ITO, Ward - 2(1), Midnapore, Paschim Medinipur V. Mahesh Kumar Agarwal, Paschim Medinipur

ITA 130/KOL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48252 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2011
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 20-01-2011
• Court: TRIBUNAL
• Department Lawyers: S K ROY
• Assessee Lawyers: GAUTAM GHOSH
• Keywords: TDS; Set aside
• Section: 194C

Judgement Text

, , , , , , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [ . . . . . .. . , , ! ! ! ! , ] [BEFORE HONBLE SHRI S.V. MEHROTRA, AM & HONBLE SHRI MAHAVIR SINGH, JM !' !' !' !' / I.T.A. NO. 130/KOL/2011 #$ %& #$ %& #$ %& #$ %&/ // / ASSESSMENT YEAR : 2007-08 INCOME TAX OFFICER/WARD-2(1) -VS.- MAHESH KUMAR AGARWAL MIDNAPORE. MIDNAPORE [PAN : ACKPA 0175 G] [ () /APPELLANT] [ *+()/ RESPONDENT] !' !' !' !' / I.T.A. NO. 2301/KOL/2010 #$ %& #$ %& #$ %& #$ %&/ // / ASSESSMENT YEAR : 2007-08 MAHESH KUMAR AGARWAL -VS.- ADDL. COMMISSIONER OF INCOME TAX MIDNAPORE [PAN : ACKPA 0175 G] RANGE-2, MIDNAPORE. [ () /APPELLANT] [ *+()/ RESPONDENT] () / FOR THE APPELLANT : , /SHRI S. K. ROY *+() / FOR THE RESPONDENT : , / SHRI GAUTAM GHOSH - /O R D E R [ . . . . . .. . , ] PER S.V. MEHROTRA, AM THESE TWO CROSS APPEALS HAVE BEEN FILED BY THE DEP ARTMENT AND THE ASSESSEE AGAINST SEPARATE ORDERS OF LD. CIT(A)-XXXVI, KOLKATA DATED 13.01.2010 FOR ASSESSMENT YEAR 2007-08. THESE TWO APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. BRIEF FACTS OF THE CASE ARE THAT IN THE RELEVANT ASSESSMENT YEAR, THE ASSESSEE CARRIED ON BUSINESS AS WHOLE SALE DEALER OF PULSES, M. SEEDS E TC. THE ASSESSING OFFICER OBSERVED THAT ASSESSEE DID NOT FILE DETAILS WITH RESPECT TO THE P AYMENTS MADE TO THE TRANSPORT CONTRACTORS ON BEHALF OF THE PERSONS WHOSE MATERIALS WERE PURCHASE D. HE OBSERVED THAT SINCE THE PAYMENTS WERE MADE TO THE TRANSPORT CONTRACTORS BY THE ASSESSEE, HE WAS REQUIRED TO DEDUCT TAX U/S. 194C OF THE [ITA NO. 130/KOL/2011 & NO.2301/KOL/2011] 2 ACT. SINCE THE ASSESSEE HAD NOT DEDUCTED TDS, TAKIN G NOTE OF THE FACT THAT ASSESSEES BUSINESS WAS SIMILAR TO HIS BROTHERS BUSINESS, HE MADE DISALLOW ANCE OF RS.27,13,034/-. LD. CIT(A) RESTRICTED THE DISALLOWANCE TO RS.2,56,356/-. 3. BEING AGGRIEVED WITH THE ORDER OF LD. CIT(A), BO TH ASSESSEE AND THE DEPARTMENT ARE IN APPEAL BEFORE US. 4. AT THE OUTSET, LD. COUNSEL APPEARING ON BEHALF O F THE ASSESSEE POINTED OUT THAT ASSESSEE BEING INDIVIDUAL WAS NOT LIABLE TO DEDUCT TDS ON FR EIGHT U/S. 194C OF THE INCOME TAX ACT FOR ASSESSMENT YEAR 2007-08 BECAUSE THE RELEVANT PROVIS ION U/S. 194C(1) WAS AMENDED WITH EFFECT 01.06.2007. HE ALSO RELIED ON THE DECISION OF I.T.A .T., KOLKATA BENCHES IN THE CASE OF DCIT VS. SHRI HEMRAJ AGARWAL (ASSESSEES BROTHER) IN ITA NO. 324/KOL/2011 FOR ASSESSMENT YEAR 2007-08 VIDE ORDER DATED 30.05.2011, WHEREIN THE TRIBUNAL H AS HELD AS UNDER :- 5 HAVING HEARD THE RIVAL SUBMISSIONS AND PERU SED THE MATERIALS AVAILABLE ON RECORD, KEEPING IN VIEW OF THE FACT THAT THE ASSESS EE IS AN INDIVIDUAL AND IN SO FAR AS THE PROVISIONS OF SECTION 194C(1) IS CONCERNED T HE AMENDMENT MADE BY THE FINANCE ACT, 2007 W.E.F. 01.06.2007 STATES THAT SEC TION 194C(1) IS APPLICABLE TO THE INDIVIDUAL ASSESSEE ONLY FROM 01.06.2007. SINCE THE ASSESSMENT YEAR INVOLVED IN THIS APPEAL IS 2007-08 WE FIND NO INFIRMITY IN T HE ORDERS OF THE LD. CIT(A) WHICH IS IN CONFORMITY WITH THE PROVISIONS OF IT AC T. THEREFORE, WE CONFIRM THE SAME AND DISMISS THE REVENUES APPEAL. 5. HAVING HEARD BOTH THE PARTIES, WE SET ASIDE THE ORDER OF LD. CIT(A) BECAUSE THE PROVISIONS OF SECTION 194C(1) WERE MADE APPLICABLE TO INDIVIDU AL ASSESSEES BY THE FINANCE ACT, 2007 AMENDMENT WITH EFFECT FROM 01.06.2007. THE PRESENT ASSESSMENT YEAR BEING 2007-08, THE PROVISIONS OF SECTION 194C(1) WERE NOT APPLICABLE. 6. IN THE RESULT, REVENUES APPEAL IS DISMISSED AND ASSESSEES APPEAL IS ALLOWED. - - - - . . . . / // / .# .# .# .# 0 0 0 0 1 11 1 2 2 2 2 ORDER PRONOUNCED IN THE OPEN COURT ON 06.0 7.2011. SD/- SD/- [ ! , ] [ .. , ] [ MAHAVIR SINGH ] [ S.V. MEHROTRA ] JUDICIAL MEMBER ACCOUNTANT MEMBER 2 / DATED : 6TH JULY, 2011. [ITA NO. 130/KOL/2011 & NO.2301/KOL/2011] 3 - 3 * 4 54%6 - COPY OF THE ORDER FORWARDED TO: 1. /APPLICANT- INCOME TAX OFFICER, WARD-2(1), SAHOO BHAWAN, KSHUDIRAM NAGAR, MIDNAPORE ( W). 2 *+() / RESPONDENT : MAHESH KUMAR AGARWAL, PROP. M/S. RAJ GERIA TRADING, 171 CHANDNI CHOWK , GOLEBAZAR, KHARAGPUR, MIDANPORE (W). 3. -# / CIT 4. -# ( )/ CIT(A) 5. 0 * # / DR, KOLKATA BENCHES, KOLKATA [ +4 * / TRUE COPY] -#. / BY ORDER 7 / !8 /DEPUTY/ASSTT. REGISTRAR . [KKC 9: #;8 < /SR.PS]