Arnab Bose, Kolkata V. DCIT, Circle -33, Kolkata, Kolkata

CO 42/KOL/2012

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7474 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 16 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 27-06-2012
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 11-05-2012
• Court: TRIBUNAL
• Department Lawyers: AMIT KR MAITRA
• Assessee Lawyers: K M ROY

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B , KOLKATA [ () . .. . . .. . , , , , , !' ##$ %& ##$ %& ##$ %& ##$ %& ] ]] ] [BEFORE HONBLE SRI C. D. RAO, AM & HONBLE SRI GEORGE MATHAN, JM] '( '( '( '( /ITA NO.336/KOL/2012 )&* +,/ ASSESSMENT YEAR : 2008-09 (%. / APPELLANT ) - & - ( 01%. /RESPONDENT) D.C.I.T., CIRCLE-33 SHRI ARNAB BOSE KOLAKATA -VERSUS- KOLKATA (PAN:ADCPB 1301 N) 2 34 2 34 2 34 2 34 /C.O.NO.42/KOL/2012 '( '( '( '( /A/O ITA NO.336/KOL/2012 )&* +,/ ASSESSMENT YEAR : 2008-09 (%. / CROSS OBJECTOR ) - & - ( 01%. /RESPONDENT) SHRI ARNAB BOSE A.C.I.T., CIRCLE-33, KOLKATA -VERSUS- KOLKATA (PAN:ADCPB 1301 N) %. 5 6 / FOR THE DEPARTMENT: SHRI AMIT KR.MAITRA 01%. 5 6 / FOR THE ASSESSEE: SHRI K.M.ROY 7&8 5 /DATE OF HEARING : 27.06.2012. 9+ 5 /DATE OF PRONOUNCEMENT : 27.06.2012. : / ORDER ( (( ( . .. . . .. . ) )) ), , , , PER SHRI C.D.RAO, AM THE ABOVE APPEALS ONE FILED BY THE REVENUE AND CROS S OBJECTION FILED BY ASSESSEE ARE AGAINST ORDER DATED 02.11.2011 OF CIT (A)-XX, KOLKATA PERTAINING TO A.YR. 2008-09. 2. THERE IS A DELAY OF 11 DAYS IN FILING OF T HE APPEAL BY THE REVENUE FOR WHICH THE REVENUE HAS FILED A CONDONATION PETITION EXPLAINING THE REASONS FOR SUCH DELAY. AFTER CONSIDERING THE SUBMISSIONS BY THE REVENUE THE DELA Y IS CONDONED. 3. IN THIS APPEAL THE REVENUE HAS RAISED THE FOLLOW ING GROUNDS :- 2 1. THAT THE LD. CIT(A) ERRED IN DELETING DISALLOWA NCE OF RS.14,70,451/- MADE U/S 40(A)(IA) OF THE INCOME-TAX ACT BEING TRANSPORTERS PAYMENT MADE WITHOUT MAKING TDS HOLDING THAT THERE WAS NO ORAL/WRITTEN CONTRACT BET WEEN THE ASSESSEE AND THE TRANSPORTERS AND THEREBY FAILING TO TAKE COGNIZANCE OF THE FACT THAT IN THE ABSENCE OF ANY CONTRACT, THE TRANSPORTATION OF MATERIALS COULD NOT BE CARRIED OUT THROUGH OUT THE YEAR. 3.1. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND I N THE CROSS OBJECTION :- 1. THE LD. CIT(A)HAS ERRED ON FACTS AND IN LAW IN SUSTAINING ADDITION OF RS.1455793/- TOWARDS HIRE CHARGES ON A/C OF NON DEDUCTION OF TAX AT SOURCE WITHOUT APPRECIATING THAT THE SUCH AMOUNT WAS PAID DURING THE YEAR.. 4. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSE L APPEARING ON BEHALF OF ASSESSEE HAS RELIED ON THE ORDERS OF ITAT SPECIAL B ENCH VISAKHAPATNAM IN THE CASE OF MERILYN SHIPPING & TRANSPORTERS VS ADDL.CIT, RAN GE-1, VISAKHAPATNAM VIDE ITA NO.477/VIZ/2008 DATED 29.03.2012 WHEREIN THIS SPECI AL BENCH HAS CONSIDERED THAT THE PROVISIONS OF SECTION 194/40(A)(IA) OF THE IT A CT ARE APPLICABLE TO THE AMOUNTS PAYABLE AT THE END OF THE YEAR AND THE SAME IS NOT APPLICABLE TO THE AMOUNT PAID DURING THE FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR. THEREFORE HE REQUESTED TO DISMISS THE APPEAL OF REVENUE AND ALLOW THE CROSS OBJECTION . 5. ON THE OTHER HAND, THE LD. DR APPEARING ON BEHAL F OF THE REVENUE HAS RELIED ON THE SENIOR MEMBERS VIEW EXPRESSED IN THE SPECIAL B ENCH. 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF MATERIALS AVAILABLE ON RECORD, SINCE THE ITAT SPECIAL BENCH, VISAKHAPATNAM HAS TAKEN A VIEW THAT THE AMOUNT PAYABLE AT THE END OF THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR, IF TDS IS NOT RECOVERED THEN ONLY THE PROVISI ON OF SECTION 40(A)(IA) OF THE I.T.ACT IS APPLICABLE. THEREFORE IN THE PRESENT CASE SINCE THERE IS NO OUTSTANDING AT THE END OF THE PREVIOUS YEAR AS ON 31 ST MARCH, 2008 AS SHOWN IN THE BOOKS OF ACCOUNT ON AC COUNT OF TRANSPORT CHARGES AS WELL AS HIRE CHARGES WE DIS MISS THE APPEAL OF THE REVENUE AND ALLOW THE CROSS OBJECTION OF ASSESSEE. 3 7. IN THE RESULT THE APPEAL OF REVENUE IS DISMISSED AND THE CROSS OBJECTION OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27.06.2012. SD/- SD/- [ .##$ %& , ] [ .., ] [ GEORGE MATHAN ] [ C. D. RAO ] JUDICIAL MEMBER ACCOUNTANT MEMBER ( (( ( ) )) ) DATE:27.06.2012. R.G.(.P.S.) : 5 0))3 ;3+<- COPY OF THE ORDER FORWARDED TO: 1. SHRI ARNAB BOSE, 32A/37, SUREN SARKAR ROAD, KOLKATA -700010. 2 THE D.C.I.T., CIRCLE-33, KOLKATA. 3. THE CIT- 4. THE CIT(A)-XX, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA 13 0)/ TRUE COPY, :&7/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES