ITO,Ward-38(3), Kolkata, Kolkata V. M/s. Rising Sun Overseas Construction, Kolkata

ITA 1137/KOL/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5641 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2014
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 07-08-2012
• Court: TRIBUNAL
• Department Lawyers: SATYAJIT MONDAL
• Assessee Lawyers: N M BANSALI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C , KOLKATA [BEFORE HONBLE SRI SHAMIM YAHYA, AM & HONBLE SR I GEORGE MATHAN, JM] ITA NO.1137/KOL/2012 ASSESSMENT YEAR : 2007-08 ( APPELLANT ) (RESPONDENT) I.T.O.WARD- 38(3) -VS- M/S.RISING SUN OVERSEAS KOLKATA CONSTRUCTION, KOLKATA (PAN : AAIFR 8551 M) C.O.NO.71/KOL/2013 ITA NO.1137/KOL/2012 ASSESSMENT YEAR : 2007-08 ( APPELLANT ) (RESPONDENT) M/S.RISING SUN OVERSEAS -VS- I.T.O.WARD- 38( 3) CO NSTRUCTION, KOLKATA KOLKATA (PAN : AAIFR 8551 M) FOR THE DEPARTMENT SHRI SATYAJIT MONDAL, JCIT, SR.DR FOR THE RESPONDENT SHRI N.M.BANSALI, ADVOCATE DATE OF HEARING : 25.03.2014 DATE OF PRONOUNCEMENT : 25. 03.2014. ORDER PER SHRI GEORGE MATHAN, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. C.I.T.(A)- XXIV, KOLKATA IN APPEAL NO.688/CIT(A)-XXIV/38(3)/09-10. D ATED 29.06.2012 FOR ASSESSMENT YEAR 2007-08. 2. SHRI SATYAJIT MONDAL, JCIT, SR.DR REPRESENTED O N BEHALF OF THE REVENUE AND SHRI N.M.BANSALI, ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE. 3. AT THE TIME OF HEARING IT WAS SUBMITTED BY THE LD. DR THAT THE ISSUE IN THE REVENUES APPEAL WAS AGAINST THE ACTION OF LD. CIT( A) IN DELETING THE ADDITION MADE BY AO BY INVOKING THE PROVISION OF SECTION 40(A)(IA ) OF THE ACT ON ACCOUNT OF NON DEDUCTION OF TDS IN RESPECT OF THE LABOUR PAYMENTS AND BROKERAGE. IT WAS THE SUBMISSION THAT THE LD. CIT(A) HAD DELETED THE ADDI TION BY RELYING UPON THE DECISION OF HONBLE SPECIAL BENCH IN THE CASE OF MERILYN SHI PPING TRANSPORT REPORTED IN ITA.NO.1137/KOL/2012 & C.O.71/KOL/2013 M/S.RISING SUN OVERS EAS CONSTRUCTION A.YR.2007-08 2 (2012) 20 TAXMAN.COM 244. IT WAS THE SUBMISSION THA T THE SAID DECISION OF THE SPECIAL BENCH OF THIS TRIBUNAL WAS NO MORE GOOD LAW IN VIEW OF THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CRESCENT EXPORT SYNDICATE REPORTED IN (2013) 33 TAXMANN.COM 250 (CALCUTTA)/216 TAXMAN 258 (CALCUTTA ). IT WAS THE SUBMISSION THAT THE ORDER OF LD. CIT(A) MAY BE REVERSED. 4. IN REPLY THE LD. AR SUBMITTED THAT AS THE LD. CI T(A) HAD NOT GONE INTO THE MERITS OF THE ISSUE IN THE APPEAL THE ISSUE IN THE APPEAL MAY BE RESTORED TO THE FILE OF LD.CIT(A) FOR ADJUDICATION ON MERITS. IN REGARD TO THE CROSS OBJECTION FILED BY THE ASSESSEE HE DID NOT PRESS THE CROSS OBJECTION. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS THE CROSS OBJECTION FILED BY THE ASSESSEE IS NOT PRESSED THE SAME IS DISMISSED. IN R ESPECT OF THE REVENUES APPEAL AS IT IS NOTICED THAT THE DECISION OF THE HONBLE SPECIAL BENCH OF THIS TRIBUNAL IN THE CASE OF MERILYN SHIPPING TRANSPORT REFERRED TO SUPRA HAS BEEN REVERSED BY THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CRESCENT EXPORT SYNDICATE REFERRED TO SUPRA, WE ARE OF THE VIEW THAT THE FINDINGS OF LD. CIT(A) IN DELE TING THE ADDITION BY RELYING UPON THE DECISION OF THE SPECIAL BENCH IN THE CASE OF MERILY N SHIPPING TRANSPORT NO MORE SURVIVES AND THE SAME STANDS REVERSED. HOWEVER, AS IT IS NOTICED THAT THE LD. CIT(A) HAS NOT ADJUDICATED THE ISSUES IN THE APPEAL ON MER ITS THE ISSUES IN THIS APPEAL ARE RESTORED TO THE FILE OF LD. CIT(A) FOR ADJUDICATION ON MERITS IN RESPECT OF THE ISSUE OF LIABILITY FOR TDS. IN THE CIRCUMSTANCES, THE APPEAL FILED BY REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND THE CROSS OBJECTION FI LED BY THE ASSESSEE STANDS DISMISSED. 6. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS PARTLY ALLOWED AND THE APPEAL FILED BY ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25.03.2014. SD/- SD/- [SHAMIM YAHYA] [ GEORGE MATHAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 25.03.2014. R.G.(.P.S.) ITA.NO.1137/KOL/2012 & C.O.71/KOL/2013 M/S.RISING SUN OVERS EAS CONSTRUCTION A.YR.2007-08 3 COPY OF THE ORDER FORWARDED TO: 1. M/S.RISING SUN OVERSEAS CONSTRUCTION, 127B, AUROBIN DO SARANI, KOLKATA- 700006. 2 I.T.O., WARD-38(3), KOLKATA. 3 . CIT(A)-XXIV, KOLKATA. 4. CIT - KOLKATA. 5. CIT(A)DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES