2015 (5) TMI 1169

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.... relying on the decision of the Hon'ble Bombay High Court in the case of Kotak Securities which held such payments as 'fees for technical services' failed to take note of the fact that even though such payments are held to be subjected to TDS, the 1-lonhie high Court did not approve disallowance u/s 40(1) (ia) on the ground of the disputed nature of the issue. c) The learned CIT (A) failed to take note of the fact that the provisions of section 194J and 40(i)(1a) are two distinct and independent provisions and application of the provision does not necessary involve application of disallowance provision U/S 40(i)(ia). By holding the provisions of section 40(i)(1a) not applicable to the assessment year 2005-06 which was the yea....

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....e Act. Assessing Officer (AO) completed the assessment u/s.143(3) of the Act on, determining the income of the assessee at (-) Rs. 15.89 crores. 2.Effective ground of appeal is about disallowance made u/s. 40(a)(ia) of the Act. During the assessment proceedings, the AO found that the assessee had claimed BSE charges, NSE charges and transaction charges as per the detail given below:- (i) BSE Charges Rs.3,90,508/- (ii) NSE Charges Rs.6,69,874/- (iii) Transaction Charges Rs.33,29,423/-   Total Rs.43,89,805/- He found that the assessee has not deducted tax at source for the above mentioned charges. The assessee, in this regard, submitted that the above charges were not fees for technical services,....

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....e return of income was filed by the assessee long before the decision of the Hon'ble High Court was pronounced. Departmental Representative (DR) left the issue to the discretion of the Bench. 5.We have heard the rival submissions and perused the material before us. We find that while adjudicating the appeal for AY 2008-09 in assessee's own case in (ITA No.618/Mum2012) dt. 18/2/2015), the Tribunal has held as under :- "7. Ground No.2 is in relation to the disallowance made under section 40(a)(ia) of the Act in respect of payments made to Bombay Stock Exchange. We find that this issue is squarely covered in favour of the assessee and against the Revenue except that the transaction charges have been considered to be subject to TDS by the....