JIWANRAM SHEODUTTRAI INDUSTRIES PVT. LTD.,KOLKATA vs. I.T.O., WARD-2(1)(TDS), KOLKATA, KOLKATA

The assessee in this appeal has agitated the action of the CIT(A) in upholding the demand raised by the Assessing Officer on account of non-deduction of TDS u/s 201(1) of the Act and thereby, holding the assessee as assessee in default and thereby, raising the tax demand of Rs.82,990/- and interest of Rs.78,008/- u/s 201(1A) of the Act. Assessment year: 2012-13 Jiwanram Sheoduttrai Industries Pvt. Ltd 3. At the outset the ld. counsel for the assessee, in this respect, has submitted that so far as non-deduction on account of payment of professional fees of Rs.2,88,110/- to Rajesh Kumar Shah & Associates was concerned, it was not a case of non-deduction of TDS but short deduction of TDS. He has further contended that even otherwise the payee had included the said amount in his income tax return and that as per Proviso to section 201, if the payee has furnished his return of income and taken into account the amount of payment made to him without deduction of TDS and has paid the due taxes thereupon and declaration is furnished in this respect then the payer is not liable to be declared as ‘assessee in default’. The ld. counsel has further submitted that so far as the issue relating to non-deduction of TDS paid to Shri Asit Mistri and Shri Umesh Sharma was concerned, both were skilled labourer and the payment was made on account of wages and not as contractors and the assessee was justified in non-deducting of TDS on the wages of the labourer as a matter of prevailing trade practice. The ld. counsel has requested that the matter may be restored to the file of the Assessing Officer for examination of the aforesaid factual aspect and pass a fresh assessment order on this issue.

The ld. DR has not objected to the same.

In view of the above, the impugned order of the CIT(A) is set aside and the matter is restored to the file of the Assessing Officer to examine the aforesaid contentions of the assessee and if the contentions of the assessee are found correct, the accordingly grant relief to the assessee. The Assessing Officer will give proper opportunity to the assessee to present his case, thereafter to decide this limited issue afresh.