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TMI Blog2013 (6) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RT-DEDUCTION - Table 1:- Sl. No. Head of expenses Name Total Tax deducted Total payment Rate at which tax should have been deducted (%) Actual amt. on which tax deducted Amount on which tax not deducted (i) (ii) (iii) (iv) (v) (vi) (vii) (iv/vix 100) (viii) (v-vii) 1 Professional Sanjay Sawant 450 62,000 5.61 8,021 53,979 2 Location Expenses Aram Studio 20810 750,000 22.44 92,736 657,264 3 Property hire Stage Star Multimedia 60480 2,700,000 22.44 269,519 2,430,481 4 Stu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 76 3 Filmistan Studio Hire 2,15,397 -- 2,15,397 4 Ranveer Editor fees 48,000 -- 48,000 5 Anuradha 75,980 -- 75,980 6 Preeta Artist fees 27,000 -- 27,000 Total 8,96,743 3. Resultantly disallowance was made u/s 40(a)(ia) for Rs. 71,30,633/- (Rs. 62,33,890 for short deduction and Rs. 8,96,743/- for non-deduction of tax at source). The Ld. CIT(A) entertained some additional evidence. On that basis, he deleted certain disallowances and confirmed the remaining. 4. First ground of the assessee's appeal is against the confirmation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Vs. DCIT (2012) 54 SOT 596 (Delhi) and DCIT Vs. Tekriwal (2011) 48 SOT 515 (Kolkata). It has been brought to our notice that the above referred order passed by the Kolkata Bench of the Tribunal has been upheld by the Hon'ble Calcutta High Court in CIT Vs. S.K. Tekriwal vide its judgment dated 03.12.2012. A copy of the said judgment has been placed on record. In all these cases, it has been held that provision of section 40(a)(ia) do not apply in case of short fall in the deduction of tax at source. No contrary precedent has been brought to our notice by the Ld. Departmental Representative. Respectfully following the above referred cases, we hold that the Ld. CIT(A) was not justified in sustaining disallowance u/s 40(a)(ia) in respect of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emporary basis. What to talk of furnishing complete details, the assessee did not give even complete identification of these three persons before the authorities below. The position continues to remain the same before us as well. There is no denying the fact that the assessee did not deduct any tax at source from these payments. Since these payments are in the nature of fees for professional and technical services requiring deduction of tax at source 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). This ground is therefore, not allowed. 8. Ground Nos. 1 and 4 of the Revenue's appeal are against the deletion of addition on acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot submitted before the AO. It is noticed from the impugned order that the Ld. 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. We order accordingly and direct the AO to decide this issue afresh in the light of additional evidence placed before the Ld. CIT(A). Needless to say, the assessee will be at liberty to file any other fresh evidence during the course of such proceedings. 10. In the result the assessee's appeal is partly allowed and that of the revenue is partly allowed for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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