Disallowance under Section 40(a)(ia) for short deduction of tax at source.
2. Disallowance under Section 40(a)(ia) for non-deduction of tax at source.
3. Deletion of addition on account of payment of location expenses, property hire charges, and studio hire charges.
4. Deletion of addition towards payment made to Saroj Traders on account of set construction expenses.
5. Admission of fresh evidence by CIT(A) without confronting the same to the AO.

Detailed Analysis:

1. Disallowance under Section 40(a)(ia) for short deduction of tax at source:
The assessee's appeal contested the disallowance under Section 40(a)(ia) for short deduction of tax at source on various payments, including those made to professionals and for equipment hire. The Tribunal noted that the issue of whether short deduction of tax at source can lead to disallowance under Section 40(a)(ia) is well-settled. Citing precedents such as U.E. Trade Corporation (India) Ltd. Vs. DCIT and DCIT Vs. Tekriwal, the Tribunal held that short deduction does not attract disallowance under Section 40(a)(ia). Consequently, the disallowance for short deduction was not upheld, and the assessee's appeal on this ground was allowed.

2. Disallowance under Section 40(a)(ia) for non-deduction of tax at source:
The assessee's appeal also challenged the disallowance for non-deduction of tax at source on payments made to certain individuals for editor and artist fees. The CIT(A) had confirmed the disallowance, noting that these payments required deduction under Section 194J as they were for professional and technical services. The Tribunal found that the assessee failed to provide sufficient evidence to classify these individuals as temporary employees. Given the nature of the payments and the lack of tax deduction, the Tribunal upheld the disallowance under Section 40(a)(ia) for these amounts.

3. Deletion of addition on account of payment of location expenses, property hire charges, and studio hire charges:
The Revenue's appeal contested the deletion of additions for payments made to Aaram Studio and Stage Star Multimedia, arguing that tax was deducted at a lower rate. The Tribunal referred to its earlier decision on the assessee's appeal regarding short deduction, reiterating that short deduction does not lead to disallowance under Section 40(a)(ia). Consequently, the Tribunal upheld the CIT(A)'s decision to delete these additions.

4. Deletion of addition towards payment made to Saroj Traders on account of set construction expenses:
The Revenue challenged the deletion of the addition for payments made to Saroj Traders, arguing that no tax was deducted at source. The CIT(A) had deleted the disallowance based on additional evidence showing that the payments were for purchases related to set construction. The Tribunal noted that this evidence was not presented to the AO and that the CIT(A) did not obtain a remand report. To ensure justice, the Tribunal set aside the CIT(A)'s order on this issue and remanded the matter back to the AO for verification of the additional evidence.

5. Admission of fresh evidence by CIT(A) without confronting the same to the AO:
The Revenue's appeal included a ground against the CIT(A) admitting fresh evidence without confronting it to the AO. The Tribunal addressed this issue in the context of the payment to Saroj Traders, remanding the matter to the AO for proper verification. This approach ensures that the AO has the opportunity to examine the additional evidence, thus addressing the Revenue's concern about the admission of fresh evidence.

Conclusion:
The Tribunal allowed the assessee's appeal partly, specifically on the issue of short deduction of tax at source, and upheld the disallowance for non-deduction of tax at source. The Revenue's appeal was partly allowed for statistical purposes, with the matter regarding payment to Saroj Traders remanded to the AO for further verification. The Tribunal's order was pronounced in the open court on June 7, 2013.

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