M/s Cargo Hindling Corporation, Kolkata V. ITO, WD-28(2), KOLKATA, Kolkata

ITA 1365/KOL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4323 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 29-08-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 13-06-2014
• Court: TRIBUNAL
• Department Lawyers: ABHIJIT DUTTA
• Keywords: Opportunity of being heard; Period of limitation; Condonation of delay
• Section: 143(3); 194C

Judgement Text

1 ITA NO. 1365/KOL/2014 CARGO HANDLING CORPN, AY 2007-08 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA [BEFORE SHRI K. NARASIMHA CHARY, JM & DR. A. L. SA INI, AM] I.T.A NO. 1365/KOL/2014 ASSESSMENT YEAR: 2007-08 M/S. CARGO HANDLING CORPORATION VS. INCOME-TAX O FFICER, WD-28(2), KOLKATA (PAN: AACFC2085K) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 20.10.2016 DATE OF PRONOUNCEMENT: 26.10.2016 FOR THE APPELLANT: SHRI SOUMITRA CHOUDHURY, AD VOCATE FOR THE RESPONDENT: SHRI ABHIJIT DUTTA, JCIT., SR. DR ORDER PER SHRI K. NARASIMHA CHARY, JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XIV VIDE APPEAL NO. 389/ CIT(A)-XIV/2009-10 DATED 21.03.2014. ASSESSMENT WA S FRAMED BY ITO, WD-28(2), KOLKATA U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HE REINAFTER REFERRED TO AS THE ACT) FOR AY 2007-08 VIDE HIS ORDER DATED 29.12.2009. 2. FACTS RELEVANT FOR THE DISPOSAL OF THIS APPEAL ARE THAT THE ASSESSEE IS A TRANSPORT CONTRACTOR CONDUCTING ITS BUSINESS WITHIN AND OUTSI DE WEST BENGAL. FOR THE AY 2007-08 ASSESSEE FILED ITS RETURN OF INCOME ON 29.10.2007 D ECLARING A TOTAL INCOME OF RS.4,09,082/-. HOWEVER, DURING THE ASSESSMENT PROCEEDINGS THE AO D ISALLOWED TRANSPORT CHARGES U/S. 40(A)(IA) OF THE ACT TO THE TUNE OF RS.13,01,240/- FOR NOT DEDUCTING TDS U/S. 194C OF THE ACT. AGGRIEVED BY THIS ADDITION, THE ASSESSEE CARR IED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) BUT WITH A DELAY OF 8 DAYS. THE EXPLANATION OFFERED BY THE ASSESSEE FOR SUCH DELAY IS THAT ONE SOUMEN GHOSH WHO HAS BEEN LOOKING AFTER THE MATTER OF THE ASSESSEE SUDDENLY FELL ILL ON AND FROM 20.01.2010 AND COULD NOT ATTEN D THE OFFICE TILL 06.02.2010 AS SUCH, SUCH DELAY OF 8 DAYS OCCURRED. AS COULD BE SEEN FROM TH E ORDER OF THE LD. CIT(A) A MEDICAL CERTIFICATE WAS ALSO ENCLOSED. HOWEVER, THE LD. CI T(A) REFUSED TO CONDONE THE DELAY OF 8 DAYS WHILE REJECTING THE CONDONATION PETITION OF TH E ASSESSEE DISMISSED THE APPEAL IN LIMINI. 3. AGGRIEVED BY SUCH AN ORDER OF REFUSAL IN RESPECT OF CONDONATION OF DELAY THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GR OUNDS: 2 ITA NO. 1365/KOL/2014 CARGO HANDLING CORPN, AY 2007-08 1. FOR THAT ON THE FACTS OF THE CASE, THE ORDER P ASSED BY THE LD. C.I.T.(A) IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 2. FOR THAT ON THE FACTS OF THE CASE, THE ORDER PAS SED BY THE LD. C.I.T.(A) WITHOUT GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE W HICH IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 3. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T .(A) WAS WRONG IN NOT CONSIDERING THE CONDONATION OF DELAY, THEREFORE, THE ORDER PASSED B Y THE LD. C.LT.(A) IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 4. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.LT. (A) WAS WRONG IN NOT CONSIDERING THE MERIT OF THE CASE, THEREFORE, THE ORDER PASSED BY THE LD. C. LT.(A) IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 5. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.LT. (A) WAS WRONG IN DITTOING THE ORDER OF THE A.O. AND CONFIRMING THE ADDITION U/S. 40A(IA) OF TH E INCOME TAX ACT AMOUNTING TO RS.13,01,240/- WHICH IS COMPLETELY ARBITRARY, UNJUS TIFIED AND ILLEGAL. 6. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T .(A) WAS WRONG IN CONFIRMING THE ADDITION U/S. 40A(IA) OF THE I.T. ACT AMOUNTING TO RS. 13,01,240/ - AS THE ASSESSEE WAS NOT LIABLE TO DEDUCT TDS ON PAYMENT MADE FOR TRANSPORT CHARGES, THEREFOR E, THE SAID DISALLOWANCE U/S. 40A(IA) IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 7. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.LT. (A) WAS WRONG IN HOLDING THAT THE ASSESSEE WAS COVERED BY SECTION 194C OF THE INCOME TAX ACT, THEREFORE, THE DISALLOWANCE MADE U/S. 40A(IA) AMOUNTING TO RS. 13,01,240/- BY THE LD. CIT (A) IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 8. FOR THAT THE INTEREST U/S. 2348 & 234D AMOUNTING TO RS.118,397/- & RS.3,992/- CHARGED MECHANICALLY IS WRONG & ILLEGAL.. 4. AT THE TIME OF HEARING WE FIND THAT THIS APPEAL HAS BEEN FILED WITH AN APPEAL FEE OF RS.500/- ONLY AND THE REGISTRY NOTED THAT THERE IS DEFICIT PAYMENT OF APPEAL FEE TO THE TUNE OF RS.9,500/-. ON THIS ASPECT LD. AR SUBMITTED THA T WHEN THE ONLY ISSUE IS IN RESPECT OF CONDONATION OF DELAY THE APPEAL FEE PAYABLE IS ONLY RS.500/- AND IN SUPPORT OF SUCH A CONTENTION HE PLACED RELIANCE ON A DECISION RENDERE D BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF RAJKAMAL POLYMERS (P) LTD. VS. CIT 2 91 ITR 314 (KARN.). THE LD. AR ALSO FILED A COPY OF ORDER DATED 25.08.2015 OF A COORDIN ATE BENCH OF THIS TRIBUNAL IN ITA NO. 1363 & 1364/KOL/2014 IN THE CASE OF M/S. M.E. ENTER PRISES VS. ITO AND M/S. HOOGHLY TRADERS VS. ITO RESPECTIVELY, WHICH ARE SAID TO BE THE CONCERNS OF THE ASSESSEE. IN THIS DECISION THE COORDINATE BENCH OF THIS TRIBUNAL WHIL E FOLLOWING THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF RAJKAMAL POLYME RS (P) LTD., SUPRA HELD THAT RS.500/- IS SUFFICIENT IN RESPECT OF CONDONATION OF DELAY. 3 ITA NO. 1365/KOL/2014 CARGO HANDLING CORPN, AY 2007-08 5. NOW COMING TO THE ASPECT OF DELAY, IT IS ONLY 8 DAYS I.E. SOUGHT TO BE CONDONED. THE REASON ATTRIBUTED IS SUDDEN ILLNESS OF THE ACCOUNT ANT WHO HAS BEEN LOOKING AFTER THE AFFAIRS OF THE ASSESSEE. BY PREFERRING AN APPEAL WITH 8 DA YS DELAY THE ASSESSEE DOES NOT STAND TO ANY GAIN AND WHEN SUCH A REQUEST IS ACCOMPANIED BY A MEDICAL CERTIFICATE IT DOES NOT APPEAR TO BE REASONABLE TO REFUSE THE CONDONATION OF DELAY . WHILE RESPECTFULLY FOLLOWING THE RATIO IN COLLECTOR OF LAND ACQUISITION VS MST KATIJI & OTHER S 167 ITR 471 (SC), WE FIND THAT SINCE IN THIS CASE THE ASSESSEE WAS PREVENTED BY SU FFICIENT CAUSE FOR FILING THE APPEAL WITHIN THE PERIOD OF LIMITATION BEFORE THE LD. CIT(A), WE ALLOW THIS APPEAL BY CONDONING THE DELAY AND DIRECTING THE LD. CIT(A) TO ADMIT THE APPEAL AN D TO DISPOSE IT OFF ON MERITS AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 26.10.201 6 SD/- SD/- (DR. A. L. SAINI) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 26TH OCTOBER, 2016 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT M/S. CARGO HANDLING CORPORATION, 26, KA RL MARX SARANI, KOLKATA-700 023. 2 RESPONDENT ITO, WARD-28(2), KOLKATA. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .