Shri Rabindra Nath Mukherjee, North 24 Parganas V. ITO, Ward - 49(1), Kolkata, Kolkata

ITA 1028/KOL/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8114 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-10-2012
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 18-05-2010
• Court: TRIBUNAL
• Department Lawyers: K N JANA
• Assessee Lawyers: B K PODDAR

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH C, KOLKATA () BEFORE , ,, , , SHRI MAHAVIR SINGH, JUDICIAL MEMBER. /AND . .. . ! ! ! !. .. . , '# SHRI C.D.RAO, ACCOUNTANT MEMBER $ $ $ $ / ITA NO . 1028/KOL/2010 %& '(/ ASSESSMENT YEAR : 2006-07 (*+ / APPELLANT ) SRI RABINDRA NATH MUKHERJEE, KOLKATA (PAN:AEUPM 8299 P) (,-*+/ RESPONDENT ) I.T.O., WARD-49(1) KOLKATA. *+ . / '/ FOR THE APPELLANT: SHRI B.K.PODDAR ,-*+ . / '/ FOR THE RESPONDENT: SHRI K.N.JANA, SR.(.DR) 0%1 . !# /DATE OF HEARING : 23.10.2012. 2' . !# /DATE OF PRONOUNCEMENT : 23.10.2012. '3 / ORDER . .. . ! ! ! !. .. . , '# PER SHRI C.D.RAO, AM THE ABOVE APPEAL IS FILED BY ASSESSEE AGAINST ORDER DATED 18.02.2010 OF THE LD. CIT-(A)-XXXII, KOLKATA PERTAINING TO A.YR. 2006-07 . 2. IN ADDITION TO THE GROUNDS FILED ALONG WITH THE MEMORANDUM OF APPEAL THE ASSESSEE FILED THE ADDITIONAL GROUND WHICH IS AS UN DER :- FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE AD DITION MADE U/S 40(A)(IA) AMOUNTING TO RS.13,68,049/- BEING COMMISSION PAID T O FARMERS DURING THE WHOLE YEAR AND NO AMOUNT WAS PAYABLE AS AT THE END OF THE YEAR AND THEREFORE THE PROVISIONS OF SEC.40(A)(IA) WERE NOT APPLICABLE. SINCE THE ADDITIONAL GROUND IS LEADING TO THE LEGAL ISSUE AND THE SAME MAY BE DECIDED FIRST INSTEAD OF THE GROUND TAKEN BY THE ASSESSEE I N THE MEMORANDUM OF APPEAL. THEREFORE, THE LD. COUNSEL FOR ASSESSEE REQUESTED T O ACCEPT THE ADDITIONAL GROUND. ITA NO.1028/KOL/2010 2 3. THE LD. DR APPEARING ON BEHALF OF THE REVENUE DI D NOT OBJECT FOR ACCEPTANCE OF THE SAID REQUEST OF THE LD. COUNSEL FOR ASSESSEE. 4. AT THE TIME OF HEARING THE LD. COUNSEL APPEARING ON BEHALF OF ASSESSEE BY PLACING RELIANCE ON THE DECISION OF THE SPECIAL BEN CH, VISAKHAPATNAM IN THE CASE OF MERILYN SHIPPING & TRANSPORTS, VISAKHAPATNAM VS ACI T VIDE ITA NO.477/VIZ/2008 DATED 29.03.2012 SUBMITTED THAT IN THE PRESENT CASE ALSO AN AMOUNT OF RS.30,68,049/- AS COMMISSION WAS PAID TO THE FARMERS DURING THE WH OLE YEAR AND NO AMOUNT WAS OUTSTANDING AS AT THE END OF THE YEAR. THEREFORE TH E PROVISION OF SECTION 40(A)(IA) OF THE IT ACT WERE NOT APPLICABLE. HENCE HE REQUESTED TO DIRECT THE AO TO DELETE ADDITION OF RS.30,68,049/- U/S 40(A)(IA) OF THE IT ACT. 5. THOUGH LD. DR FOR THE REVENUE RELIED ON THE ORDE RS OF THE REVENUE AUTHORITIES DID NOT CONTROVERT THE SUBMISSIONS MADE BY THE LD. COUNSEL FOR ASSESSEE. 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 PROVISION OF SECTION 40(A)(IA) OF THE I.T. ACT IS APPLICABLE TO THE AMOUNT PAYABLE AT THE END OF THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR, IF NO TDS IS RECOVERED FROM THAT AMOUNT. IN THE PRESENT CASE THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE IS NO OUTSTANDING AT THE END O F THE PREVIOUS YEAR AS ON 31 ST MARCH, 2006. THEREFORE HE SUBMITTED THAT PROVISION OF SECT ION 40(A)(IA) OF THE IT ACT IS NOT APPLICABLE. 6.1. FROM MATERIAL AVAILABLE ON RECORD, IT IS OBSE RVED THAT THERE IS NO FINDING WHETHER THERE IS NO OUTSTANDING AMOUNT ON ACCOUNT O F THE COMMISSION PAYABLE AS ON 31/03/2006. THEREFORE, FOR VERIFICATION OF THE SAME WE SET ASIDE THE MATTER TO THE FILE OF AO TO VERIFY THE SAME AND ALLOW THE CLAIM OF ASS ESSEE IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH IN THE CASE OF MERILYN SHIPPING A ND TRANSPORTS, VISHAKAPATNAM. ITA NO.1028/KOL/2010 3 7. IN THE RESULT THE APPEAL OF ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 23.10.2012. SD/- SD/- , , , , MAHAVIR SINGH, JUDICIAL MEMBER . .. . ! ! ! !. .. . , , , , '# '# '# '# , C.D.RAO, ACCOUNTANT MEMBER. ( (( (!# !# !# !#) )) ) DATE: 23.10.2012. R.G.(P.S.) '3 . ,4 5'4'6- COPY OF THE ORDER FORWARDED TO: 1. SRI RABINDRA NATH MUKHERJEE, NEW MARKET, BONGAON, 2 4-PARGANAS (N)-743 235. 2 I.T.O., WD.49(1), KOLKATA. 3. THE C.I.T. 4. CIT(A)-XXXII, KOLKATA. 5. THE CIT(DR), KOLKATA BENCHES, KOLKATA -4 ,/ TRUE COPY, '3%0/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES ITA NO.1028/KOL/2010 4