M/s. M.L. Das & Sons, Howrah V. ITO, Ward - 48(1), Kolkata, Kolkata

ITA 1467/KOL/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5057 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 24-02-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 02-11-2011
• Court: TRIBUNAL
• Department Lawyers: AMITAVA BHATTACHARYYA
• Assessee Lawyers: RUDRA DHAR
• Keywords: Tax effect
• Section: 143(3); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KO LKATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI M. BALAGANES H, AM] I.T.A NO.1467/KOL/2011 ASSESSMENT YEAR: 2007-08 M/S. M. L. DAS & SONS VS. INCOME-TAX OFFICER, W D-48(1), KOLKATA (PAN: AAFFM8921R) ( APPELLANT ) ( RESPONDENT ) & I.T.A NO.1613/KOL/2011 ASSESSMENT YEAR: 2007-08 INCOME-TAX OFFICER, WD-48(1), KOLKATA VS. M/S. M. L. DAS & SONS (APPELLANT) (RESPONDENT) DATE OF HEARING: 24.02.2016 DATE OF PRONOUNCEMENT: 24.02.2016 FOR THE APPELLANT: SHRI RUDRA DHAR, ADVOCATE FOR THE RESPONDENT: SHRI AMITAVA BHATTACHARYYA, SR. DR ORDER PER SHRI MAHAVIR SINGH, JM: BOTH THESE APPEALS BY ASSESSEE AND REVENUE ARE ARIS ING OUT OF ORDER OF CIT(A)-XXX, KOLKATA VIDE APPEAL NO. 126/CIT(A)-XXX/WD-48(1)/200 9-10 DATED 08.08.2011. ASSESSMENT WAS FRAMED BY ITO, WARD-48(1), KOLKATA U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2007- 08 VIDE HIS ORDER DATED 22.12.2009. 2. THE FIRST ISSUE IN THIS APPEAL OF ASSESSEE IS A GAINST THE ORDER OF CIT(A) CONFIRMING THE ADDITION OF BOGUS LABOUR CHARGES OF RS.17,61,894/- . 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE AO WHILE FRAMING ASSESSMENT U/S. 1 43(3) OF THE ACT NOTED THAT THIS LABOUR CHARGES PERTAINS TO AY 2007-08, THE YEAR UNDER CONS IDERATION AMOUNTING TO RS.17,61,894/-. AS THE ASSESSEE COULD NOT SUBSTANTIATE THIS LABOUR CHA RGES HE TREATED THE SAME AS BOGUS. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO ALSO C ONFIRMED THE ACTION OF AO BY THE REASON THAT THE INSPECTOR DEPUTED FOR VERIFICATION COULD NOT TR ACE THESE PARTIES NOR THE ASSESSEE COULD FILE CONFIRMATIONS OR SIMILAR EVIDENCE WHEN CONFRONTED B Y AO. NOW BEFORE US, LD. COUNSEL FOR THE ASSESSEE ONLY REQUESTED THAT HE IS READY TO PRODUCE ALL EVIDENCES INCLUDING BOOKS OF ACCOUNT BEFORE THE AO IN CASE MATTER IS REMITTED BACK TO TH E FILE OF AO. ON THIS, LD. SR. DR HAS NOT OBJECTED. IN VIEW OF THE ABOVE FACTS, WE RESTORE T HE ISSUE TO THE FILE OF AO FOR FRESH ADJUDICATION AND ASSESSEE IS DIRECTED TO PRODUCE ALL EVIDENCES I NCLUDING BOOKS OF ACCOUNT BEFORE THE AO. ACCORDINGLY, THIS ISSUE OF ASSESSEES APPEAL IS ALL OWED FOR STATISTICAL PURPOSES. 2 ITA NO.1467/KOL/2011 & 1613/K/2013 M. L. DAS & SONS AY 2007-08 2 4. THE NEXT ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) CONFIRMING THE ACTION OF AO IN MAKING DISALLOWANCE OF RS.8,17,121/ - ON ACCOUNT OF WAGES PAID TO DAILY LABOURERS WITHOUT DEDUCTION OF TDS U/S. 194C OF THE ACT BY IN VOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ASSESSEE CLAIMED BEFORE THE AO THA T IT HAS PAID DAILY LABOUR CHARGES BELOW RS.50,000/- PER ANNUM AND THE PROVISIONS OF SECTION 194C OF THE ACT DOES NOT APPLY TO HIS CASE IF INDIVIDUAL LABOUR CASE IS SEEN. THE CIT(A) HAS NOT ACCEPTED THE PLEA AND CONFIRMED THE ADDITION. WE FIND THAT IT IS FOR THE ASSESSEE TO PROVE THE PA YMENT OF LABOUR CHARGES THAT THE INDIVIDUAL PAYMENT IS BELOW RS.50,000/- IN EACH OF THE CASE PE R ANNUM. FOR THIS, LD. COUNSEL FOR THE ASSESSEE REQUESTED FOR SETTING ASIDE THIS ISSUE TO THE FILE OF AO SO THAT THE ASSESSEE WILL BE ABLE TO PROVE ITS CASE. IN VIEW OF THE GIVEN FACTS, WE ARE OF THE VIEW THAT LET THIS ISSUE BE REMITTED TO THE FILE OF AO FOR RECONSIDERATION AFRESH. ACCORDINGLY , THE ISSUE IS RESTORED TO THE FILE OF AO FOR FRESH CONSIDERATION. THIS ISSUE OF ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 6. SIMILAR IS THE ISSUE IN RESPECT TO DIFFERENCE IN RECEIPT AS PER TDS CERTIFICATE AND RECORDED BY ASSESSEE IN ITS BOOKS OF ACCOUNT AT RS.1,12,750/ -. LD. COUNSEL FOR THE ASSESSEE AS WELL AS LD. SR. DR FAIRLY AGREED THAT THIS ISSUE CAN ALSO BE RE STORED TO THE FILE OF AO FOR VERIFICATION OF THE DOCUMENTS. IN TERM OF THE ABOVE, WE RESTORE THIS I SSUE TO THE FILE OF AO FOR FRESH VERIFICATION. THIS ISSUE OF ASSESSEES APPEAL IS ALSO ALLOWED FOR STATISTICAL PURPOSES. 7. NOW, WE ARE COMING TO REVENUES APPEAL. AT THE OUTSET, IT IS SEEN THAT THE QUANTUM INVOLVED IN THIS CASE IS RS.25,20,133/- AND TAX EFF ECT ON THE DISPUTED ADDITION BEFORE US IS RS.8,56,845/-, WHICH IS LESS THAN RS. 10 LACS. 8. AFTER PERUSING THE MATERIALS AVAILABLE ON RECOR D, WE FIND THAT THE ADDITIONS DISPUTED BEFORE US IS BELOW THE TAX EFFECT LIMIT PRESCRIBED BY CBDT VIDE CIRCULAR NO. 21 / 2015 DATED 10.12.2015 FOR PREFERRING APPEALS BEFORE TRIBUNAL BY THE REVEN UE. ON PERUSAL OF THE CIRCULAR NO. 21 / 2015 DATED 10.12.2015 AND THE MATERIALS AVAILABLE ON REC ORD, LD. DR COULD NOT POINT OUT WHETHER THIS CASE FALLS UNDER ANY OF THE EXCEPTION AS PROVIDED I N THE CIRCULAR DESPITE SPECIFIC OPPORTUNITY WAS GIVEN, DOES NOT FALL UNDER ANY OF THE EXCEPTIONS CO NTEMPLATED IN THE SAID CIRCULAR, AS THIS IS COVERED. WE ALSO FIND THAT THE CIRCULAR MAKES IT V ERY CLEAR THAT THE REVISED MONETARY LIMITS SHALL APPLY RETROSPECTIVELY TO PENDING APPEALS ALSO. WE F IND THAT THE CIRCULAR IS BINDING ON THE TAX AUTHORITIES. THIS POSITION HAS BEEN CONFIRMED BY TH E HONBLE APEX COURT IN THE CASE OF COMMISSIONER OF CUSTOMS VS INDIAN OIL CORPORATION L TD REPORTED IN 267 ITR 272 (SC). HENCE, WE HOLD THAT THE APPEAL OF THE REVENUE DESERVES TO BE DISMISSED IN TERMS OF LOW TAX EFFECT VIDE 3 ITA NO.1467/KOL/2011 & 1613/K/2013 M. L. DAS & SONS AY 2007-08 3 CIRCULAR NO.21 / 2015 DATED 10.12.2015. ACCORDINGL Y, THIS BEING A LOW TAX EFFECT CASE, WE DISMISS THIS APPEAL OF REVENUE IN LIMINE, AS UNADMITTED, WI THOUT GOING INTO THE MERITS OF THE CASE. 9. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AND REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (M. BALAGANESH) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 24 TH FEBRUARY, 2016 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. M. L. DAS & SONS, 84/5, SRI KISHAN VAKAT LANE, HOWRAH-1. 2. RESPONDENT ITO, WARD-48(1), KOLKATA. 3. CIT(A), , KOLKATA 4. CIT, , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .