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2019 (10) TMI 241 - AT - Income TaxDisallowance u/s 40(a)(ia) - short deduction of TDS on foreign payments - Instead of 20% as opined by the ld. AO, assessee effected the TDS at 4.22% on the payment - HELD THAT - In the case of S.K. Tekriwal 2012 (12) TMI 873 - CALCUTTA HIGH COURT Hon ble High Court held that in the case of shortfall in deduction due to any difference of opinion as to the taxability of any item or nature of payments falling under various TDS provisions, the proper course for the revenue is to declare the assessee as an assessee in default u/s 201 of the Act but no disallowance can be made by invoking the provisions of Section 40(a)(ia) of the Act. In these circumstances, while respectfully following the said decision, we hold that it is not open for the revenue to disallow any amount u/s 40(a)(ia) of the Act and the addition is directed to be deleted. - Decided in favour of assessee.
Issues:
1. Disallowance of TDS under section 40(a)(ia) by the Assessing Officer. 2. Confirmation of disallowance by the Commissioner of Income-tax (Appeals). 3. Challenge by the assessee before the Appellate Tribunal. 4. Interpretation of the decision in the case of S.K. Tekriwal by the Appellate Tribunal. 5. Adjudication on the grounds of appeal regarding the disallowance of TDS. Analysis: The Appellate Tribunal was presented with an appeal challenging the disallowance of ?39,38,400 made by the Assessing Officer under section 40(a)(ia) of the Income-tax Act, 1961. The Assessing Officer found that the assessee had made a short deduction of TDS on foreign payments, leading to the disallowance. The Commissioner of Income-tax (Appeals) upheld this disallowance, prompting the assessee to appeal further. The Appellate Tribunal noted that the issue at hand was not non-deduction but short deduction of TDS on foreign payments, where the TDS was deducted at 4.22% instead of the required 20%. The assessee relied on the decision of the Calcutta High Court in the case of S.K. Tekriwal, arguing that in cases of shortfall in deduction due to differences in taxability opinions, the revenue should declare the assessee as defaulting under section 201 of the Act, rather than making disallowances under section 40(a)(ia). The Tribunal, following the decision in S.K. Tekriwal, concluded that the revenue cannot disallow any amount under section 40(a)(ia) in such cases and directed the addition to be deleted, thereby allowing the appeal of the assessee. The Tribunal emphasized that the proper course for the revenue in cases of shortfall in TDS deduction due to differences in taxability opinions is to declare the assessee as an assessee in default under section 201 of the Act. The decision in the case of S.K. Tekriwal clarified that disallowances under section 40(a)(ia) cannot be made in such circumstances. The Tribunal, in line with this interpretation, held that the revenue was not permitted to disallow the amount under section 40(a)(ia) and ordered the deletion of the addition. The appeal of the assessee was allowed by the Tribunal, setting aside the disallowance made by the lower authorities. In conclusion, the Appellate Tribunal, after a detailed analysis of the facts and legal precedents, allowed the appeal of the assessee by directing the deletion of the disallowance of TDS under section 40(a)(ia). The Tribunal's decision was based on the interpretation of the relevant legal provisions and the application of the principles established in the case law, particularly the decision in S.K. Tekriwal, which guided the Tribunal's ruling in favor of the assessee.
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