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TMI Blog2019 (9) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... rred in directing to delete the disallowance u/s. 40(a)(ia) and thereby holding that the short deduction of tax will not result into disallowance u/s. 40(a)(ia) of the Act, without appreciating that the Hon'ble Kerala High Court in its judgment dated 20.07.2015 in the case of CIT-1, Kochi Vs. PVS Memorial Hospital Ltd. [2015] 60 taxmann.com 69 (Kerala) has clearly laid down that the disallowance u/s. 40(a)(ia) would be made even in the cases of short deduction of tax. 2. Whether on the facts, in the circumstances of the case and as per law, the Ld.CIT(A) has erred in directing to delete the disallowance u/s. 40(a)(ia) without appreciating that Section 40(a)(ia) is into a charging Section but is a machinery Section and thus the express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2% u/s. 194C. However, the Ld. AO opined that the same being technical services attracted higher TDS @10% u/s 194J and therefore, disallowance as envisaged by Section 40(a)(ia) was attracted to the facts of the case. Although the assessee defended his stand vide reply dated 02/12/2014 and supported the same with various judicial pronouncements, however, Ld. AO noted that carriage fee were the charges paid by the broadcaster to MSO (Multi System Operators) to transmit their channels and hence these charges constituted process, being covered in the definition of royalty as contained in subclause (v) to explanation 2 to Section 9(1). Resultantly, the said expenditure was disallowed u/s 40(a)(ia) for want of deduction of higher tax at source u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... works Pvt Ltd. ITA No.: 1382/M/2014, relying on the decision of Hon'ble Calcutta High Court in case of S. K. Tekriwal held that section 40(a)(ia) of the ITA applies only in the event of non deduction of tax but not for lesser deduction of tax. It is further seen that in their decision, the Hon'ble Tribunal in the case of M/s Hindustan Thompson Associates Pvt. Ltd. for A.Yr. 2010-11 in ITA NO. 6729/Mum/2014 at Para 5 have held as under: "We have heard the rival contentions and perused the orders of the authorities below and the decision of the Co-ordinate Bench in assessee's own case for A.Yr. 2008-09 and 2009-10. The Coordinate Bench for the A.Yr. 2009-10 in of the I.T, Act, 1961 No. 746/M/2014 dated 19.02.2016 considered simi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her High Court on the point, because not to follow that decision would be to cause grave prejudice to the assessee. Where there is a conflict between different High Courts, he must follow the decision of the High Court within whose jurisdiction he is (functioning), but if the conflict is between decisions of other High Courts, he must take the view which is in favour of the assessee and not against him. Similarly, if the Tribunal has decided a point in favour of the assessee, he cannot ignore the decision and take a contrary view, because that would equally prejudice the assessee". Considering the above, we are taking the view which is in favour of the assessee. We, are following the judgement of Samir Tekriwal (supra) of the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce u/s 40(a)(ia) for want of deduction of tax at source at higher rate i.e. 10%. It is undisputed fact that the assessee has deducted tax @2% and the additions have been made for short-deduction of tax as per Section 40(a)(ia). We find that the facts of the present case are squarely covered by the cited decision of this Tribunal rendered in ACIT Vs. M/s T.V.Vision Ltd. [supra] wherein the co-ordinate bench, after considering various decisions, decided the issue in assessee's favor, in the following manner:- 7. We notice that the Ld. CIT(A) has deleted the disallowance in question holding that carriage fees does not come within the ambit of the definition of Royalty. Therefore, the assessee was not required to deduct the tax at source u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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