M/s Dina Bandhu Kundu and Brothers, Burdwan V. I.T.O.,Ward-1(3), Burdwan

ITA 1255/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6225 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 04-02-2020
• Assessment Year: 2011-2012
• Appeal Filed On: 24-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA SR DR
• Keywords: TDS
• Section: 40A(3); 143(3); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.1255/KOL/2019 ASSESSMENT YEAR:2011-12 M/S DINA BANDHU KUNDU AND BROTHRES, SONA PATI, P.O. KALNA,BURDWAN [ PAN NO.AAABD 0081 A ] / V/S . INCOME TAX OFFICER, WARD-1(3), AAYAKAR BHABAN, COURT COMPOUND, BURDWAN, PIN-713101 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI SOUMITRA CHOUDHURY, ADVOCATE /BY RESPONDENT SHRI JAYANTA KHANRA, SR-DR /DATE OF HEARING 04-02-2020 /DATE OF PRONOUNCEMENT 12-02-2020 /O R D E R THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2011-12 , ARISES AGAINST THE COMMISSIONER OF INCOME-TAX (APPEALS)-BURDWANS ORDE R DATED 18.03.2019 PASSED IN CASE NO. CIT(A)/ASL/W-1(3)/BWN/14-15, INVOLVING PR OCEEDINGS U/S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEES FORMER SUBSTANTIVE GRIEVANCE CHAL LENGES CORRECTNESS OF BOTH THE LOWER AUTHORITIES DISALLOWING HIS FREIGHT CHARGES PAYMENTS OF 7,64,145/- FOR NOT DEDUCTING TDS. THE ASSESSING OFFICER AS WELL AS CIT (A) ARE OF THE VIEW THAT THE IMPUGNED PAYMENTS ARE CONTRACTUAL / SUB-CONTRACTUAL IN NATURE U/S 194C OF THE ACT AND THEREFORE, THE ASSESSEE OUGHT TO HAVE DEDUCTED TDS UNDER CHAPTER-XVIIB OF THE ITA NO.1255/KOL/2019 A.Y. 2011-12 M/S DINA BANDHU KUNDU & BROTHERS VS. ITO WD-1(3), BWN PAGE 2 ACT. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO D ISPUTE THE CLINCHING FACT THAT NEITHER OF THE LOWER AUTHORITIES HAS PIN-POINTED ANY ORAL O R WRITTEN AGREEMENT SUGGESTING THE ASSESSEES PAYEES TO HAVE EVER ASSUMED ANY CONTRACT UAL LIABILITY OF THIS TAXPAYER. HON'BLE JURISDICTIONAL HIGH COURT IN COMMISSIONER OF INCOME TAX KOLKATA-XVI VS. M/S STUMM INDIA IN ITA NO.127 OF 2009 DATED 16.08.2010 UPHOLDS THIS TRIBUNALS CO- ORDINATE BENCHS ORDER DELETING AN IDENTICAL DISALL OWANCE IN SIMILAR CIRCUMSTANCES. I THEREFORE DIRECT THE ASSESSING OFFICER TO DELETE TH E IMPUGNED DISALLOWANCE GOING BY THE VERY ANALOGY. THE ASSESSEE SUCCEEDS IN ITS FORM ER GRIEVANCE. NECESSARY COMPUTATION SHALL FOLLOW AS PER LAW. 3. NEXT COMES SEC. 40A(3) DISALLOWANCE OF CASH PAYM ENT MADE TO THE ABOVE STATED TRANSPORTERS AMOUNTING TO 1,69,297/-. I NOTICE AT THE OUTSET THAT BOTH THE LO WER AUTHORITIES HAVE NOT PIN-POINTED THAT THE IMPUGNED PAYMENTS EVER CROSSED MINIMUM THRESHOLD LIMIT IN EACH PAYEES CASE IN A DAY. BOTH THE LEARNED REPRESENTATIVES ARE AD IDEM THEREFORE THAT THE ASSESSING OFFICER NEEDS TO RE-C OMPUTE THE IMPUGNED PARTY- WISE PAYMENT(S) IF THE SAME AS EXCEEDED THE STATUTO RY LIMIT OR NOT. THIS GROUND IS TAKEN AS ACCEPTED FOR STATISTICAL PURPOSES. 4. LEARNED AUTHORIZED REPRESENTATIVE AT THIS STAGE SUBMITTED THAT THE ASSESSEES BOOKS OF ACCOUNT STAND SEIZED BY THE DEPARTMENT AS PER PCIT BURDWANS ORDER DATED 02.03.2011 PASSED U/S 133A(3)(IA) OF THE ACT. I THE REFORE MAKE IT CLEAR THAT THE ASSESSING OFFICERS CONSEQUENTIAL EXERCISES SHALL M AKE IT SURE THAT THE RELEVANT BOOKS OF ACCOUNT ARE DULY CONSIDERED AS PER LAW. 5. THIS ASSESSEES APPEAL IS PARTLY ALLOWED IN ABOV E TERMS. ORDER PRONOUNCED IN OPEN COURT ON 12/02/2020 SD/- (S. S. GODARA) JUD ICIAL MEMBER KOLKATA, *DKP/SR.PS - 12/02/2020 ITA NO.1255/KOL/2019 A.Y. 2011-12 M/S DINA BANDHU KUNDU & BROTHERS VS. ITO WD-1(3), BWN PAGE 3 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S DINA BANDHU KUNDU & BROTHERS SONA PA TI, P.O. KALNA, BURDWAN, PIN-713409 2. /RESPONDENT-ITO WD-1(3), AAYKAR BHABAN, COURT COMPO UND BURDWAN, PIN-7 13101 3. ' % / CONCERNED CIT 4. % - / CIT (A) 5. & ))' , ' / DR, ITAT, KOLKATA 6. + / GUARD FILE. BY ORDER/ , /TRUE COPY/ ',