ITO Wd-40(4), Kolkata, Kolkata V. Shri Abhijit Ghosh, Kolkata

ITA 1496/KOL/2012

• Counselvise Citation: [2013] 119 COUNSELVISE.COM (IT) 2960 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2013
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 16-10-2012
• Court: TRIBUNAL
• Department Lawyers: SUSANTA KR SINHA
• Section: 40A(3)

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE . . . . . . . . , ! /AND ''# $ $ $ $, , , , ) [BEFORE SHRI P. K. BANSAL, AM & SHRI GEORGE MATHAN, JM] !% !% !% !% / I.T.A NO. 1496/KOL/2012 &' () &' () &' () &' ()/ // / ASSESSMENT YEAR: 2005-06 ASSISTANT COMMISSIONER OF INCOME-TAX, VS. SHRI ABH IJIT GHOSH CIRCLE-40, KOLKATA (PAN: AEJPG9086M) ($+ /APPELLANT ) (,-$+/ RESPONDENT ) DATE OF HEARING: 12.03.2013 DATE OF PRONOUNCEMENT: 12.03.2013 FOR THE APPELLANT: SHRI SUSANTA KR. SINHA, J CIT, SR. DR FOR THE RESPONDENT: SHRI SOUMITRA CHOUDHURY, ADVOCATE . / ORDER PER SHRI GEORGE MATHAN, JM: THIS IS AN APPEAL FILED BY REVENUE AGAINST THE ORDE R OF CIT(A)-XIX, KOLKATA IN APPEAL NO. 82/CIT(A)-XIX/DCIT,CIR-40/KOL/11-12 DATED 14.11 .2011 FOR ASSESSMENT YEAR 2005-06. 2. SHRI SUSANTA KR. SINHA, JCIT, SR. DR REPRESENTED ON BEHALF OF REVENUE AND SHRI SOUMITRA CHOUDHURY, ADVOCATE REPRESENTED ON BEHALF OF ASSESSEE. 3. IN REVENUES APPEAL THE REVENUE HAS RAISED THE F OLLOWING GROUNDS: 1. THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON F ACT IN RESTRICTING THE DISALLOWANCE U/S. 40A(3) @ 20% OF RS.26,88,989/- INSTEAD OF RS.1,98,1 5,544/-. 4. IT WAS SUBMITTED BY LD. DR THAT DURING THE COURS E OF ASSESSMENT IT WAS NOTICED THAT THE ASSESSEE HAD MADE PAYMENTS TO VARIOUS PARTIES BY BE ARER CHEQUES FOR AMOUNTS EXCEEDING RS.20,000/- AND CONSEQUENTLY THE AO HAD INVOKED THE PROVISIONS OF SECTION 40A(3) OF THE ACT AND HAD DISALLOWED 20% OF THE SAME. IT WAS THE SUB MISSION THAT ON APPAL BY THE ASSESSEE THE LD. CIT(A) HAD REDUCED THE DISALLOWANCE BY HOLDING THAT MANY OF THE BEARER CHEQUES WERE BELOW RS.20,000/-. IT WAS SUBMISSION THAT AS THE A GGREGATE OF THE PAYMENT TO EACH PARTY WAS IN EXCESS OF RS.20,000/- THE DISALLOWANCE AS MADE BY A O WAS LIABLE TO UPHELD. IN REPLY, THE LD. AR SUBMITTED THAT THE TOTAL AMOUNT OF PAYMENTS MADE BY BEARER CHEQUES WAS RS.1,98,15,544/-. OUT OF THE SAME FOR AN AMOUNT OF RS.26,88,989/-, TH E PAYMENT WAS BY BEARER CHEQUES 2 ITA NO.1496/K/2012 SHRI ABHIJIT GHOSH, AY 2005-06 EXCEEDING RS.20,000/-. THE BALANCE OF RS.1,71,26,5 55/- WAS BY BEARER CHEQUES OF LESS THAN RS.20,000/-. IT WAS SUBMISSION THAT THE ISSUE OF A GGREGATE OF PAYMENTS CAME INTO EFFECT FROM THE AY 2009-10 AND THE AY UNDER APPEAL WAS AY 2005- 06. IT WAS SUBMISSION THAT THE FIBNDING OF THE LD. CIT(A) THAT THE BEARER CHEQUES FOR AN AMOUNT OF RS.1,71,26,555/- WERE LESS THAN RS.20,000/- HAS NOT BEEN DISPUTED. IT WAS SUB MISSION THAT THE FINDING OF THE LD. CIT(A) WS LIABLE TO BE UPHELD. IT WAS FURTHER SUBMISSION THAT THE ISSUE WAS SQUARELY COVERED BY THE DECISION OF THE HONBLE ORISSA HIGH COURT IN THE CA SE OF CIT VS. ALOO SUPPLY CO. REPORTED IN 121 ITR 680 (ORR.) AND THE SLP FROM WHICH HAS BEEN DISMISSED BY THE HONBLE SUPREME COURT REPORTED IN 143 ITR (ST.) 67 (SC). IT WAS ALSO SUB MISSION THAT THE ISSUE WAS SQUARELY COVERED BY THE DECISION OF HONBLE MADHYA PRADESH HIGH COUR T IN THE CASE OF CIT VS. TRIVENIPRASAD PANNALAL REPORTED IN 228 ITR 680 (MP). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PER USAL OF THE ASSESSMENT ORDER SHOWS THAT THE AO HAS INVOKED THE PROVISIONS OF SECTION 4 0A(3) OF THE ACT IN RESPECT OF THE AGGREGATE OF PAYMENTS IN EXCESS OF RS.20,000/-. ON PERUSAL O F THE ORDER OF LD. CIT(A) IN PARA 4.2 CLEARLY SHOWS THAT THE LD. CIT(A) HAS VERIFIED AND HAS COME TO THE CONCLUSION ON THE FACTS THAT THE AMOUNT OF RS.1,71,26,555/- WAS PAID THROUGH EACH BE ARER CHEQUES BEING LESS THAN RS.20,000/-. THIS FINDING OF THE LD. CIT(A) HAVING NOT BEEN DISL ODGED. IN THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE FINDING OF THE LD. CIT(A) IS ON A RIG HT FOOTING DOES NOT CALL FOR ANY INTERFERENCE. IN ANY CASE, THIS VIEW IS ALSO SUPPORTED BY THE DEC ISIONS OF THE HONBLE ORISSA HIGH COURT AND HONBLE MADHYA PRADESH HIGH COURT REFERRED TO SUPRA . 6. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. 7. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- . . . . . . . . , ''# $ $ $ $ , (P. K. BANSAL) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER ( / / / /) )) ) DATED : 12 TH MARCH, 2013 01 &2' &3 JD.(SR.P.S.) 3 ITA NO.1496/K/2012 SHRI ABHIJIT GHOSH, AY 2005-06 . 4 ,&&5 65(7- COPY OF THE ORDER FORWARDED TO: 1 . $+ / APPELLANT ACIT, CIRCLE-40, KOLKATA. 2 ,-$+ / RESPONDENT SHRI ABHIJIT GHOSH, 66C/2, SUREN SAR KAR ROAD, KOLKATA-10 . 3 . &. ( )/ THE CIT(A), KOLKATA 4. 5. &. / CIT KOLKATA 5 <&= ,& / DR, KOLKATA BENCHES, KOLKATA -5 ,&/ TRUE COPY, .>/ BY ORDER, ? !' /ASSTT. REGISTRAR .