Sk. Mahasin Ali, Hooghly V. ACIT, Circle - 2, Hooghly, Hooghly

ITA 1297/KOL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62111 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2012
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 05-10-2011
• Court: TRIBUNAL
• Department Lawyers: B HAZRA
• Assessee Lawyers: SOUMITRA CHOW DHURY
• Section: 234B; 194C

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [ () . .. . . .. . , , , , , ! ''# $% ''# $% ''# $% ''# $% ] ]] ] [BEFORE HONBLE SRI C. D. RAO, AM & HONBLE SRI GEORGE MATHAN, JM] !' !' !' !' /ITA NO.1297/KOL/2011 (%) *+/ ASSESSMENT YEAR : 2006-07 ($- / APPELLANT ) - % - ( /0$- /RESPONDENT) SK.MAHASIN ALI A.C.I.T., CIRCLE-2, HOOGHLY -VERSUS- HOOGHLY. (PAN:AFRPA 1271 R) $- 1 2 / FOR THE APPELLANT: SHRI SOUMITRA CHOWDHURY /0$- 1 2 / FOR THE RESPONDENT: SHRI B.HAZRA 3%4 1 /DATE OF HEARING : 21.05.2012. 5* 1 /DATE OF PRONOUNCEMENT : 23.05.2012. 6 / ORDER ( (( ( . .. . . .. . ) )) ), , , , PER SHRI C.D.RAO, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST ORD ER DATED 02.08.2011 OF CIT(A) XXXVI, KOLKATA PERTAINING TO A.YR. 2006- 07. 2. AT THE TIME OF HEARING THE LD. COUNSEL APPEARING ON BEHALF OF ASSESSEE HAS NOT PRESSED GROUND NOS.2 AND 3. THEREFORE, THE SAME ARE DISMISSED AS BEING NOT PRESSED. 3. GROUND NO.1 RAISED BY ASSESSEE BEING GENERAL IN NATURE DOES NOT REQUIRE ANY ADJUDICATION. HENCE THE SAME IS DISMISSED. 4. IN RESPECT OF GROUND NOS. 4 TO 9 RAISED BY ASSES SEE THE LD. COUNSEL FOR ASSESSEE SUBMITTED THAT THESE RELATE TO DISALLOWANCE MADE U/ S 40(A)(IA) OF THE I.T.ACT. 5. GROUND NO.10 IS RELATING TO LEVYING OF PENALTY U /S 234B OF THE I.T.ACT WHICH IS CONSEQUENTIAL IN NATURE. GROUND NO.11 BEING GENERAL IN NATURE DOES NOT REQUIRE ANY ADJUDICATION. HENCE THE SAME IS DIMISSED. 2 6. AFTER ANALYZING ALL THE ABOVE GROUNDS THE LD. C OUNSEL APPEARING ON BEHALF OF ASSESSEE FIRSTLY SUBMITTED THAT THE ASSESEE IS AN I NDIVIDUAL. UNDER THE PROVISION OF SECTION 194C OF THE IT ACT HIS TRIBUNAL HAS TAKEN A CONSISTENT VIEW THAT THE PROVISION OF SECTION 194C OF THE IT ACT IS NOT APPLICABLE IN THE CASE OF INDIVIDUALS UPTO A.YR. 2006-07. ON THE OTHER HAND, BY REFERRING TO THE BAL ANCE SHEET WHEREIN THE COMPANYS OUTSTANDING LIABILITY ARE ONLY REPRESENTING RS.2,00 0/-ON ACCOUNT OF AUDIT FEES, HE FURTHER RELIED ON THE DECISION OF THE SPECIAL BENCH IN THE CASE OF MERILYN SHIPPING & TRANSPORTS, VISHAKAPATNAM VS ACIT, VISHAKAPATNAM VI DE IT NO.477/VIZ/2008 DATED 29.03.2012. THEREFORE HE REQUESTED TO ALLOW THE APP EAL AND DELETE THE ADDITION. 7. ON THE OTHER HAND, THE LD. DR APPEARING ON BEHAL F OF THE REVENUE RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 8. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF MATERIALS AVAILABLE ON RECORD, SINCE THERE IS NO DISPUTE THAT ASSESSEE IS AN INDIVIDUAL AS PER THIS TRIBUNALS DECISION WHEREIN THE TRIBUNAL HAS BEEN T AKING A CONSISTENT VIEW THAT SECTION 194C OF THE IT ACT IS NOT APPLICABLE TO INDIVIDUAL UPTO A.YR. 2006-07. AND CONSEQUENTIAL DISALLOWANCE U./S 40(A)(IA) OF THE IT ACT IS NOT ALLOWED. THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF MERILYN SHIPPI NG & TRANSPORTS VS ACIT-RANGE- 1, VISHAKAPATNAM VIDE ITA NO.477/VIZ/2008 DATED 29. 03.2012 HAS HELD AS UNDER :- THE WORD PAYABLE USED IN SECTION 40(A)(IA) OF TH E INCOME TAX ACT, 1961 HAS TO BE GIVEN ITS NATURAL MEANING AND, GOING BY STRICT INTE RPRETATION, I AM OF THE FIRM VIEW THAT SECTION 40(A)(IA) OF THE ACT IS APPLICABLE ONLY TO EXPENDITURE WHICH IS PAYABLE AS ON 31 ST MARCH OF EVERY YEAR AND CANNOT BE INVOKED TO DISALL OW THE AMOUNT WHICH HAVE ALREADY BEEN PAID DURING THE PREVIOUS YEAR, WITHOUT DEDUCTI NG TAX AT SOURCE. 8.1. RESPECTFULLY FOLLOWING THE ABOVE TRIBUNALS DE CISION WE FIND NO JUSTIFICATION ON THE PART OF REVENUE TO DISALLOW MADE U/S 40(A)(IA) OF THE I.T.ACT. WE DIRECT AO TO DELETE THE ADDITION AMOUNTING TO RS.62,75,000/- 9. GROUND NO.10 RAISED BY ASSESSEE IS RELATING TO C HARGING OF INTEREST U/S 234B AND 234C OF THE IT ACT WHICH IS MANDATORY AS WELL A S CONSEQUENTIAL IN NATURE. THEREFORE WE DIRECT AO TO RE-COMPUTE THE SAME AFTER GIVING EFFECT TO THIS ORDER. 3 10. IN THE RESULT THE APPEAL OF ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE COURT ON 23.05.2012. SD/- SD/- [ .''# $% , ] [ .., ] [ GEORGE MATHAN ] [ C. D. RAO ] JUDICIAL MEMBER ACCOUNTANT MEMBER ( (( ( ) )) ) DATE:23.05.2012. R.G.(.P.S.) 6 1 /((7 87*9- COPY OF THE ORDER FORWARDED TO: 1. SK.MAHASIN ALI, VILL. & P.O.-DUADANDA, P.S.KHANAKUL , DIST.HOOGHLY- 712613. 2 THE A.C.I.T., CIRCLE-2, HOOGHLY. 3. THE CIT- 4. THE CIT(A)-XXXVI, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA 07 /(/ TRUE COPY, 6%3/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES