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2016 (5) TMI 533 - AT - Income TaxTDS u/s 194H - short deduction of TDS on provision for commission and brokerage made - disallowance u/s 40(a)(ia) - Held that - Section 40(a) (ia) of the Act contents two wings i.e. non deduction and non deposit of TDS and it renders only the duty to deduct the tax and to pay to government account. And if there is any shortfall due to any difference of opinion as to taxable of any item or to the nature of payment falling under various TDS provisions, then the provisions of section 40(a) (ia) of the Act are not attracted no disallowance can be made u/s 40(a) (ia). See COMMISSIONER OF INCOME TAX, KOLKATA-XI Versus M/s SK. TEKRIWAL 2012 (12) TMI 873 - CALCUTTA HIGH COURT Thus in this case since there is dispute of short deposit and not a dispute of non deposit therefore, the provisions of section 40(a) (ia) are not applicable and the disallowance made by the AO and confirmed by the CIT(A) are not sustainable in the eyes of the law - Decided in favour of assessee
Issues:
1. Disallowance of adhoc provision for commission and brokerage under section 40(a)(ia) 2. Disallowance of payments towards commission and brokerage due to short deduction of TDS 3. Interpretation of section 40(a)(ia) regarding non-deduction vs. short deduction of TDS Analysis: Issue 1: Disallowance of adhoc provision for commission and brokerage under section 40(a)(ia) The appellant contested the disallowance of adhoc provision for commission and brokerage amounting to ?6,00,000 under section 40(a)(ia) for non-deduction of TDS. The appellant argued that section 194H does not apply to adhoc provisions made in financials as the amounts were not credited to any person. The appellant maintained that the addition was adhoc and against established legal principles. However, the CIT(A) confirmed the disallowance. The tribunal dismissed ground 1 as not pressed by the appellant. Issue 2: Disallowance of payments towards commission and brokerage due to short deduction of TDS The appellant challenged the disallowance of ?6,38,961 for payments towards commission and brokerage due to short deduction of TDS. The appellant contended that the provisions of section 40(a)(ia) apply to non-deduction of TDS, not to short deduction. The appellant provided details of the TDS deductions made and deposited with the government. The CIT(A) upheld the disallowance, misinterpreting the application of section 40(a)(ia). Issue 3: Interpretation of section 40(a)(ia) regarding non-deduction vs. short deduction of TDS The tribunal analyzed the CIT(A)'s decision and found that the provision of section 40(a)(ia) applies only to cases of non-deduction and non-deposit of TDS. Citing relevant judgments, the tribunal emphasized that if there is a shortfall due to a difference of opinion on taxability or nature of payments falling under TDS provisions, no disallowance can be made under section 40(a)(ia). In this case, as there was a dispute over short deposit, not non-deposit, the tribunal concluded that the disallowance was not sustainable. Therefore, the tribunal allowed the appeal, directing the AO to delete the disallowance. In conclusion, the tribunal ruled in favor of the appellant, setting aside the disallowances made by the AO and confirmed by the CIT(A) regarding adhoc provision and payments towards commission and brokerage, based on the interpretation of section 40(a)(ia) in the context of non-deduction vs. short deduction of TDS.
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