ITO, WD - 41(4). Nadia, Nadia V. Md. Abutaleb Surahabali Khan, Nadia

ITA 1384/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9374 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2017
• Appeal Filed By: Department
• Bench Allotted: Not Allotted
• Next Hearing Date: 14-02-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 24-06-2016
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Corroborative evidences; Tax effect
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI S.S.VISWANETHRA RAVI, JM & DR. A.L.SAI NI, AM ./ ITA NO.1384/KOL/2016 ( / ASSESSMENT YEAR:2011-12) ITO, WARD-41(4), NADIA, NEDIAR PARA, ANANTA HARI MITRA ROAD, PO-KRISHNANAGAR, DIST- NADIA, PIN-741 101(WB) VS. MD. ABUTALEB SURAHABALI KHAN, TEHATTA THAKUR PARA P.O.TEHATTA-741 160 DISTRICT-NADIA (W.B) ./ ./PAN/GIR NO.: ANRPK 7592 B ( /APPELLANT ) .. ( / RESPONDENT ) REVENUE BY : SRI NICHOLAS MURMU, JCIT ASSESSEE BY : NONE / DATE OF HEARING : 14/02/2017 /DATE OF PRONOUNCEMENT 22/02/2017 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE REVENUE PERTAININ G TO ASSESSMENT YEAR 2011-2012, IS DIRECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-12, KOLKATA IN APPEAL NO.461/CIT(A)-12/KOL/W D-41(4)/NADIA/2014- 15, DATED 08.03.2016, WHICH IN TURN ARISES OUT OF A N ORDER PASSED BY THE ASSESSING OFFICER (AO) UNDER SECTION 143(3)/147 OF THE INCOME TAX ACT 1961, (HEREINAFTER REFERRED TO AS THE ACT), DATED 19.03.2014. 2. BRIEF FACTS OF THE CASE QUA THE ASSESSEE ARE THA T THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE RELEVANT A.Y.2011-2012 ON 28.03.2012 DECLARING TOTAL INCOME OF RS.7,80,555/-. THE CASE O F THE ASSESSEE WAS SELECTED FOR SCRUTINY AND THE AO FRAMED THE ASSESSM ENT U/S.143(3) MAKING VARIOUS ADDITIONS. 3. AGGRIEVED FROM THE ORDER OF AO, THE ASSESSEE FIL ED AN APPEAL BEFORE THE LD. CIT(A), WHO HAS ALLOWED THE APPEAL F ILED BY THE ASSESSEE OBSERVING THE FOLLOWINGS :- ITA NO.1384/KOL/2016 MD. ABUTALEB SURAHABALI KHAN 2 I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLANT AND THE FACTS OF THE CASE. THE AO HAS DISALLOWED PAYMENT OF RS. 26,3 1,252/- FOR NON DEDUCTION OF TDS U/S.40(A)(IA) OF THE IT.ACT TO WARDS LABOUR PAYMENT. I FIND FORCE IN THE CONTENTIONS OF THE APP ELLANT. THE AO IN HIS ORDER HAS STATED THAT 'AS PER BANK STATEMENT BA NK OF INDIA THE ASSESSEE HAS MADE PAYMENTS OF RS. 26,31,252/- TO DI FFERENT PERSONS WITHOUT DEDUCTING TDS WHICH VIOLATED SECTIO N 40(A)(IA) READ WITH-SECTION 194C OF THE INCOME TAX ACT, 1961' . THE APPELLANT HAS SUBMITTED THAT 'LABOUR PAYMENT WAS MADE TO DIFF ERENT LABOURERS NUMBERING MORE THAN 50 PERSONS PER MONTH BY WITHDRAWAL OF CASH FROM BANK WHICH WAS BE EVIDENT F ROM THE ENCLOSED BANK STATEMENT AS 'WELL, AS LABOUR PAYMENT SHEETS FOR F.Y. 2010-11 CORRESPONDING TO A. Y. . 2011-12) NO P AYMENT . WAS' 'MADE TO LABOUR CONTRACTOR EXCEEDING THE PERMISSIBL E LIMIT UNDER THE 1 T.ACT 1961 AND ACCORDINGLY THE TDS WAS NOT RE QUIRED TO BE DEDUCTED FOR SUCH PAYMENT U/S.40(A)(IA)'. THE AO HA S NOT SAID AS TO HOW THE SECTION 40(A)(IA) WAS VIOLATED BY THE AS SESSEE. THUS I FIND FORCE IN THE APPELLANT'S SUBMISSIONS AND THE A DDITION IS DELETED. THE AO HAS ESTIMATED THE NP AT 8% OF GROSS RECEIPTS OF RS. 2,93,79,070/- . THE AO HAS STATED THAT 'THEREFORE, FOR NON PRODUCTION OF SUPPORTING EVIDENCES. I ESTIMATED 8% OF THE TOTAL TURNOVER AS THE NET PROFIT OF THE ASSESSEE'. I FIN D THAT THE ASSESSING OFFICER HAS MADE A GENERAL REMARK WHICH ESTIMATING THE NET PROFIT THAT DUE TO NON PRODUCTION OF SUPPORTING EVIDENCES, BUT HE DID NOT POINT OUT ANY SPECIFIC BILL WHICH WAS HANDMADE AND IS NOT OPEN FOR VERIFICATION. EVEN HE HAS NOT REJECTED THE BOOKS OF ACCOUNT, BUT HE ESTIMATED THE PROFIT AT 8% OF THE TOTAL TURNOVER OF RS. 2,93,79,070/- THE AO HAS NOT FOUND ANY DISCREPANCY IN THE ACCOUNT S MAINTAINED BY THE ASSESSEE. THE ASSESSING OFFICER HAS MADE THE ADDITION WITHOUT POINTING OUT ANY SPECIFIC DEFECT EITHER IN THE MAINTENANCE OF THE BOOKS OF ACCOUNT OR BILLS AND VOUCHERS. THEREFO RE, ESTIMATION OF THE NET PROFIT BY THE ASSESSING OFFICER CANNOT BE A PPRECIATED. I, ACCORDINGLY DELETE THE ADDITION MADE BY THE AO. 4. NOT BEING SATISFIED WITH THE ORDER OF LD. CIT(A) , THE REVENUE IS IN APPEAL BEFORE US AND HAS TAKEN THE FOLLOWING GROUND S OF APPEAL :- THE LD. COMMISSIONER OF INCOME TAX (APPEAL), 12, KO LKATA WAS NOT JUSTIFIED IN DELETING THE ADDITION OF RS. 26,31 ,252/- FOR NON DEDUCTION OF TAX AT SOURCES FOR PAYMENT TO DIFFEREN T PERSONS AND DIFFERENCE OF PROFIT OF RS.14,58,636/- BETWEEN ESTI MATED OF PROFIT OF RS.23,33,818/- @8% ON GROSS TURNOVER OF RS.2,91, 72,729/- AND PROFIT OF RS.8,75,182/- AS DISCLOSED BY THE ASS ESSEE WITHOUT GIVING OPPORTUNITY OF BEING HEARD U/S. 46A OF THE I NCOME TAX RULES, 1962 ON SUBMISSION OF ADDITIONAL GROUND OF A PPEAL TO THE LD. COMMISSIONER OF INCOME TAX,(APPEAL)-12, KOLKATA AND TAX EFFECT IS MORE THAN RS.10 LAKH THE LIMIT AS PRESCRI BED IN THE CIRCULAR NO 21/2015 DATED 10.12.2015. ITA NO.1384/KOL/2016 MD. ABUTALEB SURAHABALI KHAN 3 5. LD. DR FOR THE REVENUE HAS SUBMITTED BEFORE US T HAT THE LD. CIT(A) HAS VIOLATED THE PROVISIONS OF RULE 46A OF THE INCO ME TAX RULES, IN ACCEPTING THE ADDITIONAL EVIDENCE IN RESPECT OF TDS AND IN RESPECT OF ADDITION ON ACCOUNT OF ESTIMATE MADE BY THE AO. TH EREFORE, THESE ISSUES SHOULD BE SENT BACK TO THE FILE OF CIT(A) TO RE-ADJ UDICATE THE SAME, AFTER TAKING THE PROPER REMAND REPORT FROM THE AO AND EXP LANATIONS OF THE ASSESSEE ON THE REMAND REPORT. 6. HAVING HEARD THE LD DR FOR THE REVENUE, AND PERU SED THE MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THERE IS MERIT I N THE SUBMISSIONS OF LD. DR FOR THE REVENUE. THE LD. DR FOR THE REVENUE AS SUBMITTED BEFORE US THAT THE LD. CIT(A) DID NOT GIVE AN OPPORTUNITY TO THE AO TO EXAMINE THE ADDITIONAL EVIDENCE, THEREFORE, IT IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE AND VIOLATION OF RULE 46A OF THE I.T. RULES. THEREF ORE, WE ARE OF THE VIEW TO REMIT THE CASE BACK TO THE FILE OF LD. CIT(A) TO RE-ADJUDICATE THE ISSUE AFTER TAKING PROPER REMAND REPORT AND AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, APPEAL FILED BY THE REVENUE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22/02/ 2017. S D / - (S.S.VISWANETHRA RAVI) S D/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; ! DATED 22/02/2017 ' $%& /PRAKASH MISHRA , SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT-ITO, WARD-41(4), NADIA ITA NO.1384/KOL/2016 MD. ABUTALEB SURAHABALI KHAN 4 / BY ORDER, / ( ASSTT. REGISTRAR) % & , / ITAT, 2. / THE RESPONDENT.- MD. ABUTALEB SURAHABALI KHAN 3. 0 ( ) / THE CIT(A), KOLKATA. 4. 0 / CIT 5. 12 3 4456 , 56 , / DR, ITAT, KOLKATA 6. 3 78 / GUARD FILE. 1 4 //TRUE COPY//