Sunil Kumar Agarwal, Durgapur V. ITO, WD-1(3), Durgapur, Durgapur

ITA 1453/KOL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99725 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 26-06-2014
• Court: TRIBUNAL
• Department Lawyers: MD GHYAS UDDIN JCIT LD
• Assessee Lawyers: VARSHA JALAN LD
• Section: 194C

Judgement Text

ITA NO . 1569 /KOL/2014 SMC - JSR M ESS MACLEOD FUELS P.LTD 1 IN THE INCOME TAX APPELLATE TRIBUNAL, SMC BENCH: KOLKATA BEFORE HON BLE SRI J SUDHAKAR REDDY , A M I.T.A NO . 1 453 /KOL/201 4 A.Y 20 0 9 - 10 SUNIL KUMAR AGARWAL V S. I.T.O , WARD - 1 ( 3 ), KOLKATA P AN: A KFPA 7190Q ( APPELLANT ) ( RESPONDENT ) FOR THE APPELLANT/ASSESSEE: MISS VARSHA JALAN, ADVOCATE, LD.AR FOR THE RESPONDENT/DEPARTMENT : MD. GHYAS UDDIN , JCIT / LD. SR. DR DATE OF HEARING: 21 - 08 - 2015 DATE OF PRONOUNCEMENT : 2 7 - 08 - 201 5 ORDER TH IS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. C IT(A PPEALS ) , DURGAPUR IN A PPEAL N O. 182 / CIT(A) /DGP/2011 - 12 DATED 03 - 03 - 2014 FOR THE ASSESSMENT YEAR 20 0 9 - 10 . 2. TH E ONLY ISSUE RAISED BY THE ASSESSEE IS AGAINST THE LD.CIT(A) ORDER CONFIRMING THE DISALLOWANCE OF RS.6,12, 482/ - MADE ON ACCOUNT OF TRANSPORTATION CHARGES BY INVOKING THE PROVISIONS OF SECTION 194C R.W.S 40(A)(IA) R.W.S 194C OF THE I.T ACT 1961. 3. BRIEFL Y STATED THE FACTS OF THE CASE ARE THAT DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS MADE PAYMENT OF RS.6,12,482/ - TO M/S. AMBEY MINING (P) LTD WITHOUT DEDUCTING TDS. THEREFORE, THE AO HAS DISALLOWED / ADDED THE SAME TO THE TOTAL INCOME OF THE AS SESSEE U/S. 40(A)(IA) OF THE ACT . AGGRIEVED, ASSESSEE HAS PREFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO HAS UPHELD THE DECISION OF THE AO . 4. AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE ME BY TAKING THE FOLLOWING GROUNDS OF APPEAL: - 1. FOR THAT ON THE FACTS A ND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE DISALLOWANCE OF R S.6,12,482/ - MADE BY THE AO ON ACCOUNT OF TRANSPORTATION CHARGES BY WRONGLY INVOKING THE PROVISIONS OF SECTION 194C R.W.S 40(A)(IA) OF THE INCOME TAX A CT, 1961. 2. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE CONSIDERED THAT PROVISION OF SEC. 194C IS NOT APPLICABLE IN THE INSTANT CASE SINCE IN THE PRECEDING YEAR THE ASSESSEE WAS NOT LIABLE TO GET HIS ACCOUNT S AUDITED AS PER THE PROVISION OF SEC. 44AB OF THE ACT. 3. WITHOUT PREJUDICE TO THE GROUND NO.1 AND 2, THE LD. CIT(A) OUGHT TO HAVE CONSIDERED THAT OUT OF THE TOTAL ADDITION OF R S.6,12,482/ - , ITA NO . 1569 /KOL/2014 SMC - JSR M ESS MACLEOD FUELS P.LTD 2 PROVISION OF SEC. 40(A)(IA) IS APPLICABLE ON TRANSPORTATION CHAR GES ONLY TO THE EXTENT OF THAT AMOUNT THAT REMAINS OUTSTANDING AT THE END OF THE RELEVANT FINANCIAL YEAR. 5. I HAVE HEARD THE RIVAL PARTIES AND PERUS ED THE MATERIAL AVAILABLE ON RECORD . MISS. VARSHA JALAN, THE LD. AR OF THE ASSESSEE HAS MENTIONED THAT THE PROVISIONS OF SECTION 194C OF THE ACT IS NOT APPLICABLE IN THE INSTANT CASE , A S THE ASSESSEE WAS NOT LIABLE TO GET HIS ACCOUNTS AUDITED AS PER PROVISIONS OF SECTION 44AB OF THE ACT IN THE IMMEDIATE PRECEDING ASSESSMENT YEAR. AS PER SECTION 194C , AN I NDIVIDUAL IS LIABLE TO DEDUCT TAX AT SOURCE (TDS) , WHOSE SALES, GROSS RECEIPTS OR TURNOVER FROM THE BUSINESS OR PROFESSION CARRIED ON BY HIM/HER EXCEEDS MONETARY LIMITS SPECIFIED IN CLAUSE (A) OR CLAUSE (B) OF SECTION 44AB DURING THE IMMEDIATELY PRECEDIN G FY IN WHICH SUCH SUM CREDITED OR PAID TO THE ACCOUNT O F THE SUB - CONTRACTOR. IN THIS CASE THE TURNOVER OF THE ASSESSEE IN THE YEAR PRIOR TO THE RELEVANT PREVIOUS YEAR IS LESS THAN THE LIMIT AS SPECIFIED U/S. 44AB OF THE ACT. THEREFORE, THE ASSESSEE IS NOT LIABLE TO DEDUCT TAX AT SOURCE U/S. 194C .ON THE CONTRARY, THE LD.DR HAS RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. AFTER HEARING RIVAL CONTENTIONS, I AM OF THE CONSIDERED VIEW THAT PROVISIONS OF SECTION 194C D ID NOT APPLY IN THE INSTANT CASE FOR THE REASON CITED BY THE LD. COUNSEL FOR THE ASSESSEE. HENCE, I ALLOW THE APPEAL OF THE ASSESSEE AND DELETE THE ADDITION IN QUESTION. 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 27 - 08 - 2015 SD/ - DATED : 27 - 08 - 2015 [ J SUDHAKAR REDDY, ACCOUNTANT MEMBER ] *PP /SR.P.S. COPY OF THE ORDER FORWARDED TO: 1. APPELLANT - SUNIL KR. AGARWAL SHREE SH YAM & CO F - 9, ZOANL CENTRE, DURGAPUR - 713211. 2 RESPONDENT : I T O W - 1(3), DURGAPUR, WB . 3 . THE CIT, 4 . THE CIT(A), KOLKATA 5 . DR, KOLKATA BENCHES, KOLKATA TRUE COPY, / BY ORDER A SSTT. REGIS TRAR