TaxTMI 
TaxTMI 
2018 (11) TMI 1959
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..... 2. The ld. A/R of the assessee has submitted that the assessee has paid the interest of Rs. 5,72,923/- to M/s. Blue Star Home Finance Ltd. which was subsequently known as Deewan Housing Finance Corporation Ltd. (DHFCL). Since the recipient of interest has included the said amount in the total income and filed the return of income, therefore, in view of the second proviso to section 40(a)(ia) of the IT Act no disallowance is called for. In support of his contention, he has relied upon the decisions of the Coordinate Bench of this Tribunal in the case of ACIT vs. Girdhari Lal Bargoti in ITA No. 757/JP/2012 dated 10.4.2014 and in the case of ACIT vs. M/s. Vastuvedik Colonizers & Developers in ITA No. 320/JP/2015 dated 24.10.2018. The ld. A/....
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.... applicable in respect of the said payment made under sub-contract, then even if the AO did not accept this decision of the assessee, the provisions of section 40(a)(ia) cannot be invoked due to the reason of difference of opinion. The Hon'ble Calcutta High Court in the case of CIT vs. S.K. Tekriwal (supra) has considered this issue as under :- "1. We are satisfied that the order under challenge is a just order. 2. The reasoning appearing at paragraph 6 of the judgment and/or order under challenge reads as follows : "In the present case before us the assessee has deducted tax u/s. 194C(2) of the Act being payments made to sub-contractors and it is not a case of nondeduction of tax or no deduction of tax as is the import of se....
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....re us, the assessee has deducted tax u/s. 194C(2) of the Act and not u/s. 194I of the Act and there is no allegation that this TDS is not deposited with the Government account. We are of the view that the provisions of section 40(a)(ia) of the Act has two limbs one is where, inter alia, assessee has to deduct tax and the second where after deducting tax, inter alia, the assessee has to pay into Government Account. There is nothing in the said section to treat, inter alia, the assessee as defaulter where there is a shortfall in deduction. With regard to the shortfall, it cannot be assumed that there is a default as the deduction is not as required by or under the Act, but the facts is that this expression, 'on which tax is deductible at ....
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.... was deducted under some other provisions, the assessee cannot be held as assessee in default so as the provisions of section 40(a)(ia) is concerned. We further note that the Coordinate Bench of this Tribunal in case of ACIT vs. M/s. M.C. Sharma Associates & Consultants Pvt. Ltd. (supra) has also considered this issue in para 2.7 as under :- " 2.7. We find that this finding on fact by the ld. CIT (A) is not controverted by the Revenue. Even if it is assumed that the assessee was required to deduct tax u/s 194J of the Act but not u/s 194C of the Act in that eventuality also. It is the case of short deduction of tax. The reliance has been placed by the ld. Counsel for the assessee on the judgement of Hon'ble Calcutta High Court rendered in....