Sri Atindranath Chaubey, Burdwan V. ACIT, Circle-2, Asansol, Asansol

CO 48/KOL/2016

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 2650 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 05-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 28-07-2016
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR
• Assessee Lawyers: P C NAYAK; K K KHEMKA
• Keywords: Additional evidence
• Section: 143(3); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B, BENC H KOLKATA BEFORE DR. A.L.SAINI, AM & SHRI K. NARASIMHA CHARY , JM ITA NO.221/KOL/2014 AND CO. NO.48/KOL/2016 (ARISING OUT OF APPEAL NO. ITA 221/K/2014 (ASSESSMENT YEAR :2010-2011) ACIT, CIRCLE-2, ASANSOL VS. SHRI ATINDRA NATH CHAU BEY, PROP.A.N.CHOUBEY & CO. G.T.ROAD EAST, MURAGASOL, PO : ASANSOL, DIST:BURDWAN(W.B.)-713303 ./ ./PAN/GIR NO. : ACPPC 6542 G ( /APPELLANT ) .. ( / RESPONDENT ) /REVENUE BY : SHRI SAURABH KUMAR, JCIT /ASSESSEE BY : SHRI K.K.KHEMKA & SHRI P.C.NAYAK, ADVOCATES / DATE OF HEARING : 15/11/2016 /DATE OF PRONOUNCEMENT 05/12/2016 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL AND CROSS OBJECTION FILED BY T HE REVENUE AND ASSESSEE RESPECTIVELY, PERTAINING TO THE ASSESSMENT YEAR 2010-2011, ARE DIRECTED AGAINST THE ORDER PASSED BY LD. COMMISSION ER OF INCOME TAX (APPEALS), ASANSOL IN APPEAL NO.230/CIT(A)/ASL./CIR -2/ASL/12-13, DATED 27.11.2013, WHICH IN TURN ARISE OUT OF ASSESSMENT O RDER PASSED BY THE ASSESSING OFFICER (AO) UNDER SECTION 143(3) OF THE INCOME TAX ACT 1961, (IN SHORT THE ACT), DATED 16.01.2013. 2. BRIEF FACTS OF THE CASE QUA THE ASSESSEE ARE THA T THE ASSESSEE FILED RETURN OF INCOME FOR ASSESSMENT YEAR 2010-11 ELECTR ONICALLY ON 30.11.2010 DECLARING TOTAL INCOME AT RS.21,22,657/- . THE CASE WAS PROCESSED BY THE DEPARTMENT U/S.143(3) OF THE ACT A ND THE AO HAS COMPLETED THE ASSESSMENT BY MAKING ADDITION U/S.40( A)(IA). ITA NO.221/14 ATINDRA NATH CHAUBEY 2 3. AGGRIEVED FROM THE ORDER OF AO, THE ASSESSEE FIL ED APPEAL BEFORE THE LD. CIT(A), WHO HAS DELETED THE ADDITION MADE B Y THE AO BY OBSERVING THE FOLLOWINGS :- 8. AFTER CONSIDERING ALL ASPECTS INCLUDING THE FACT THAT AN APPLICATION HAS BEEN FILED BEFORE I.T.O: (TDS) ON 04.11.2013 FO R RECTIFICATION, I HOLD THAT AT THE POINT OF DECISION, THE ASSESSING O FFICER HAS RIGHTLY EFFECTED DISALLOWANCE. THE APPELLANT CAN SEEK ALTER NATE REMEDY AS CONTAINED IN INCOME TAX ACT 1961, IF ANY, AS AND WH EN I.T.O. (TDS) EFFECTS ANY CORRECTION. THIS DISPOSES THE GROUND AN D POINT 5 OF SUBMISSION REPRODUCED IN PARAGRAPH 6 OF THIS ORDER. 9. GROUND 3 IS AGAIN AGAINST DISALLOWANCE OF RS.61, 78,541/- UNDER SECTION 40(A)(IA). THIS PAYMENT IS TO TRANSPORTERS AND IS MADE IN PERIOD 01.10.2009 TO 31.03.2010. THE LEGAL PROVISIO N IS STATED IN SECTION 194C(6) AS PER WHICH IF PAN IS PROVIDED BY CONTRACTOR IN PLYING, HIRING OR LEASING OF GOODS CARRIAGE THEN TA X IS NOT TO BE DEDUCTED. 10. THE ASSESSING OFFICER HAS STRETCHED THE MATTER. HE IS OF THE VIEW THAT THE APPELLANT HAS NOT FURNISHED THE PRESC RIBED FORMS AS SPECIFIED IN SECTION 194C(7) AND HENCE DISALLOWED T HE SAME. 11. THERE ARE TWO ASPECTS. AFTER SUBSTITUTION OF SE CTION 194C W.E.F. 01.04.2009, NEW FORM AS REQUIRED UNDER SECTION 194C (7) HAS NOT BEEN PRESCRIBED YET. SECONDLY GOING BY IMPORT OF DE CISION IN I.T.O., WARD-2(3), KOLKATA VS. M/S LINK CONSULTANTS PVT. LT D. OF ITAT 'A' BENCH, KOLKATA DATED 29.11.2011, ONCE THE CONTRACTO R FURNISHES PAN TO THE APPELLANT, THE LIABILITY TO DEDUCT TAX C AUSES TO EXIST AND HENCE ON GROUND THAT TAX NOT DEDUCTED A DISALLOWANC E UNDER SECTION 40(A)(IA) CANNOT BE MADE. 12. IN VIEW OF FINDINGS IN PARAGRAPH 11, I DIRECT A SSESSING OFFICER TO DELETE THE ADDITION OF RS.61,78,541/-. THE GROUND I S ALLOWED. 4. NOT BEING SATISFIED WITH THE ORDER OF CIT(A), TH E REVENUE IS IN FURTHER APPEAL BEFORE US AND HAS TAKEN THE FOLLOWI NG GROUNDS OF APPEAL :- 1. THE LD CIT (A) HAS FAILED TO APPRECIATE THE FACT THAT DURING THE ASSESSMENT PROCEEDINGS, 15I/15J FORMS WERE SOUGHT A S EVIDENCE OF SUBMISSION TO THE JURISDICTIONAL CIT BUT THE ASS ESSEE FAILED TO PROVIDE THE SAME. IT IS NOTEWORTHY TO MENTION HERE THAT THE ASSESSEE WAS ASKED TO PRODUCE 151/15J FORMS WHICH A LREADY WERE IN EXISTENCE, THE AO NEVER ASKED THE ASSESSEE TO PR ODUCE THE DETAILS OF PAN OF THE TRANSPORTER IN THE NEW FORM A S POINTED OUT BY THE LD. CIT (A). THE PURPOSE OF THE SECTION 194C(6) & 194C(7) IS TO VERY WHETHER THE PAN FURNISHED BY THE CONTRACTORS/S UBCONTRACTORS TO THE CONTRACTEE IS TRUE OR NOT. THEREFORE THE TYP E OF THE FORMS AND WHETHER IT WAS IN EXISTENCE OR NOT IS NOT IMPORTANT HERE, THE MORE ITA NO.221/14 ATINDRA NATH CHAUBEY 3 IMPORTANT IS THE INFORMATION TO BE FURNISHED TO THE JURISDICTIONAL CIT AS REQUIRED U/S 194C(7).THE LD. CIT (A) HAS CITED A S A CASE OF ITO, W2(3); KOLKATA VS M/S LINK CONSULTANTS PVT. LTD OF ITAT, A BENCH, KOLKATA DT. 29/11/2011 THAT ONCE THE CONTRACTOR FUR NISHES PAN TO THE CONTRACTEE, THE LIABILITY TO DEDUCT TAX CEASES TO EXIST. IN REFERENCE TO THAT, IT IS PERTINENT TO MENTION HERE THAT THE CONTRACTORS MAY FURNISH FALSE PAN TO THE CONTRACTEE UNLESS & UN TIL IT IS VERIFIED BY THE CIT. THEREFORE, THE ESSENCE OF SECTION 194C( 6) & 194C(7) HAS BEEN OVERLOOKED BY THE LD. CIT(A). 4.1. LD. DR FOR THE REVENUE HAS VEHEMENTLY SUBMITTE D THAT ASSESSEE DID NOT MAKE THE COMPLIANCE OF FORM NO.15-I & FORM NO.1 5-J. BESIDES, CIT(A) HAS ADMITTED THE SUBMISSIONS OF THE ASSESSEE WITHOUT GIVING AN OPPORTUNITY TO THE AO TO EXAMINE THE FACT. LD. DR H AS POINTED OUT THAT THE LD. CIT(A) DID NOT FOLLOW THE PROPER PROCEDURE TO A DMIT THE ADDITIONAL EXPLANATION AND SUBMISSIONS OF THE ASSESSEE. IN ADD ITION TO THIS, LD. DR FOR THE REVENUE HAS PRIMARILY REITERATED THE STAND TAKEN BY THE AO WHICH WE HAVE NOTED ALREADY IN OUR EARLIER PARA AND IS NO T BEING REPEATED FOR THE SAKE OF BREVITY. 4.2. ON THE OTHER HAND, LD. AR FOR THE ASSESSEE HA S SUBMITTED THAT THE ASSESSEE UNDER CONSIDERATION HAS DONE THE PROPER CO MPLIANCE OF SECTION 194C(6) AND 194C(7) OF THE ACT. THE ASSESSEE DID N OT FURNISH ANY ADDITIONAL EVIDENCE BEFORE LD.CIT(A). THE ASSESSEE HAS GIVEN PAN NUMBER AND OTHER DOCUMENTS AND SUBMITTED EXPLANATIO N BEFORE THE AO THAT THERE WAS A PROPER COMPLIANCE ON THE PART OF THE ASSESSEE SO FAR AS SECTION 194C SUB SECTION 6 AND SUB SECTION 7 ARE CO NCERNED AND FORM NO.15-I & 15-J ARE CONCERNED. LD. AR SUBMITTED THAT AFTER SUBSTITUTION OF SECTION 194C W.E.F. 1 ST APRIL, 2009, NEW FORM AS REQUIRED U/S.194C(7) HAS NOT BEEN PRESCRIBED YET. SECONDLY GOING BY IMPORT O F DECISION IN ITO ITA NO.221/14 ATINDRA NATH CHAUBEY 4 WARD-2(3), KOLKATA VS. M/S LINK CONSULTANTS PVT. LT D., OF ITAT A BENCH, KOLKATA DATED 29.11.2011, ONCE THE CONTRACTOR FURNI SHES PAN TO THE APPELLANT, THE LIABILITY TO DEDUCT TAX CEASE TO EXI ST AND HENCE, ON GROUND THAT TAX NOT DEDUCTED A DISALLOWANCE UNDER SECTION 40(A)(IA) CANNOT BE MADE. CONSIDERING THE FACTUAL POSITION CITED ABOVE, WE ARE OF THE VIEW THAT THERE IS NO ANY POINT TO DISTURB THE ORDER PAS SED BY THE LD. CIT(A). ACCORDINGLY, WE CONFIRM THE ORDER PASSED BY THE LD. CIT(A). 4.3. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMISSED. 5. CO. NO.48/KOL/2016, FILED BY THE ASSESSEE HAS NOT B EEN PRESSED BY THE ASSESSEE THEREFORE, THE SAID CROSS O BJECTION (CO) DOES NOT REQUIRE ANY ADJUDICATION. HENCE, SAID CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED. 5.1 IN THE RESULT, THE APPEAL FILED BY THE REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 05/12/ 2016. S D/ - (NARASIMHA CHARY) SD/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; $% DATED 05/12/2016 & ()*/PRAKASH MISHRA , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) ' #$% , / ITAT, 1. / THE APPELLANT-ACIT, CIR-2, ASANSOL 2. / THE RESPONDENT.-SRI ATINDRA NATH CHAUBEY 3. 4 ( ) / THE CIT(A), KOLKATA. 4. 4 / CIT 5. 567 8 , 8 , / DR, ITAT, KOLKATA 6. 79 / GUARD FILE. 5 //TRUE COPY//