KINETIC ADVERTISING INDIA PVT. LTD., MUMBAI V. ACIT-7(3)(1), MUMBAI

ITA 3194/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5381 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2013-2014
• Appeal Filed On: 13-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R BHOOPATHI DR VIRTUAL
• Keywords: Bonafide belief; Bonafide mistake; TDS
• Section: 142(1); 115JB; 40(a)(ia); 194C; 143(1); 143(2); 13

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI C. N. PRASAD, JM & SHRI S . RIFAUR RAHMAN, AM ./ I.T.A. NO . 3194 / MUM/ 2019 ( / ASSESSMENT YEAR: 2013 - 14 ) KINETIC ADVERTISING INDIA PVT. LTD. 15 TH FLOOR, R. TECH PARK , ROMELL REAL ESTATE, NEXT TO HUB MALL GOREGAON (EAST), MUMBAI - 400 063 / VS. ACIT 7(3)(1) , ROOM NO. 126B , 1 ST FLOOR, M. K. ROAD, AAYAKAR BHAVAN, MUMBAI - 400 020 ./ ./ PAN NO. AA BCP 1311 M ( / APPELLANT ) : ( / RESPO NDENT ) / APPELLANT BY : SMT. AARTI VISSANJI , AR / RESPONDENTBY : SHRI R. BHOOPATHI , DR VIRTUAL D ATE OF HEARING : 0 1.10 .2020 DATE OF PRONOUNCEMENT : 0 7.10.2020 / O R D E R PER S. RIFAUR RAHMAN, ACCOUNTANT MEMBER : THE PRESE NT A PPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. COMMIS S IONER OF INCOME TAX (APPEALS) - 1 3 IN SHORT REFERRED AS LD. CIT(A) , MU MBAI DATED 20.02 . 2019 FOR A SSESSMENT YEAR (IN SHORT A Y ) 2013 - 14 . 2 I.T.A. NO. 3194 /MUM/201 9 KINETIC ADVERTISING INDIA PVT. LTD. 2 . THE BRIEF FACTS OF THE CASE ARE, ASSESSEE I S A COMPANY ENGAGED IN PROVIDING OUTDOOR ADVERTISING AND RELATED INFORMATION CONSULTANCY. THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 5,16,68,760/ - WAS FILED BY THE ASSESSEE ON 29.11.13. THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT AND SUBSEQUENTL Y, THE CASE WAS SELECTED FOR SCRUTINY AND NOTICES U/S 143(2) AND 142(1) WERE ISSUED AND SERVED ON THE ASSESSEE. IN RESPONSE, AR OF THE ASSESSEE FILED THE RELEVANT INFORMATION AS CALLED FOR. 3. THE ASSESSEE IS ENGAGED IN PROVIDING OUTDOOR ADVERTISING AND R ELATED INFORMATION CONSULTANCY. DURING THE YEAR UNDER CONSIDERATION, ASSESSEE DECLARED INCOME FROM BUSINESS AT RS. 4,49,70,675/ - AND INCOME FROM OTHER SOURCES SUCH AS INTEREST INCOME ON IT REFUND AND DEPOSITS SHOWN AT RS. 66,98,082/ - . THE TOTAL TAXABLE INC OME SHOWN AT RS. 5,16,68,757/ - AND THE INCOME UNDER MAT PROVISION U/S 115JB HAS BEEN SHOWN AT RS. 5,05,59,600/ - . 4. DURING ASSESSMENT PROCEEDINGS, AO OBSERVED THAT TDS AMOUNT IN RESPECT OF COMPANIES TO THE EXTENT OF RS. 1,35,411/ - IS PAID ON 04.12.2014 AFT ER THE DUE DATE U/S 139(1), THEREFORE HE 3 I.T.A. NO. 3194 /MUM/201 9 KINETIC ADVERTISING INDIA PVT. LTD. INVOKED THE PROVISION OF SECTION 40(A)(IA) AND DISALLOWED THE RELEVANT GROSS AMOUNT OF RS. 67,70,550/ - . 5. IN RESPONSE, ASSESSEE ALSO SUBMITTED LETTER DATED 05.03.16 WITH THE CONFIRMATION THAT ASSESSEE HAS PAID THE TDS AMOUNT ALONGWITH INTEREST AND RELIED ON THE FOLLOWING CASE LAWS: - I) ACIT VRS. NGC NETWORKS (I) LTD (ITA NO. 1382 & 68/MUM/2014) II) ACIT VRS. PENTAGON SYSTEMS & SERVICES PVT. LTD. (ITA NO. 6879/MUM/2012) III) MISSION VRS. ITO (ITA NO. 1076/KOL/2014) IV) CIT VRS. S . K. TEKRIWAL (361 ITR 0432) 6. AFTER CONSIDERING THE ABOVE SUBMISSION OF ASSESSEE, AO REJECTED THE SUBMISSION OF THE ASSESSEE AND CONFIRMED THE DISALLOWANCE U/S 40(A)(IA) OF THE ACT OF RS. 67,70,550/ - . 7 . AGGRIEVED WITH THE ABOVE ORDER , ASSESSEE PREFERRED THE APPEAL BEFORE LD. CIT(A) AND SUBMITTED BEFORE HIM THAT ASSESSEE HAD PAID TO M/S TIMES INNOVATIVE MEDIA LTD OF RS. 8,22,37,744/ - ON ACCOUNT OF MEDIA BOOKINGS. DURING THIS YEAR, M/S TIMES INNOVATIVE MEDIA LTD HAS SUBMITTED A CERTIFICATE U/S 197 FOR 4 I.T.A. NO. 3194 /MUM/201 9 KINETIC ADVERTISING INDIA PVT. LTD. DEDU CTING LOWER DEDUCTION @ 0.1% FROM THE PAYMENT MADE TO THE ABOVE PARTY. 8. THE ASSESSEE ACCORDINGLY MADE DEDUCTION FROM PAYMENT S MADE TO M/S TIMES INNOVATIVE MEDIA LTD ON ALL PAYMENTS MADE IN THAT YEAR. HOWEVER, ASSESSEE RECEIVED SHORT DEDUCTION NOTICE IN F.Y. 2014 - 15 WHEREIN, IT WAS STATED THAT DUE TO HAVING EXCEEDED LIMIT IN LOWER DEDUCTION CERTIFICATE, THE ASSESSEE HAD TO PAY THE SHORTFALL OF TDS ALONG WITH INTEREST . THEREFORE, THE ASSESSEE PAID THE SHORTFALL OF RS. 1,35,411/ - ALONGWITH INTEREST OF RS. 4 0,623/ - DURING THE F.Y. 2014 - 15. THE ASSESSEE SUBMITTED BEFORE LD. CIT(A) THAT SINCE THERE IS NO NON - DEDUCTION OF TDS, NO DISALLOWANCE CAN BE MADE U/S 40(A)(IA) OF THE ACT. IN SUPPORT OF ITS ARGUMENTS, ASSESSEE RELIED ON THE FOLLOWING DECISIONS: - I) CIT VRS. S. K. TEKRIWAL (361 ITR 0432) II) DISH TV INDIA LTD VRS. ACIT (2017) 60 ITR (T) 162 (MUM - TRIB) III) THREE STAR GRANITES (P) LTD. VRS. ACIT (204) 32 ITR (T) 398 (COCHIN - TRIB) 5 I.T.A. NO. 3194 /MUM/201 9 KINETIC ADVERTISING INDIA PVT. LTD. IV) DY. COMMISSIONER OF INCOME TAX - 11(2) VRS CHANDABHOY & JASSOBHOY (2012) 49 SOT 448 (MUMBAI) V) APOLLO TYRES LTD. VRS. DCIT 1(1) (2013) 155 TTJ 470 (COCHIN TRIB) VI) ACIT VRS. PENTAGON SYSTEMS & SERVICES PVT. LTD. (ITA NO. 6879/MUM/2013) 9. FURTHER IT SUBMITTED THAT ASSESSEE DEDUCTED TAX AT SOURCE AS PER THE CERTIFICATE ISSUED U/S 197 UP TO THE APPROVED LIMIT OF RS. 7,51,10,831/ - AND PAID TO THE CREDIT OF THE GOVERNMENT. AFTER THE LIMIT OF RS. 7,51,10,831/ - WAS OVER, THE ASSESSEE CONTINUED TO DEDUCT TAX AT SOURCE @ 0.1% ON MISTAKEN BELIEF THAT THE SAME RATE WOULD BE VALID EVEN IN THE BALANCE AMOUNT. 10. AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AND TAKING NOTE OF THE FACTS IN THIS CASE, LD. CIT(A) OBSERVED THAT THE ASSESSEE CONTINUED TO DEDUCT TAX AT SOURCE @ 0.1% EVEN AFTER THE PAYMENT EXCEEDED THE LIMIT OF RS. 7,51,10,831/ - . THE ASSESSEE WAS REQU IRED TO DEDUCT TAX AT SOURCE AT THE RATE OF 2% U/S 194C OF THE ACT IN RESPEC T OF PAYMENT EXCEEDING THE LIMIT APPROVED IN CERTIFICATE ISSUED U/S 197. THE A SSESSEE STATED THAT AFTER RECEIPT OF 6 I.T.A. NO. 3194 /MUM/201 9 KINETIC ADVERTISING INDIA PVT. LTD. A SHORT DEDUCTION NOTICE IN F.Y. 2014 - 15, THE ASSESSEE HAD PAID S HORTFALL OF TDS ALONG WITH INTEREST DURING F.Y. 2014 - 15. HE REJECTED THE CONTENTION OF THE ASSESSEE THAT ITS CASE WILL NOT FALL UNDER SECTION 40(A)(IA) OF THE ACT AND OTHER CASE LAWS RELIED BY THE ASSESSEE. LD. CIT(A) FURTHER OBSERVED THAT HE IS NOT IN AGR EEMENT WITH THE SUBMISSION OF THE ASSESSEE THAT THE DECISION IN THESE CASE S ARE APPLICABLE TO THE FACTS OF THE CASE OF ASSESSEE. IN ALL THE SE CASE S RELIED BY THE ASSESSEE, THE ASSESSEE HAD DEDUCTED THE TAX AT SOURCE UNDER ONE PROVISION OF THE ACT WHEREAS T HE AO WAS OF THE VIEW THAT THE TAX WAS REQUIRED TO BE DEDUCTED IN SOME OTHER PROVISIONS OF THE ACT AT A HIGHER RATE. IN THESE CIRCUMSTANCES, THE HONBLE COURTS/TRIBUNALS WERE OF THE OPINION THAT IT WAS A BONA FIDE CASE OF MISTAKE ON PART OF THE APPELLANT B ECAUSE THE APPELLANT WAS OF THE BELIEF THAT TAX WAS DEDUCTIBLE UNDER SAME PROVISIONS OF THE ACT UNDER WHIC H IT WAS DEDUCTED. SINCE THE CASE OF THE APPELLANT WAS BONA FIDE, IT WAS HELD THAT NO DISALLOWANCE WAS CALLED FOR UNDER SECTION 40(A)(IA) OF THE ACT B ECAUSE IT WAS NOT A CASE OF NON - DEDUCTION OF TAX AT SOURCE RATHER IT WAS A CASE OF DEDUCTION OF TAX AT SOUR CE UNDER SOME OTHER PROVISIONS AT A LOWER RATE. HOWEVER, HE OBSERVED THAT 7 I.T.A. NO. 3194 /MUM/201 9 KINETIC ADVERTISING INDIA PVT. LTD. IT CAN BE SEEN THAT IN THE PRESENT CASE , IT WAS THE NEGLIGENCE ON THE PART OF THE A SSESSEE DUE TO WHICH IT CONTINUED TO DEDUCT TAX AT SOURCE AT A RATE OF 0.1% EVEN AFTER THE LIMIT OF RS.7,51,10,831/ - PRESCRIBED AS PER CERTIFICATE ISSUED U /S 197 OF THE ACT . IN THIS CASE , THE TAX WAS DEDUCTIBLE UNDER SECTION 1 94C OF THE ACT AT THE RATE OF 2% , HOWEVER ACTUALLY THE TAX WAS DEDUCTED AT THE RATE OF 0. 1%. ACCORDINGLY, HE REJECTED THE CONTENTIONS OF THE ASSESSEE AND SUSTAINED THE DISALLOWANCE MADE BY THE AO. 11 . AGGRIEVED WITH THE ABOVE ORDER, ASSESSEE IS IN APPEAL BEFORE US ON THE GROU NDS MENTIONED BELOW: - 1. THE LD. CIT (A) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW ERRED IN: - (A) CONFIRMING THAT THE AMOUNT OF RS. 67,77,550/ - WAS DISALLOWABLE U/S. 40(A)(IA) OF THE ACT, ON ACCOUNT OF SHORT - DEDUCTION OF TAX AT SOURCE AS THE AP PELLANT WHILE MAKING PAYMENTS HAD DEDUCTED LOWER TAX IN RESPECT OF PART OF THE AMOUNT PAID TO THE DEDUCTEE. (B) NOT FOLLOWING THE JUDICIAL PRONOUNCEMENTS WHEREIN IT HAS BEEN HELD THAT MERE SHORT DEDUCTION OF TAX WOULD NOT RESULT INTO DISALLOWANCE OF EXPEN DITURE U/S. 8 I.T.A. NO. 3194 /MUM/201 9 KINETIC ADVERTISING INDIA PVT. LTD. 40(A)(IA) OF THE ACT. (C) NOT FOLLOWING THE JUDICIAL PRONOUNCEMENT WHEREIN IT HAS BEEN HELD THAT IF THE DEDUCTION OF TAX IS MADE OR NOT MADE UNDER A BONAFIDE MISTAKE, NO DISALLOWANCE SHOULD BE MADE U/S. 40(A)(IA) OF THE ACT. IT IS HUMBLY PRAYED THAT THE RELIEFS AS PRAYED AND SUCH OTHER AND FURTHER RELIEFS AS MAY BE JUSTIFIED BY THE FACTS AND CIRCUMSTANCES OF THE CASE AND AS MAY MEET THE ENDS OF JUSTICE, SHOULD BE GRANTED. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUN D, WHICH MAY BE NECESSARY. 12 . AT THE TIME OF HEARING , LD. AR APPEARING ON BEHALF OF THE ASSESSEE BROUGHT TO OUR NOTICE THE CERTIFICATE ISSUED U/S 197 OF THE ACT WHICH IS PLACED AT PAGE NO. 4 OF THE PAPER BOOK. AS PER THE CERTIFICATE, ASSESSEE WAS SUPPOSED TO DEDUCT THE TAX @ 0.1% UP TO THE VALUE OF RS. 7,51,10,831/ - APPROVED IN THE NAME OF PORTLAND INDIA OUTDOOR ADVERTISING PVT. LTD. (OLD NAME OF THE ASSESSEE). ASSESSEE SUBMITTED THAT DURING THIS YEAR, HE HAS MADE TOTAL PAYMENT TO M/S TIMES INNOVATIVE MEDI A LTD TO THE EXTENT OF RS. 8.22 CRORES WITH THE BONAFIDE BELIEF THAT THE APPLICABLE TDS RATE IS 0.1%. SUBSEQUENTLY, ASSESSEE HAS RECEIVED SHORT DEDUCTION 9 I.T.A. NO. 3194 /MUM/201 9 KINETIC ADVERTISING INDIA PVT. LTD. NOTIC E FROM THE DEPARTMENT AND REALISED THE MISTAKE AND REMITTED THE SHORT DEDUCTED TAX AMOUNT ALONGWI TH INTEREST. HOWEVER, AR SUBMITTED THAT AO HAS INVOKED SECTION 40(A)(IA) OF THE ACT ON THE REMITTANCE OF SHORT DEDUCTION AS REMITTED SUBSEQUENT TO FILING OF RETURN, BUT THE FACT IS THAT ASSESSEE HAS REMITTED THE AMOUNT ONLY AFTER RECEIPT OF SHORT DEDUCTION NOTICE AND AS FAR AS THIS ASSESSMENT YEAR IS CONCERNED, ASSESSEE HAS DULY DEDUCTED THE TA X EVEN THOUGH ITS SHORT DEDUCTION , ASSESSEE HAS FOLLOWED THE DUE PROCESS OF LAW AND PROVISION OF SECTION 40(A)(IA) OF THE ACT IS NOT APPLICABLE IN THE CASE OF THE ASS ESSEE CONSIDERING THE FACT THAT SECTION 40(A)(IA) USED THE WORD TAX HAS NOT BEEN DEDUCTED OR AFTER DEDUCTION HAS NOT BEEN PAID ON OR BEFORE DUE DATE. CONSIDERING THE FACTS IN THIS CASE, THE PROVISION OF SECTION 40(A)(IA) HAS NO APPLICATION FOR THAT PURPO SE. SHE RELIED UPON THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VRS. KISHORE RAO & OTHERS (HUF) [2017] 79 TAXMAN.COM 357(KARNATAKA) /[206] 387 ITR 196 (KARNATAKA) AND SHE BROUGHT TO OUR NOTICE PAGE 6 - 8 OF THE PAPER BOOK AND SUBMITTED TH AT THIS CASE IS SIMILAR TO THE CASE OF THE ASSESSEE. SHE FURTHER RELIED ON THE DECISION OF COORDINATE BENCH OF ITAT IN THE CASE OF T ATA 10 I.T.A. NO. 3194 /MUM/201 9 KINETIC ADVERTISING INDIA PVT. LTD. COMMUNICATIONS LTD . VRS. DCIT (ITA NO. 7084 & 7085/MUM/2017). 13 . ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS PASSED BY THE REVENUE AUTHORITIES. 14 . CONSIDERED THE RIVAL SUBMISSION AND MATERIAL PLACED ON RECORD. WE NOTICE FROM THE RECORD THAT ASSESSEE HAD MADE THE PAYMENT TO M/S TIMES INNOVATIVE MEDIA LTD TO THE EXTENT OF RS. 8,22,37,744/ - AND DEDUCTED TDS @ 0.1%. HOWE VER, WE NOTICED THAT M/S TIMES INNOVAT IVE MEDIA LTD HAS SUBMITTED THE SHORT DEDUCTION CERTIFICATION ISSUED U/S 197 AND AS PER THE CERTIFICATE, THE APPRO VED LIMIT OF SHORT DEDUCTION IS RS. 7,51,10,831/ - , BUT ASSESSEE CONTINUED TO DEDUCT THE TAX AT THE CONCE SSIONAL RATE BEYOND THE CERTIFICATE LIMIT OF RS. 7,51,10,831/ - INSTEAD OF DEDUCTING THE TDS @ 2%. HOWEVER, IN THE SUBSEQUENT FINANCIAL YEAR, ASSESSEE WAS BROUGHT TO THE NOTICE OF SHORT DEDUCTION BY THE DEPARTMENT AND ASSESSEE HAS REMITTED THE SHORTFALL AMO UNT ALONGWITH INTEREST. HOWEVER, AO AND LD. CIT(A) HAS SUSTAINED THE DISASLLOWANCE U/S 40(A)(IA) FOR THE ABOVE SAID DEFAULT ON THE PART OF THE ASSESSEE. SINCE THE FACTS OF THE CASE ARE SIMILAR TO THE 11 I.T.A. NO. 3194 /MUM/201 9 KINETIC ADVERTISING INDIA PVT. LTD. FACTS OF THE CASE TITLED T ATA COMMUNICATIONS LTD . VRS. DCIT (ITA NO. 7084 & 7085/MUM/2017). FOR THE SAKE OF CLARITY, WHICH IS REPRODUCED BELOW: - 8. WE HAVE HEARD CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. WE HAVE ALSO CAREFULLY EXAMINED THE DECISION RELIED UPON BY THE LEARNED COUNSEL FOR THE ASSESSEE. INSOFAR AS THE FACTUAL ASPECT OF THE ISSUE IS CONCERNED, THERE IS NO DISPUTE THAT IN TERMS WITH SECTION 197(2) OF THE ACT R/W RULE 28AA, THE ASSESSING OFFICER HAD ISSUED CERTIFICATES IN RESPECT OF THREE PARTIES PERMITTING DEDUCTION OF TAX AT SOU RCE AT LOWER RATE. IT IS A FACT ON RECORD, IN THESE CERTIFICATES ISSUED IN FORM NO.13, THE ASSESSING OFFICER HAS SPECIFIED THE PAYMENT WHICH IS SUBJECT TO DEDUCTION OF TAX AT LOWER RATE. ADMITTEDLY, THE ASSESSEE HAS DEDUCTED TAX AT THE RATES SPECIFIED IN T HE CERTIFICATES ISSUED IN FORM NO.13, FOR THE ENTIRE PAYMENT MADE TO THE CONCERNED PARTIES DURING THE YEAR UNDER CONSIDERATION EVEN IN RESPECT OF PAYMENTS MADE IN EXCESS OF AMOUNT SPECIFIED IN FORM NO.13. THE ISSUE BEFORE US IS, WHETHER FOR DEDUCTING TAX A T LOWER RATE ON THE PAYMENTS EXCEEDING THE AMOUNTS SPECIFIED IN THE CERTIFICATES ISSUED IN FORM NO.13, R/W SECTION 197(2) AND RULE 28AA, THE ASSESSEE CAN BE TREATED AS ASSESSEE IN DEFAULT FOR SHORT DEDUCTION OF TAX. IN THIS REGARD, THE SPECIFIC CONTENTION OF THE ASSESSEE IS, AS PER SECTION 197 OF THE ACT, THE 12 I.T.A. NO. 3194 /MUM/201 9 KINETIC ADVERTISING INDIA PVT. LTD. CERTIFICATE TO BE ISSUED BY THE ASSESSING OFFICER UNDER SUB SECTION (2) IS PERSON SPECIFIC AND NOT INCOME SPECIFIC. IT IS OBSERVED, THE TRIBUNAL, KOLKATA BENCH, IN 21ST CENTURY SECURITIES LTD. (SUPRA), AFTER INTERPRETING THE PROVISIONS OF SECTION 197 OF THE ACT AS WELL AS RULE 28AA HAS HELD THAT NEITHER UNDER SECTION 197 OF THE ACT NOR IN RULE 28AA, THERE IS REFERENCE TO ANY INCOME TO BE SPECIFIED IN THE CERTIFICATE TO BE ISSUED FOR DEDUCTION OF TAX AT LOWER RATE. THE TRIBUNAL HAS HELD THAT THE STATUTORY PROVISIONS PROVIDING FOR DEDUCTION OF TAX AT SOURCE AT LOWER RATE IS PERSON SPECIFIC AND CANNOT BE EXTENDED TO THE AMOUNTS SPECIFIED BY THE RECIPIENTS OF THE PAYMENT WHILE MAKING APPLICATION FOR GRANT OF CERTIFICATE IN FORM NO.13, IN TERMS OF SECTION 197 OF THE ACT. THUS, THE TRIBUNAL HAS ULTIMATELY HELD THAT IN SUCH CIRCUMSTANCES, IF THE ASSESSEE CONTINUES TO DEDUCT TAX AT THE RATE SPECIFIED IN THE CERTIFICATE, EVEN, IN RESPECT OF PAYMENT MADE OVER AND A BOVE THE SUM SPECIFIED IN THE CERTIFICATE, IT CANNOT BE TREATED AS ASSESSEE IN DEFAULT FOR SHORT DEDUCTION OF TAX. IN OUR VIEW, THE AFORESAID DECISION OF THE CO ORDINATE BENCH SQUARELY APPLIES TO THE FACTS OF THE PRESENT CASE. IN THE ABSENCE OF ANY CONTRAR Y DECISION HAVING BEEN BROUGHT TO OUR NOTICE BY LEARNED DEPARTMENTAL REPRESENTATIVE, WE ARE INCLINED TO FOLLOW THE DECISION OF THE CO ORDINATE BENCH REFERRED TO ABOVE AND HOLD THAT THE ASSESSEE CANNOT BE TREATED AS ASSESSEE IN DEFAULT FOR SHORT DEDUCTION OF TAX. ACCORDINGLY, WE 13 I.T.A. NO. 3194 /MUM/201 9 KINETIC ADVERTISING INDIA PVT. LTD. REVERSE THE IMPUGNED ORDERS OF LEARNED COMMISSIONER (APPEALS) ON THIS ISSUE IN BOTH THE APPEALS. GROUNDS RAISED ARE ALLOWED. 15 . T HEREFORE , R ESPECTFULLY FOLLOWING THE ABOVE DECISION OF COORDINATE BENCH OF ITAT WHICH IS APPLICABLE MU TATIS MUTANDIS IN THE PRESENT CASE, WE ARE INCLINED TO ACCEPT THE SUBMISSION OF LD. AR. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED . 16. IN THE NET RESULT, THE APPEAL FI LED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT O N 07.10. 2020 . S D/ - S D/ - (C. N. PRASAD ) (S. RIFAUR RAHMAN ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 07.10 .2020 SR.PS. DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPO NDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 14 I.T.A. NO. 3194 /MUM/201 9 KINETIC ADVERTISING INDIA PVT. LTD. 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT , MUMBAI