Prithish Das, Kolkata V. ITO, WD-33(3), KOLKATA, Kolkata

ITA 1154/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1180 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 25-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARJEE
• Assessee Lawyers: R CHOUDHURY
• Keywords: Non-deduction of tax

Judgement Text

1 ITA NO.1154/KOL/2016 PRITHISH DAS., AY- 2010-11 , D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 1154/KOL/2016 ASSESSMENT YEAR: 2010-11 PRITHISH DAS (PAN: AFCPD0550P) VS. INCOME-TAX OFFIC ER, WD-33(3), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 17.01.2018 DATE OF PRONOUNCEMENT 28.03.2018 FOR THE APPELLANT SHRI R. CHOUDHURY, FCA FOR THE RESPONDENT SHRI ARINDAM BHATTACHARJEE, ADDL . CIT ORDER PER SHRI A.T.VARKEY, JM THE APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORD ER OF LD. CIT(A)-9, KOLKATA DATED 15.03.2016 FOR AY 2010-11. 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE DREW OUR ATTENTION TO GROUND NO. 3A WHICH THE ASSESSEE HAS PREFERRED AS ADDITIONAL G ROUND VIDE LETTER NO. 19.12.2017 AND HE SUBMITTED THAT HE IS PRESSING ONLY THIS GROUND FOR ADJUDICATION AND HE IS NOT PRESSING ORIGINAL GROUND NOS. 1 TO 3 FILED ALONG WITH THE AP PEAL, THEREFORE, GROUND NOS. 1 TO 3 ORIGINALLY RAISED GROUNDS OF APPEAL STAND DISMISSED . 3. THE ADDITIONAL GROUND OF APPEAL PREFERRED BY THE ASSESSEE IS AS UNDER: 3A. THAT ON THE FACT AND CIRCUMSTANCES OF THE CA SE THE ADDITIONAL OF 4,74,742 BEING LABOUR CHARGES OUT OF TOTAL ADDITION OF RS.50,97,955 IS BA D IN LAW AS WELL AS ON FACTS OF THE CASE. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A GOVERNMENT CONTRACTOR AND SOLE PROPRIETOR OF THE FIRM M/S. DAS ENTERPRISE AND SHRI DAS UNDER THE BANNER M/S. DAS ENTERPRISE. DURING SCRUTINY ASSESSMENT, THE AO FOU ND THAT THE ASSESSEE HAS MADE PAYMENT OF RS.50,97,955/- AS LABOUR CHARGES TO SIX CONTRACT ORS AND SINCE TAX HAS NOT BEEN DEDUCTED AT SOURCE HE APPLIED SEC. 40(A)(IA) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE 2 ITA NO.1154/KOL/2016 PRITHISH DAS., AY- 2010-11 ACT) AND DISALLOWED THE SAID SUM OF RS. 50,97,955 /-. AGGRIEVED BY THE ORDER OF THE AO, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO CONFIRMED THE ACTION OF AO AND DISMISSED THE GROUND OF APPEAL OF ASSESSEE. AGGRIEV ED, ASSESSEE PREFERRED THIS GROUND OF APPEAL BEFORE US. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT THE ASSESSEE IS A GOVT. CONTRAC TOR WHO HAS REALIZED AN AMOUNT OF RS.1,74,79,931/- FROM THE CONTRACT WORK WITH THE GO VT. THE ASSESSEE IN ITS P&L ACCOUNT HAS CLEARLY SHOWN THE LABOUR CHARGES DISBURSED BY H IM AT RS.46,23,213/- WHEREAS THE AO HAS DISALLOWED RS.50,97,955/-. WE NOTE THAT RS.46, 23,213/- WHICH WAS GIVEN ON ACCOUNT OF LABOUR CHARGES TO SIX CONTRACTORS. THE DETAILS OF THE AMOUNT DEBITED IN THE P&L ACCOUNT ACTUALLY DISALLOWED BY THE AO IS GIVEN IN A CHART A T PAGE 2 OF THE LD. CIT(A), WHICH IS AS UNDER: SL. NO. NAME OF THE CONTRACTOR LABOUR CHARGE BILL RAISED AS PER BOOKS AMOUNT OF ADDITION 1. 2. 3. 4. 5. 6. M/S. BIKAS DAS M/S. JITEN DAS & CO M/S. RATIS DAS SANJAY HALDER KHAGEN MONDAL M/S. BISWAJIT ROY TOTAL RS.5,85,490/- RS.12,80,030/- RS.7,41,756/- RS.7,03,177/- RS.5,87,770/- RS.7,24,990/- RS.46,23,213/- RS.5,85,490/- RS.13,76,825/- RS.8,65,965/- RS.9,56,915/- RS.5,87,770/- RS.7,24,990/- RS.50,97,955/- 6. FROM A PERUSAL OF THE AFORESAID CHART IT IS CLEA R THAT THE LABOUR CHARGES GIVEN BY THE ASSESSEE TO THE AFORESAID CONTRACTORS ARE TO THE TU NE OF RS.46,23,213/-. THE AMOUNT DISBURSED FOR PURCHASE OF MATERIAL TO THE AFORESAID CONTRACTORS THREE IN NUMBERS IS AS GIVEN BELOW: (I) M/S. JITEN DAS & CO. RS. 96,795/- (II) M/S. RATIS DAS RS.1,24,202/- (III) SANJAY HALDER RS.2,53,738/- WHICH WORKS OUT TO RS.4,74,735/-. IN THE LIGHT OF T HE AFORESAID FACTS, WE NOTE THAT THE AO ERRED IN DISALLOWING RS.50,97,955/- WHICH INCLUDES RS.4,74,735/- WHICH IS THE COST OF THE MATERIAL. THEREFORE, WE FIND FORCE IN THE CONTENTIO N OF THE LD. AR THAT RS.4,74,735/- WAS ERRONEOUSLY ADDED BY THE AO FOR DISALLOWING THE SAM E AS LABOUR PAYMENT TO CONTRACTORS FOR 3 ITA NO.1154/KOL/2016 PRITHISH DAS., AY- 2010-11 VIOLATION OF NON-DEDUCTION OF TAX AT SOURCE. THERE FORE, WE ALLOW THIS GROUND OF APPEAL OF THE ASSESSEE. 7. IN THE RESULT, APPEAL OF ASSESSEE IS PARTLY ALLO WED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 28.03.2018 SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED :28TH MARCH, 2018 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI PRITHISH DAS, PROP. DAS ENTERPR ISE, SHOP NO. 8, NABANIR APARTMENT, MAHISGOTE, DHALIPARA, RAJARHAT, KOL-7001 02. . 2 RESPONDENT ITO, WARD-33(3), KOLKATA. 3. THE CIT(A) KOLKATA. 4. 5. CIT KOLKATA DR, ITAT, KOLKATA. / TRUE COPY, BY ORDER, SR. PVT. SECRETARY