ITO, Ward - 33(2), Kolkata, Kolkata V. Shri Kajal Das, Kolkata

ITA 1131/KOL/2011

• Counselvise Citation: 113123514 RSA 2011
• Duration Of Justice: 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 02-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P P SARKAR
• Assessee Lawyers: K N KUNDU; M GHOSH A R
• Keywords: Non-deduction of tax
• Section: 194C

Judgement Text

, C , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA ( ) . . , , . . . . !' # !' # !' # !' # , , ) [BEFORE SRI S.V. MEHROTRA, A.M. & SHRI N. VIJAYA K UMARAN, J.M.] $ $ $ $ / I.T.A NO. 1131/KOL/2011 ASSESSMENT YEAR : 2008-2009 INCOME TAX OFFICER, WARD-33(2), KOLKATA -V S.- SHRI KAJAL DAS, KOLKATA (PAN : ADTPD 9760 E) ( %& /APPELLANT ) ( '(%& / RESPONDENT ) FOR THE APPELLANT : SHRI P.P. SARKAR, D .R. FOR THE RESPONDEN T : S/SHRI K.N. KUNDU & M. GHOSH, A.R. # ) * + # ) * + # ) * + # ) * + /DATE OF HEARING : 03.01.2012 ,- * + ,- * + ,- * + ,- * + /DATE OF PRONOUNCEMENT : 03.01.2012 . / ORDER PER SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER/ . . , :- THIS APPEAL FILED BY THE REVENUE IS AGAINST THE ORD ER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XX, KOLKATA DATED 17.06.2011 FOR THE ASSE SSMEN YEAR 2008-09. 2. BRIEF FACTS OF THE CASE ARE THAT IN THE RELEVANT ASSESSMENT YEAR, THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF CONTRACT WORKS FOR TRANSPORTATIO N OF GARBAGE/SILT/RUBBISH/TREE LEAVES AND BRANCHES BY LORRY AND DUMPING THEM AT LOCAL DUMPING GROUND UNDER KOLKATA MUNICIPAL CORPORATION. THE ASSESSING OFFICER NOTICED THAT THE PAYMENT FOR HIRING OF LORRY/TRUCKS AND LABOUR WERE MAIN HEADS FOR EXPENDITURE. THE ASSESSI NG OFFICER NOTED THAT FOR THE PURPOSE ON HIRING OF LORRY/TRUCKS, THE ASSESSEE HAD DEBITED RS .72,19,759/- IN ITS PROFIT & LOSS A/C. HE NOTICED FROM THE DETAILS FILED BY THE ASSESSEE THAT THE TOTAL PAYMENT AGGREGATING TO RS.39,76,640/- HAD BEEN MADE WITHOUT EFFECTING PROV ISION OF SECTION 194C BECAUSE IN EACH SINGLE CASE PAYMENT EXCEEDED RS.50,000/- AND ASSESS EES GROSS RECEIPT EXCEEDED THE MONETARY LIMIT SPECIFIED UNDER SECTION 44AB OF THE ACT. HE F URTHER NOTED THAT THE ASSESEE ALSO FAILED TO OBTAIN AND PRODUCE DECLARATION OF SUPPLIERS OF TRUC KS/LORRY FOR NON-DEDUCTION OF TAX AT SOURCE. HE, THEREFORE, MADE A DISALLOWANCE UNDER SECTION 40 (A)(IA) OF RS.39,76,640/-. LD. CIT(APPEALS) DELETED THE DISALLOWANCE INTER ALIA, OBSERVING THA T THE ASSESSING OFFICER HAD BROUGHT NO MATERIAL ON RECORD TO SHOW THAT THERE WAS ANY ORAL OR WRITTEN CONTRACT BETWEEN THE ASSESSEE AND THE TRUCK OWNERS, THEREFORE, THE ASSESSEE WAS NOT L IABLE TO DEDUCT TAX UNDER SECTION 194C OF THE ACT AND SO, THE PROVISIONS OF SECTION 40(A)(IA) HAD NO APPLICATION. ITA NO. 1131/KOL./2011 2 3. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND HAVE PERUSED THE RECORDS OF THE CASE. THE FACTS ARE NOT DISPUTED. BEFORE LD. CI T(APPEALS), IT WAS SUBMITTED THAT THE ASSESSEE HAD HIRED TRUCKS FROM OPEN MARKET AS PER ITS REQUIR EMENTS, AND, PAYMENTS WERE MADE ACCORDINGLY. BUT THERE WAS NEITHER ORAL NOR WRITTEN CONTRACT BETWEEN THE ASSESSEE AND TRUCK OWNERS. THE PAYMENTS TO THE TRUCK OWNERS WERE MADE THROUGH BANKING CHANNEL. FURTHER THE ASSESSEE DID NOT ASSIGN ANY PARTICULAR PORTION OF W ORK TO THE TRUCK OWNERS. NO SUB-CONTRACT AGREEMENT EITHER WRITTEN OR ORAL EXISTED BETWEEN TH E ASSESSEE AND THE TRUCK OWNERS. THE ASSESSEE RELIED ON THE FOLLOWING DECISIONS :- (I) ACIT VS.- STUMM INDIA IN ITA NO. 1158/KOL./200 8 (ITAT, B BENCH, KOLKATA); (II) RAKSHIT TRANSPORT VS.- ACIT IN ITA NO. 261/KO L./2009 (ITAT, A BENCH, KOLKATA); (III) M/S. SAMANWAYA VS.- ACIT IN ITA NO. 484/KOL. /2008; (IV) CIT VS.- UNITED RICE LAND LTD. (2008) 217 CTR (P&H) 332; (V) MRS. KAVITA CHUNG IN ITA NO. 253/KOL./2010 [124 ITD 40 (VISHAKHAPATNAM)] THE AFOREMENTIONED FACTS HAVE NOT BEEN CONTROVERTED BY THE DEPARTMENT AND, THEREFORE, IN VIEW OF THE DECISION OF THE HONBLE PUNJAB & HARYANA HIG H COURT IN THE CASE OF UNITED RICE LAND LTD. (SUPRA), THE PROVISIONS OF SECTION 194C WERE N OT APPLICABLE. IT IS NOT DISPUTED THAT THE ASSESSEE HAD NOT ASSIGNED ANY OF ITS CONTRACTUAL OB LIGATIONS TO THE TRANSPORTERS. IT WAS A MERE CASE OF HIRING THE TRUCKS FROM THE MARKET AS PER TH E REQUIREMENTS AND NOT AS PER ANY CONTRACT. WE, THEREFORE, IN VIEW OF VARIOUS DECISIONS RELIED UPON BY LD. CIT(APPEALS) NOTED ABOVE, DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD. CIT(APPE ALS) AND UPHOLD HIS ORDER AND REJECT THE GROUND OF APPEAL TAKEN BY THE REVENUE. 4. IN THE RESULT, THE APPEAL FILED BY THE DEPARTMEN T IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/01/2012. SD/- SD/- [N. VIJAYA KUMARAN / . . . . !' # !' # !' # !' # ] [S.V. MEHROTRA/ ( . . )] JUDICIAL MEMBER/ ACCOUNTANT MEMBER/ DATED : 03/ 01/ 2012 ITA NO. 1131/KOL./2011 3 COPY OF THE ORDER FORWARDED TO: 1. SHRI KAJAL DAS, C-18, BRAHMAPUR MORE, GARIA, KOLKAT A-96 2 ITO, WARD-33(2), KOLKATA. 10B, MIDDLETON ROW, 3 RD FLOOR, KOLKATA-71 3. CIT(APPEALS)- ,KOLKATA 4. CIT, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, I.T.A.T., KOLKATA LAHA, SR. P.S.