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TMI Blog2021 (7) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... o not find any infirmity in the direction of the CIT - A. With respect to the claim of the assessee that there is only a short deduction of tax and the disallowance can only be made for non-deduction of tax at source we find that issue squarely covered in favour of the assessee by the decision of the honourable Calcutta High Court in CIT v. SK Tekriwal 2012 (12) TMI 873 - CALCUTTA HIGH COURT However, it is a matter of investigation and verification that whether it is a short deduction of tax or non-deduction of tax at source. For this reason, we set aside the whole issue back to the file of the learned assessing officer with a direction to verify and if it is found that there is a shorter deduction of tax and not non-deduction of tax, the disallowance may be deleted. Accordingly, ground number 5 of the appeal is also allowed for statistical purposes. - ITA No. 3997/Del/2017 - - - Dated:- 6-7-2021 - Amit Shukla, Member (J) And Prashant Maharishi, Member (A) For the Appellant : Ved Jain, Adv. For the Respondents : Pramita M. Biswas, CIT, DR ORDER Per Prashant Maharishi, AM 1. This is an appeal filed by the assessee Mahanagar Telephone Nigam Ltd. against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax and not for short deduction. 6. On the facts and circumstances of the case, the learned Commissioner of Income Tax (Appeals) [CIT(A)] has erred, both on facts and in law, in directing the AO to verify payment of TDS in respect of amount of ₹ 12,80,400/-. 3. Facts of the case are that assessee is engaged in the business of providing basic telephone and mobile services in the city of Delhi and Mumbai. It is a government of India public sector undertaking and major player in the country in Telephone services. It has also hostel of other services like Internet service provider services, integrated service digital network services, multimedia services, paging services and other value added services and to carry on the business of telephone, telegraph cable and wireless company. It is also engaged in providing telecommunication services like Internet; eat entering, cyber cover services and sale of Internet service provider tax et cetera. 4. It filed its return of income on 28/9/2012 declaring total loss of ₹ 26,470,268,833/-. Notice u/s. 143(2) of the act was issued on 8/8/2013. The learned assessing officer made an addition of ₹ 4,111,348/- being in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability, which is definite, and hence the same is entitled for deduction as an expenditure u/s. 37 of the act. The learned AO considered the explanation of the assessee and held that the deposit amount has been held as not payable in the assessment order for assessment year 2006 - 07 as in that year the world amount of deposit was held to be the owner fund of the assessee and added to the total income of the assessee. Hence, any interest that accrues on the said amount is assessee's own income and liable to taxed in his hands. He further held that as the learned CIT - A in the assessment year 2006 - 07 has deleted the entire amount so added except to the extent of ₹ 1,276,983,720/- which also is disputed by it before the ITAT and revenue has also filed an appeal before the tribunal. Even otherwise the learned AO held that even if the deposit is held to be customers deposit and not of the assessee is fund the income there from would still be liable to be taxed in the hence of the assessee. Thus he made an addition of ₹ 4,111,348/-. The learned CIT - A As per ground number 2 decided this issue following his own order for assessment year 2011 - 12 and he reduced the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l contentions and perused the orders of the lower authorities. It has been categorically mentioned by the learned assessing officer that there is no exempt income and by the assessee during the year. In absence of any exempt income the disallowance u/s. 14A of the act cannot be made as has been held by the honorable Delhi High Court income in Cheminvest Ltd. v. Commissioner of income tax 378 ITR 33. Therefore, we direct the learned assessing officer to delete the disallowance of ₹ 1,79,15,000 u/s. 14A of the act. Accordingly, ground number 4 of the appeal is allowed. 14. Ground number 5 is with respect to confirmation of the disallowance of ₹ 7,002,000 by the learned CIT - A invoking the provisions of Section 40(a)(ia) of the act. The learned assessing officer during the course of assessment proceedings found from the verification of the individual transaction statement for the assessment year 2012 - 13 that there was a shorter deduction and payment of tax deduction at source amounting to ₹ 4,994,060/-. The assessee explained that tax deduction at source short deductions are majorly due to clerical/typographical errors for mentioning of the wrong the permanent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in case of shorter deduction of tax no disallowance can be made in view of the decision of the honourable Calcutta High Court in case of CIT v. S.K. TEKRIWAL [2014] 361 ITR 432 (Cal). He therefore submitted that there cannot be any disallowance. 16. The learned departmental representative submitted that it is not the case of short deduction of tax at source but it is a case of non-deduction of tax at source and therefore the decisions cited by the learned authorized representative does not apply. 17. We have carefully considered the rival contention and perused the orders of the lower authorities. The ground number 6 is with respect to the verification by the learned assessing officer directed by the learned CIT - A. We find that he has given a correct direction if the tax deduction at source is deposited before the due date of filing of the return of income that no disallowance can be made. Otherwise, the disallowance is correctly made. We do not find any infirmity with such direction as it is purely a factual matter, which needs to be verified. Before us no evidences have been produced that the about tax has been deposited before the due date of filing of the returned b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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