ITO, Ward - 52(3), Kolkata, Kolkata V. Sachidananda Sharma, Kolkata

ITA 1155/KOL/2012

• Counselvise Citation: 115523514 RSA 2012
• Duration Of Justice: 2 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 09-08-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DILIP KUMAR MITRA ADDITIONAL
• Assessee Lawyers: K M ROY F
• Section: 194C

Judgement Text

I.T.A. NO . 1155 /KOL./201 2 & C.O. NO. 16/KOL/2013 (IN ITA NO. 1155/KOL/2012) ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI SHAMIM YAHYA (ACCOUNTANT MEMBER) , AND SHRI GEORGE MATHAN (JUDICIAL MEMBER) I.T.A. NO. 1155 /KOL . / 20 1 2 ASSESSMENT YEAR : 200 8 - 20 0 9 INCOME TAX OFFICER,.................... .... . .... ............ .. .APP ELL ANT WARD - 52( 3 ) , KOLKATA , 1 ST FLOOR, 2, GARIAHAT ROAD (SOUTH), KOLKATA - 700 068 - VS. - SACHIDANANDA SHARMA,......... .. ...... ................ . RESPONDENT 121, DR. G.S. BOSE ROAD, KOLKATA - 700 039 [PAN : A LGPS 2729 B ] & C.O. NO. 16/KOL/2013 (ARISING OUT OF ITA NO. 1155/KOL/2012) ASSESSMENT YEAR : 2008 - 2009 SACHIDANANDA SHARMA,................................. . ..CROSS OBJECTOR 121, DR. G.S. BOSE ROAD, KOLKATA - 700 039 [PAN : ALGPS 2729 B] - VS. - INCOME TAX OFFICER,............................. ............ ...... . RESPONDENT WARD - 52(3), KOLKATA, 1 ST FLOOR, 2, GARIAHAT ROAD (SOUTH), KOLKATA - 700 068 APPEARANCES BY: SHRI DILIP KUMAR MITRA, ADDITIONAL CIT, SR. D.R., FOR THE DEPARTMENT SHR I K.M. ROY , F.C.A. , FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : DEC EM BER 1 2 , 2 01 4 DATE OF PRONOUNCING THE ORDER : DEC EM BER 16 , 201 4 I.T.A. NO . 1155 /KOL./201 2 & C.O. NO. 16/KOL/2013 (IN ITA NO. 1155/KOL/2012) ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 2 OF 4 O R D E R PER GEORGE MATHAN : ITA 1155/KOL/2012 IS AN APPEAL FILED BY THE REVENU E AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) - XXXII I , KOLKATA IN APPEAL NO. 207 / CIT( A ) - XXXI I I/ ITO - WD - 52(3),KOLKATA/10 - 11 DATED 2 6 . 06 .201 2 FOR TH E ASSESSMENT YEAR 200 8 - 0 9 , AND C.O. 16/KOL/2013 IS A CROSS OBJECTION FILED BY THE ASSESSEE IN THE REVENUE S APPEAL . 2 . SHRI DILIP KUMAR MITRA, ADDL. CIT, SR. D.R., REPRESENTED ON BEHALF OF THE REVENUE AND SHRI K.M. ROY, FCA , REPRESENTED ON BEHALF OF THE ASSESSEE . 3 . AT THE TIME OF HEARING, IT WAS SUBMITTED BY THE LD. A .R. THAT HE DOES NOT WISH TO PRESS THE CROSS OBJEC TION. CONSEQUENTLY THE CROSS OBJECTION FILED BY THE ASSESSEE STANDS DISMISSED AS NOT PRESSED. 4. IN THE REVENUE S APPEAL, THE REVENUE HAS RAISED THE FOLLOWING GROUND: - THAT THE LD. CIT(APPEALS), KOLKATA ERRED IN LAW IN DELETING THE DISALLOWANCE OF EXPEND ITURE U/S. 40(A)(IA) UNDER THE HEAD LABOUR CHARGES BECAUSE OF BEING NOT PAYABLE AT THE YEAR END . 5. IT WAS SUBMITTED BY THE LD. SR. D.R. THAT IN THE COURSE OF ASSESSMENT, IT WAS NOTICED THAT THE ASSESSEE HAD PAID LABOUR CHARGES TO 19 PERSONS. IT WAS THE SUBMISSION THAT AS IT WAS NOTICED THAT TOTAL AMOUNT PAID TO THE 19 PERSONS WAS TO AN EXTENT OF RS.18,98,842/ - AND TDS HAD NOT BEEN DEDUCTED ON THE SAME UNDER SECTION 194C OF THE ACT , T HE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT HAD BEEN INVOKED AND DISAL LOWANCE MADE. IT WAS THE SUBMISSION THAT THE ASSESEE HAD , IN FACT , ADMITTED THAT TDS HAD NOT BEEN MADE IN THE COURSE OF ASSESSMENT. IT WAS THE SUBMISSION THAT ON APPEAL BEFORE THE LD. CIT(APPEALS) , THE ADDITION MADE BY THE ASSESSING OFFICER HAD BEEN DELETE D ON THE GROUND THAT THE PERSONS TO WHOM THE I.T.A. NO . 1155 /KOL./201 2 & C.O. NO. 16/KOL/2013 (IN ITA NO. 1155/KOL/2012) ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 3 OF 4 PAYMENTS WERE MADE WERE NOT CONTRACTORS BUT DAILY WAGE LABOURERS AND NO CONTRACT FOR A DAY EXCEEDED MORE THAN RS.20,000/ - AND THERE WAS NO AMOUNT OUTSTANDING AS ON THE YEAR END AND CONSEQUENTLY IN VIEW OF THE DE CISION OF THE SPECIAL BENCH OF THIS TRIBUNAL IN THE CASE OF MERILYN SHIPPING & TRANSPORTS REPORTED IN 136 ITD 23 , NO DISALLOWANCE WAS CALLED FOR. IT WAS THE SUBMISSION BY THE LD. SR. D.R. THAT THE LD. CIT(APPEALS) ERRED IN NOT CONSIDERING THE FACT THAT TH E AGGREGATE OF THE PAYMENTS TO EACH OF THE PERSONS EXCEEDED RS.50,000/ - AND THOUGH THE ASSESSEE HAS CLAIMED THE PERSONS TO BE EMPLOYEES OF THE ASSESSEE, NO EVIDENCE WHATSOEVER HAD BEEN PRODUCED BEFORE THE ASSESSING OFFICER. IT WAS THE SUBMISSION THAT THE I SSUE COULD BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE - ADJUDICATION. 6. IN REPLY, LD. A.R. SUBMITTED THAT THE 16 PERSONS WERE EMPLOYEES OF THE ASSESSEE. IT WAS THE SUBMISSION THAT THE PERSONS BEING EMPLOYEES, NO TDS WAS LIABLE TO BE MADE UNDE R SECTION 194C OF THE ACT. HE VEHEMENTLY SUPPORTED THE ORDER OF THE LD. CIT(APPEALS). 7. IN REPLY LD. SR. D.R. SUBMITTED THAT THE DECISION OF THE HON BLE SPECIAL BENCH IN THE CASE OF MERILYN SHIPPING & TRANSPORTS REPORTED IN 136 ITD 23 HAD BEEN REVERSED B Y THE HON BLE JURISDICTIONAL HIGH COURT OF CALCUTTA IN THE CASE OF CRESCENT EXPORTS SYNDICATE REPORTED IN (2013) 33 TAXMAN.COM 250 (CALCUTTA). 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS THE FACT ITSELF IN THE PRESENT CASE IS NOT CLEAR IN SO FAR AS TH E ASSESSING OFFICER HAS TREATED THE SAID 19 PERSONS AS CONTRACTORS O R SUB - CONTRACTORS WORKING FOR THE ASSESSEE AND THE ASSESSEE IS CLAIMED THEM TO BE EMPLOYEES OF THE ASSESSEE , T HE ISSUE IN THIS APPEAL IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR R E - ADJUDICATION AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY TO SUBSTANTIATE HIS CASE. THE ASSESSEE SHALL PRODUCE ALL SUCH I.T.A. NO . 1155 /KOL./201 2 & C.O. NO. 16/KOL/2013 (IN ITA NO. 1155/KOL/2012) ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 4 OF 4 EVIDENCES TO PROVE THAT THE SAID 19 PERSONS WERE THE EMPLOYEES OF THE ASSESSEE AND NOT CONTRACTORS OR SUB - CONTRACTORS. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND THE CROSS OBJECTION FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH DEC EM BER, 2014. SD/ - SD/ - SHAMIM YAHYA GEORGE MATHAN ( ACCOUNTANT MEMBER) ( JUDICIAL MEMBER) KOLKATA, THE 16 TH D AY OF DEC EM B ER , 201 4 COPIES TO : (1) INCOME TAX OFFICER, WARD - 52(3), KOLKATA, 1 ST FLOOR, 2, GARIAHAT ROAD (SOUTH), KOLKATA - 700 068 (2) SACHIDANANDA SHARMA, 121, DR. G.S. BOSE ROAD, KOLKATA - 700 039 (3) COMMISSIONER OF INCOME TAX (APPEALS) ( 4 ) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE B Y ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.