Shri Sandeep Saria, Kolkata V. ACIT, Circle - 36, Kolkata , Kolkata

ITA 1211/KOL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7227 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 20-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Retrospective amendment
• Section: 143(3); 40(a)(ia); 194C

Judgement Text

ITA NO. 1211/KOL/2019 AS SESSMENT YEAR: 2011-2012 SHRI SANDEEP SARIA 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT I.T.A. NO. 1211/KOL/2019 ASSESSMENT YEAR: 2011-2012 SHRI SANDEEP SARIA,................................ ....................................APPELLANT SUNFLOWER APARTMENTS, 74, TOPSIA ROAD, TOWER-1, FLAT NO. 12B, KOLKATA-700046 [PAN: ALEPS2101B] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. ...................RESPONDENT CIRCLE-36, KOLKATA, AAYAKAR BHAVAN, 110, SHANTI PALLY, NEAR RUBY HOSPITAL, E.M. BYE PAS S, KOLKATA-700107 APPEARANCES BY: SHRI SUNIL SURANA, FCA, FOR THE APPELLANT SHRI JAYANTA KHANRA, JCIT, SR. D.R , FOR THE RESPONDEN T DATE OF CONCLUDING THE HEARING : OCTOBER 24, 2019 DATE OF PRONOUNCING THE ORDER : OCTOBER 24, 2019 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-10, KOLKATA DA TED 29.04.2019 AND THE SOLITARY ISSUE INVOLVED THEREIN RELATES TO THE DISALLOWANCE OF RS.3,31,118/- MADE BY THE ASSESSING OFFICER AND CON FIRMED BY THE LD. CIT(APPEALS) UNDER SECTION 40(A)(IA) OF THE ACT. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND TRADING OF ENGINE ERING GOODS, SPARE- PARTS AS WELL AS DOING JOB WORKS. THE RETURN OF INC OME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY HIM DECLARING TOTAL INCO ME OF RS.31,54,173/-. IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VI DE AN ORDER DATED 24.03.2014, DISALLOWANCE, INTER ALIA, OF RS.3,31,11 8/- WAS MADE BY THE ASSESSING OFFICER UNDER SECTION 40(A)(IA) OF THE AC T ON ACCOUNT OF ITA NO. 1211/KOL/2019 AS SESSMENT YEAR: 2011-2012 SHRI SANDEEP SARIA 2 CARRIAGE INWARD AND CARRIAGE OUTWARD CHARGES AS THE SAID CHARGES WERE PAID BY THE ASSESSEE TO ONE SHRI PAPPU YADAV WITHOU T DEDUCTING TAX AT SOURCE AS REQUIRED UNDER SECTION 194C OF THE ACT. O N APPEAL, THE LD. CIT(APPEALS) CONFIRMED THE SAID DISALLOWANCE. 3. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL ON THE FO LLOWING GROUNDS:- (1) FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING TH E ACTION OF THE AO IN MAKING DISALLOWANCE OF CARRIAGE INWARD AND CARRIAGE OUTWARD EXPENSES AMOUNTING TO RS.3,31,118/- U/S 40(A)(IA) WHEN THERE WAS NO CONTRACT BETWEEN THE PARTIES AND THEREFORE, THERE WAS NO REQUIREMENT TO DEDUCT TAX AT SOURCE. (2) FOR THAT IN THE ALTERNATIVE, THE CIT(A) ERRED I N CONFIRMING THE DISALLOWANCE UNDER SECTION 40(A)(IA) WHICH SHOULD HAVE BEEN RESTRICTED TO 30% IN VIEW OF THE RETROSPECTIVE AMENDMENT IN SECTION 40(A)(IA). 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS NOT PRESSED GROUND NO. 1 RAISED BY THE ASSESSEE IN THIS APPEAL. THE SAME IS ACCORDINGLY DI SMISSED AS NOT PRESSED. 5. AS REGARDS GROUND NO. 2, THE LD. REPRESENTATIVES OF BOTH THE SIDES HAVE AGREED THAT THE ISSUE RAISED IN THIS APPEAL IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE, INTER ALIA, BY THE DECISION OF THE DIVISION BENCH OF THIS TRIBUNAL RENDERED IN THE CASE OF DIPAK PARUI VS.- JCIT VIDE ORDER DATED 27.07.2018 PASSED IN ITA NO. 767/KOL/2016, WH EREIN A SIMILAR ISSUE WAS DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE FOR THE FOLLOWING REASONS GIVEN IN PARAGRAPH NO. 5 OF ITS O RDER:- 5. LATTER ISSUE BEFORE US IS THAT OF CORRECTNESS O F SECTION 40(A)(IA) DISALLOWANCE OF RS.1,79,800/- OUT OF ASSESSEES TOTAL CLAIM OF RS.3,05,364/-. HIS ONLY A RGUMENT BEFORE US IS THAT SECTION 40(A)(IA) AS AMENDED BY F INANCE ACT, 2014 W.E.F. 01.04.2015 PRESCRIBING SUCH DISALL OWANCE TO BE RESTRICTED TO 30% ONLY THAN THE ENTIRE AMOUNT OF RS.1,79,800/-, APPLIES WITH RETROSPECTIVE EFFECT. L EARNED ITA NO. 1211/KOL/2019 AS SESSMENT YEAR: 2011-2012 SHRI SANDEEP SARIA 3 DEPARTMENTAL REPRESENTATIVE VEHEMENTLY OPPOSES THIS LEGAL PLEA. HE PLEADS THAT THE SAID PROVISO DOES NO T CARRY ANY RETROSPECTIVE EFFECT. WE FIND NO FORCE IN REVEN UES INSTANT ARGUMENTS AS A COORDINATE BENCH OF THIS TRI BUNAL IN SHRI RAJENDRA YADAV IN ITA NO. 895/JP/2012 DECIC DED ON 29.01.2016 ALREADY CONCLUDES THE ABOVE AMENDMENT W.E.F. 01.04.2015 TO BE RETROSPECTIVE EFFECT BEING CURATIVE IN NATURE. WE, THEREFORE, DIRECT THE ASSESSING OFFI CER TO RESTRICT THE IMPUGNED DISALLOWANCE TO 30% ONLY TO B E FOLLOWED BY NECESSARY COMPUTATION AS PER LAW. THIS LATTER SUBSTANTIVE GROUND IS TREATED AS PARTLY ACCEPTED IN ABOVE TERMS. RESPECTFULLY FOLLOWING THE DECISION OF THE DIVISION BENCH OF THIS TRIBUNAL IN THE CASE OF DIPAK PARUI (SUPRA), I DIRECT THE AS SESSING OFFICER TO RESTRICT THE DISALLOWANCE MADE UNDER SECTION 40(A)( IA) TO 30%. GROUND NO. 2 OF THE ASSESSEES APPEAL IS ACCORDINGLY ALLOW ED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON OCTOBER 24, 2 019. SD/- (P.M. JAGTAP) VICE-PRESIDENT KOLKATA, THE 24 TH DAY OF OCTOBER, 2019 COPIES TO : (1) SHRI SANDEEP SARIA, SUNFLOWER APARTMENTS, 74, TOPSIA ROAD, TOWER-1, FLAT NO. 12B, KOLKATA-700046 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-36, KOLKATA, AAYAKAR BHAVAN, 110, SHANTI PALLY, NEAR RUBY HOSPITAL, E.M. BYE PAS S, KOLKATA-700107 (3) COMMISSIONER OF INCOME TAX (APPEALS)-10, KOLK ATA, (4) COMMISSIONER OF INCOME TAX, KOLKATA- , KOLKATA; (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.