Manoj Kumar Das, Guwahati V. Income Tax Officer, Ward-3(2), Guwahati

ITA 146/GTY/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8521 (ITAT-GUWAHATI)
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 08-04-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K BHARDWAJ
• Keywords: TDS
• Section: 40A(3); 143(3); 194C

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL GUWAHATI BENCH SMC GUWAHATI BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.146/GAU/2019 ASSESSMENT YEAR:2011-12 MANOJ KUMAR DAS FLAT 1A, NAKSHATRA RESIDENCY, RUPALIM PATH, BHAAGADATTAPUR, SURVEY, GUWAHATI-781028 [ PAN NO.ABWPD 1849 F ] / V/S . INCOME TAX OFFICER, WARD-3(2), AAYKAR BHAWAN, G.S. ROAD, CHRISTHAN BASTI, GUWAHATI-781005 /APPELLANT .. /RESPONDENT /BY APPELLANT NONE /BY RESPONDENT SHRI A.K. BHARDWAJ, ADDL. CIT- DR /DATE OF HEARING 11-07-2019 /DATE OF PRONOUNCEMENT -10-2019 /O R D E R THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2011-12, ARISES AGAINST THE COMMISSIONER OF INCOME-TAX (APPEALS)-2, GUWAHATIS ORDER DATED 20.12.2018 PASSED IN CASE NO.GUWA-267/2013-14, INVOLVING PROCE EDINGS U/S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. CASE CALLED TWICE. NONE APPEARED AT ASSESSEES B EHEST. 2. THE ASSESSEES FORMER SUBSTANTIVE GROUND CHALLENGES CORRECTNESS OF BOTH THE LOWER AUTHORITIES ACTION IN INVOKING SECTION 40(A) (IA) FOR DISALLOWING PAYMENTS MADE TO VARIOUS TRANSPORTERS AMOUNTING TO RS.7,69,7 00/-. THERE IS NO DISPUTE THAT THE ASSESSEE HEREIN IS TRADING IN POULTRY FEED AND ALSO A CONTRACTOR ENGAGED IN THE ITA NO.146/GAU/2019 A.Y .2011-12 MANOJ KR. DAS VS. ITO WD-3(2), GUWA P AGE 2 BUSINESS OF PLYING, HIRING OR LEASING GOODS CARRIAG ES. HE HAD ADMITTEDLY MADE IMPUGNED PAYMENTS TO VARIOUS TRANSPORTERS FORMING T HE SUBJECT MATTER OF IMPUGNED DISALLOWANCE FOR NON-DEDUCTION OF TDS THEREUPON. I NOTICE FROM A PERUSAL OF THE CASE FILE THAT THERE IS NO INDICATION EITHER IN ASSESSME NT OR IN THE CIT(A)S ORDER ABOUT THE PAYEES TO HAVE UNDERTAKEN ANY CONTRACTUAL LIABILITY SO AS TO ATTRACT SECTION 194C OF THE ACT. HONBLE CALCUTTA HIGH COURTS JUDGMENT IN ITA NO.127 OF 2009, CIT VS. M/S. STUMM INDIA HOLDS THAT THE IMPUGNED DISALLOWAN CE DOES NOT APPLY IN THE ABSENCE OF A PAYEE HAVING UNDERTAKEN ANY SUCH CONTR ACTUAL LIABILITY. I THEREFORE DELETE THE IMPUGNED DISALLOWANCE ON THIS COUNT ALON E. THE ASSESSEE SUCCEEDS IN HIS FORMER SUBSTANTIVE GRIEVANCE. 3. NEXT COMES 40A(3) DISALLOWANCE OF RS.11,11,930/- ON ACCOUNT OF THE ASSESSEES HAVING MADE CASH PAYMENTS TO VARIOUS TRA NSPORTERS IN A SINGLE DAY. I FIND THAT THE CIT(A) HAS AFFIRMED THE ASSESSING OFFICER S ACTION TO THIS EFFECT WHILST PASSING LOWER APPELLATE ORDER EX PARTE. I THEREFORE DEEM IT APPROPRIATE TO RESTORE THE INSTANT ISSUE BACK TO THE CIT(A) FOR A FRESH ADJUDI CATION AS PER LAW WITHIN THREE EFFECTIVE OPPORTUNITIES OF HEARING. 4. THIS ASSESSEES APPEAL IS PARTLY ALLOWED IN ABOV E TERMS. ORDER PRONOUNCED IN ACCORDANCE WITH RULE 34(3) OF T HE ITAT RULES BY PUTTING ON NOTICE BOARD ON 10 /10/2019 SD/- (S.S. GODARA) JUDICIAL MEMBE R GAUHATI, *DKP/SR.PS ' - 10/10/2019 ITA NO.146/GAU/2019 A.Y .2011-12 MANOJ KR. DAS VS. ITO WD-3(2), GUWA P AGE 3 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-MANOJ KR. DAS, FLAT 1A, NAKSHATRA RESIDE NCY, RUPALIM PATH, BHAGADATTAPUR, SURVEY, GUWAHATI-781028 2. /RESPONDENT-ITO WARD-3(2), AAYKAR BHAWAN, G.S. ROAD , GUWAHATI- 781005 3. & ' , / CONCERNED CIT GUWAHATI 4. ' - / CIT (A)-2, GUWAHATI 5. - //& , & , / DR, ITAT, GUWAHATI 6. 1 / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY (ON TOUR) &,