Animesh Sadhu, Hooghly V. A.C.I.T Cir - 1,Hoogly., Hooghly

ITA 11/KOL/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7908 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 02-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: IMLIMEREN JAMIR

Judgement Text

I.T.A. NO. 11/KOL./2013 ASSESSMENT YEAR: 2008-2009 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI SHAMIM YAHYA (ACCOUNTANT MEMBER), AND SHRI GEORGE MATHAN (JUDICIAL MEMBER) I.T.A. NO. 11/KOL./ 2013 ASSESSMENT YEAR : 2008-2009 ANIMESH SADHU,.................................... ...............APPELLANT C/O. SHRI SOMNATH GHOSH, ADVOCATE, SEVEN BROTHERS LODGE, P.O. BUROSHIBTALA, P.S. CHINSURAH, DISTRICT- HOOGHLY-712 105 [PAN : AVKPS 4668 M] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,....RESPO NDENT CIRCLE-1, HOOGHLY, AAYAKAR BHAWAN, G.T. ROAD, KHADINA MORE, CHINSURAH, DIST. HOOGHLY-712 101 APPEARANCES BY: SHRI SOMNATH GHOSH, ADVOCATE, FOR THE ASSESSEE SHRI IMLIMEREN JAMIR, JCIT, FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : NOVEMBER 11, 201 4 DATE OF PRONOUNCING THE ORDER : NOVEMBER 12, 2014 O R D E R PER GEORGE MATHAN: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXXVI, KOLKATA IN APPEAL NO. 313/CIT(A)-XXXVI/KOL/CIR.1, HGL./10-11 DATED 16.11. 2012 FOR THE ASSESSMENT YEAR 2008-09. I.T.A. NO. 11/KOL./2013 ASSESSMENT YEAR: 2008-2009 PAGE 2 OF 4 2. SHRI SOMNATH GHOSH, ADVOCATE, REPRESENTED ON BEH ALF OF THE ASSESSEE AND SHRI IMLIMEREN JAMIR, JCIT, REPRESENTE D ON BEHALF OF THE REVENUE. 3. AT THE TIME OF HEARING, IT WAS SUBMITTED BY THE LD. A.R. THAT IN GROUND NO. 1 THE ASSESSEE HAS CHALLENGED THE ACTION OF THE LD. CIT(APPEALS) IN CONFIRMING THE DISALLOWANCE OF THE EMPLOYEES CONTRIBUTION TO THE PROVIDENT FUND WHICH WAS PAID W ITHIN THE PRESCRIBED DUE DATE. IT WAS THE SUBMISSION THAT THE EMPLOYEES CONTRIBUTION TO PROVIDENT FUND WAS PAID ON 14.02.2008 FOR WHICH HE SHOWED THE COPY OF THE CHALLAN AT PAGE 23 OF THE PAPER BOOK. IT WAS TH E SUBMISSION THAT THE ASSESSMENT YEAR WAS 2008-09. IT WAS THE SUBMISSION THAT IN VIEW OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF CIT VS.- VIJAY SHREE LIMITED REPORTED IN 224 TAXMAN 12 (CAL. ) THE DISALLOWANCE WAS LIABLE TO BE DELETED. 4. IN REPLY, LD. D.R. VEHEMENTLY SUPPORTED THE ORDE R OF THE ASSESSING OFFICER AND LD. CIT(APPEALS). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS IT IS NOTICED THAT THE EMPLOYEES CONTRIBUTION TO THE PROVIDENT FUND HAS B EEN PAID BEFORE THE DUE DATE OF FILING OF THE RETURN AS ALSO BEFORE 31 ST MARCH, 2008, IN VIEW OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COU RT IN THE CASE OF VIJAY SHREE LIMITED REFERRED TO SUPRA, THE DISALLOWANCE A S MADE BY THE ASSESSING OFFICER AND AS CONFIRMED BY THE LD. CIT(A PPEALS) STANDS DELETED. CONSEQUENTLY GROUND NO. 1 OF THE ASSESSEE S APPEAL STANDS ALLOWED. 6. IN RESPECT OF GROUNDS NO. 2 & 3, IT WAS THE SUBM ISSION BY THE LD. A.R. THAT IN THE COURSE OF ASSESSMENT THE ASSESSING OFFICER HAD DISALLOWED 20% OF THE EXPENSES UNDER THE HEAD CARRIAGE INWARD , CARRIAGE OUTWARD, LOADING & UNLOADING EXPENSES AND LABOU R CHARGES ON THE I.T.A. NO. 11/KOL./2013 ASSESSMENT YEAR: 2008-2009 PAGE 3 OF 4 GROUND THAT INDEPENDENT VERIFICATION COULD NOT BE M ADE TO FIND OUT THE AUTHENTICITY OF THESE EXPENSES. IT WAS THE SUBMISSI ON THAT ON FIRST APPEAL, LD. CIT(APPEALS) HAD REDUCED THE DISALLOWANCE TO 10 %. IT WAS THE SUBMISSION THAT NO DEFECTS HAVING BEEN POINTED OUT, NO DISALLOWANCE WAS CALLED FOR. 7. IN REPLY, LD. D.R. VEHEMENTLY SUPPORTED THE ORDE R OF THE LD. CIT(APPEALS). IT WAS THE SUBMISSION THAT THE LD. CI T(APPEALS) HAD ALREADY GRANTED THE ASSESSEE 10% RELIEF. NO FURTHER RELIEF WAS CALLED FOR. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERU SAL OF THE ASSESSMENT ORDER SHOWS THAT THE ASSESSING OFFICER H AS DISALLOWED 20% OF THE EXPENSES ON ESTIMATE BASIS ON THE GROUND THAT N O INDEPENDENT VERIFICATION TO BE MADE TO FIND OUT THE AUTHENTICIT Y OF THE EXPENSES. LD. CIT(APPEALS) HAS REDUCED THE SAME ON THE SAME GROUN D. HOWEVER, WE ARE OF THE VIEW THAT NO ESTIMATED DISALLOWANCE CAN BE M ADE FOR INABILITY TO MAKE INDEPENDENT VERIFICATION. IF ANY SPECIFIC EXPE NDITURE IS UNVERIFIABLE OR IS UN-VOUCHED, THEN SUCH SPECIFIC EXPENDITURE IS DISALLOWABLE. HERE NO SUCH SPECIFIC IDENTIFICATION HAS BEEN DONE. IN THES E CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ESTIMATED DISALLOWANCE AS CONF IRMED BY THE LD. CIT(APPEALS) IS UNSUSTAINABLE. CONSEQUENTLY THE SAM E STANDS DELETED. IN THE RESULT, GROUNDS NO. 2 & 3 OF THE ASSESSEES APP EAL STAND ALLOWED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH NOVEMBER, 2014. SD/- SD/- SHAMIM YAHYA GEORGE MATHAN (ACCOUNTANT MEMBER) (JU DICIAL MEMBER) KOLKATA, THE 12 TH DAY OF NOVEMBER, 2014 I.T.A. NO. 11/KOL./2013 ASSESSMENT YEAR: 2008-2009 PAGE 4 OF 4 COPIES TO : (1) ANIMESH SADHU, C/O. SHRI SOMNATH GHOSH, ADVOCATE, SEVEN BROTHERS LODGE, P.O. BUROSHIBTALA, P.S. CHINSURAH, DISTRICT- HOOGHLY-712 105 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, HOOGHLY, AAYAKAR BHAWAN, G.T. ROAD, KHADINA MORE, CHINSURAH, DIST. HOOGHLY-712 101 (3) COMMISSIONER OF INCOME-TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.