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TMI Blog2020 (4) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... l high court s decision in Commissioner of Income Tax vs. S.K. Tekriwal [2012 (12) TMI 873 - CALCUTTA HIGH COURT ] holds that the impugned disallowance u/s 40(a)(ia) does not apply in a case involving short deduction of TDS. We therefore go by the very reasoning and direct the Assessing Officer to delete the impugned disallowance. - Decided in favour of assessee. - ITA No.665/Kol/2018 - - - Dated:- 19-2-2020 - Shri S.S.Godara, Judicial Member And Dr. A.L. Saini, Accountant Member For the Appellant : None For the Respondent : Shri Dhrubajyoti Ray, JCIT-DR ORDER PER S.S.GODARA, JUDICIAL MEMBER :- This assessee s appeal for assessment year 2009-10 arises against the Commissioner of Income Tax-14, Kolkata s ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self on and validity and legality of the amount framed u/s 143(3)/154/r.w147 has also challenged. A copy of the acknowledgement is enclosed. C. Further, a Stay Petition has also been filed before the A.O. requesting to keep the impugned demand in abeyance till the appeal preferred before your honour be disposed off and not to treat the assessee to be at fault in not spaying the impugned demand. D. Without prejudice to the aforesaid contentions the following further submission preferred before your kindself. 1. It may be pertinent to note that, the Income for all the assessment years have been assessed at a more than two (2) times - than the returned Income. In this connection your kindself's attention is drawn to the instruc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s stay petition was set aside. B. The question which came up for consideration before the Hon'ble High Court. in the case of Ganjana Agencies Vs. ITO Ors. Reported in 210 ITR 865 (Ker) was whether the ITO was justified in directing the assessee to make payment to the tax demanded in the instalments. The Hon'ble High Court at Kerala has held that the AO as not justified as grant of. Instilments is only another mode of recovery and not an order u/s. 220 6). Accordingly, the AC was directed to stay the recovery of the remand. till the disposal of the appeal. Following the aforesaid decision of the Hon'ble High Court at Kerala (supra) it is requested before your kindself to kindly keep the recovery of the impugned de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man . Based on a joint reading of the principles as laid down by the aforesaid two decisions of the Hon'ble High Court at Calcutta (supra), as prudent and reasonable Tax Officer , it is requested before your kindself, to stay of- the recovery of demand till the matters are disposed off by the learned CIT(A). The Hon'ble High Court at Kerala, while rendering the judgment, in the case of Rajan Nair Vs. ITO Another, reported in 165 ITR 650 (Ker). has held that the powers conferred upon the AC u/s. 220 (6) is discretionary though coupled with a duty, which is to be exercised judiciously and reasonable, based on relevant grounds. The Learned Court further held that the ITO has to act as a quasi-judicial authority and not as a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserves that the appellant was liable to deduct TDS of ₹ 4,08,954 under section 194C of the Income Tax Act from the total expenditure of ₹ 2,08,88,541 relating to can outwards, labour charges, car hire charges, security charges, advertisement and office decoration charges. However, deduction was made only of ₹ 1,61,856 resulting in short deduction of rupees 2,47,098. Therefore, the proceeded to disallow the sum of ₹ 19,95,048 under section 40(a)(ia) respect of which no TDS was deducted. During the appellate proceedings the AR of the appellant submits that TDS was deducted at a lower rate and hence provisions of section 40(a)(ia) are not applicable in respect of the appellant. Appellant's contentions were carefull ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s grounds therefore, fail and the appeal is dismissed. 3. It is sufficiently clear from a perusal of the foregoing lower appellate discussion that this is not an instance of non-deduction of TDS per se. Learned departmental representative fails to dispute that gong by the Assessing Officer s detailed discussion in pages 2 to 3 in his assessment order dated 07.01.2016, the assessee had indeed deducted TDS u/s.194C albeit at a lesser rate followed by three other head(s) of 194-H, 194-I and 194- J involving nil deduction. And also that the Assessing Officer had disallowed the impugned sum under the first head only. We observe in this factual backdrop that hon'ble jurisdictional high court s decision in Commissioner of Income Tax v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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