ITO,Ward-6(2), Kolkata, Kolkata V. Jain Express(P)Ltd, Kolkata

ITA 1205/KOL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83071 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2014
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 17-08-2012
• Court: TRIBUNAL
• Department Lawyers: ATAHAR H CHAUDHURY JDIT
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [BEFORE HONBLE SRI MAHAVIR SINGH, JM & HONBLE S RI SHAMIM YAHYA, AM ] ITA NO.1205/KOL/2012 ASSESSMENT YEAR : 2008-09 ( APPELLANT ) (RESPONDENT) I.T.O., WARD-6(2), . -VS- JAIN EXPRESS PVT.LTD. KOLKATA KOLKATA (PAN:AABCJ 3959 R) FOR THE APPELLANT SHRI ATAHAR H.CHAUDHURY, JDIT SR..DR FOR THE RESPONDENT NONE DATE OF HEARING : 11.08.2014 DATE OF PRONOUNCEMENT : 11. 08.2014. ORDER PER SHRI SHAMIM YAHYA, AM THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T ORDER OF LD. C.I.T.(A)- VI, KOLKATA DATED 25.06.2012 AND PERTAINS TO ASSESSMEN T YEAR 2008-09.. 2. THE GROUNDS OF APPEAL IN THIS APPEAL READ AS UN DER :- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , LD. CIT(A) HAS ERRED IN LAW IN DELETING THE ADDITIONS MADE BY THE AO ON ACCOUNT OF DISALLOWANCE U/S 40(A)(IA) FOR NON DEDUCTION OF TDS OF RS.13,74,406/- FOR RENT PAID FO R GODOWN TO KOLKATA PORT TRUST AND RS.25,43,326/- FOR LORRY HIRE CHARGES TO VARIOUS TR UCK OWNERS WITHOUT APPRECIATING THE FACT THAT THE KOLKATA PORT TRUST IS NOT EXEMPTE D U/S 10(20A)/10(20) OF THE I.T.ACT, 1961 AND THE ASSESSEE COMPANY, AS A DEDUCTOR, HAS N OT DEDUCTED TDS AT THE TIME OF PAYMENT OF LORY HIRE CHARGES TO THE TRUCK OWNERS HA VING SEVERAL NUMBER OF TRUCKS. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD.CIT(A) ERRED IN LAW IN DELETING THE ADDITIONS ON THE BASIS OF ASSUMPTION AND CERTAI N JUDGEMENTS NOT GIVING DUE WEIGHTAGE ON THE APPLICABILITY OF THE SAME IN THE I NSTANT CASE. 3. THAT THE APPELLANT CRAVES FOR LEAVE TO ADD, DELE TE OR MODIFY ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3. IN THIS CASE AO IN THE ASSESSMENT ORDER PASSED U/S 143(3) HAS MADE ADDITION U/S 40(A)(IA) OF THE ACT AMOUNTING TO RS.13,74,406/- ON ACCOUNT OF NON DEDUCTION OF TDS ON RENT PAID TO KOLKATA PORT TRUST AND ON ACCOUNT O F LORRY HIRE CHARGES AMOUNTING TO RS.25,43,326/-. ITA.NO.1205/KOL/2012 M/S.JAIN E XPRESS PVT..LTD., A.YR.2008-09 2 4. UPON ASSESSEES APPEAL THE LD. CIT(A)IN AN EX-PA RTE ORDER NOTED THAT THE AMOUNTS INVOLVED IN THIS CASE WERE ALREADY PAID AND NOTHING WAS PAYABLE ENDING 31 ST MARCH OF THE YEAR. IN THIS REGARD THE LD. CIT(A) RE FERRED TO THE DECISION OF ITAT VISAKHAPATNAM BENCH (SB) IN THE CASE OF MERILYN SHI PPING & TRANSPORT VS ADDL.CIT IN IT APPEAL NO.477 (VIZ) OF 2008 FOR THE PROPOSIT ION THAT SECTION 40(A)(IA) OF THE ACT ARE APPLICABLE ONLY TO THE AMOUNTS OF EXPENDITU RE WHICH ARE PAYABLE AS ON 31 ST MARCH EVERY YEAR AND IT CANNOT BE INVOKED TO DISALL OW WHICH HAD BEEN ACTUALLY PAID DURING THE PREVIOUS YEAR WITHOUT DEDUCTION OF TDS. HENCE THE LD. CIT(A) FOLLOWING THE ABOVE DECISION DISALLOWANCE OF RS.13,74,406/- AS RENT PAID TO KOLKATA PORT TRUST AND LORRY HIRE CHARGES AMOUNTING TO RS.25,43,326/- WAS DELETED. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEAL BE FORE US. 5. WE HAVE HEARD THE LD. DR. NONE APPEARED ON BEHAL F OF THE ASSESSEE. UPON CAREFUL CONSIDERATION WE NOTE THAT THE MATTER CAN B E DISPOSED OFF AFTER HEARING THE LD. DR AND PERUSING THE RECORDS. 6. UPON CAREFUL CONSIDERATION WE NOTE THAT THE LD. CIT(A) HAS GRANTED RELIEF TO THE ASSESSEE BY FOLLOWING THE DECISION OF SPECIAL BENCH ITAT VISHAKAPATNAM IN THE CASE OF MERLYN SHIPPING AND TRANSPORT (SUPRA). HOWEVER W E NOTE THAT THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS CRE SCENT EXPORTS SYNDICATE IN ITAT NO.20 OF 2013 IN GA NO.190 OF 2013 DATED 3 RD APRIL, 2013 HAS HELD THAT THE ENTIRE PAYMENT THAT IS PAID AS WELL AS PAYABLE ARE SUBJECT TO TDS. ACCORDINGLY FOLLOWING THE PRECEDENT FROM THE HONBLE JURISDICTIONAL HIGH COUR T WE HOLD THAT DELETION OF ADDITION BY THE LD. CIT(A) BY FOLLOWING THE DECISIO N OF ITAT VISHAKHAPATNAM (SB) IN THE CASE OF MERILYN SHIPPING AND TRANSPORT (SUPRA) WAS NOT CORRECT. HOWEVER, WE NOTE THAT THE ASSESSEE HAS TAKEN OTHER GROUNDS ALSO WHER E IT HAS BEEN URGED THAT THE ASSESSEE WAS NOT TO BE HELD AS ASSESSEE IN DEFAULT FOR NON DEDUCTION OF TDS. IN THIS REGARD IN THE STATEMENT OF FACTS TO THE LD. CIT(A) VARIOUS SUBMISSIONS HAVE BEEN MADE. HOWEVER, WE NOTE THAT THE LD. CIT(A) HAS DECIDED TH E APPEAL EXPARTE AND HAS ONLY ALLOWED ASSESSEES CASE BY CONSIDERING THE DECISION OF SPECIAL BENCH IN THE CASE OF ITA.NO.1205/KOL/2012 M/S.JAIN E XPRESS PVT..LTD., A.YR.2008-09 3 MERILYN SHIPPING AND TRANSPORT (SURPA). AS WE HAVE ALREADY SET ASIDE THE ORDER OF LD. CIT(A) ON THE ISSUE OF FOLLOWING THE PRECEDENCE OF MERILYN SHIPPING & TRANSPORT WE ARE INCLINED TO REMIT THE OTHER ASPECTS OF THE ASSE SSEES PLEAS IN THIS CASE TO THE FILE OF AO. AO SHALL CONSIDER THE OTHER ASPECTS OF ASSESSEE S CASE THAT IS NOT LIABLE TO DEDUCT TDS ON PAYMENT OF THE IMPUGNED AMOUNTS. NEEDLESS TO ADD, THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. .7. IN THE RESULT THE APPEAL FILED BY THE REVENUE S TANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11.08.2014. SD/- SD/- [ MAHAVIR SINGH ] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 11.08.2014. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1. M/S.JAIN EXPRESS PVT. LTD., 4,RAJA WOODMUNT STREET, 2 ND FLOOR, KOLKATA-700001. 2 I.T.O., WARD-6(2), KOLKATA 3 . CIT(A)-VI, KOLKATA 4. CIT - KOLKATA. 5. CIT-DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES