ITO Wd 36(3), Kolkata, Kolkata V. M/s Saha Agency, Kolkata

ITA 1596/KOL/2012

• Counselvise Citation: 159623514 RSA 2012
• Duration Of Justice: 2 year(s) 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 02-11-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL

Judgement Text

I.T.A. NO . 1596 /KOL./201 2 AS SESSMENT YEAR: 200 9 - 20 10 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI SHAMIM YAHYA (ACCOUNTANT MEMBER) , AND SHRI GEORGE MATHAN (JUDICIAL MEMBER) I.T.A. NO. 1596 /KOL . / 20 1 2 ASSESSMENT YEAR : 200 9 - 20 10 INCOME TAX OFFICER,............... ........ .................... . APP ELL ANT WARD - 36(3), KOLKATA, AAYAKAR BHAWAN POORVA , 8 TH FLOOR, ROOM NO. 812, E.M. BYPASS, KOLKATA - 700 107 - VS. - M/S. SAHA AGENCY,...................... ........... .... ............ .. . RESPONDENT 10, OLD POST OFFICE STREET, R OOM NO. 36A, 1 ST FLOOR, KOLKATA - 700 001 [PAN : A AOFS 4826 L ] APPEARANCES BY: SHRI SUBHRAJYOTI BHATTACHARJEE, SR. D.R., FOR THE DEPARTMENT SHRI S.M. SURANA , ADVOCATE , FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : JANUARY 0 7 , 2 01 5 DATE OF PRONOUNC ING THE ORDER : JANUARY 07 , 201 5 O R D E R PER GEORGE MATHAN : THIS IS AN APPEAL FILED BY THE REVENU E AGAINST THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - X X , KOLKATA IN APPEAL NO. 401 /CIT(A)/ X X / WD - 36(3)/11 - 12/KOL DATED 31 . 07 .20 12 FOR TH E ASSESSMENT YEAR 200 9 - 10 . 2 . SHRI SUBHRAJYOTI BHATTACHARJEE, SR. D.R., REPRESENTED ON BEHALF OF THE REVENUE AND SHRI S.M. SURANA , ADVOCATE , REPRESENTED ON BEHALF OF THE ASSESSEE . 3 . AT THE TIME OF HEARING, IT WAS SUBMITTED BY THE LD. SR. D .R. THAT THE LD. CIT(APPEALS) HAD DELETED THE VARIOUS ADDITIONS MADE BY RELYING UPON I.T.A. NO . 1596 /KOL./201 2 AS SESSMENT YEAR: 200 9 - 20 10 PAGE 2 OF 3 FRESH EVIDENCES. HE VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER. IT WAS THE SUBMISSION THAT THE ORDER OF THE LD. CIT(APPEALS) WAS LIABLE TO BE REVERSED. 4. IN RE PLY, LD. A.R. SUBMITTED THAT IN RESPECT OF EACH OF THE ISSUES REMAND REPORT HAD BEEN CALLED FOR BY THE LD. CIT(APPEALS) AND IN THE REMAND REPORT THE ASSESSING OFFICER HAD CATEGORICALLY ADMITTED THAT NO FRESH EVIDENCE WAS PRODUCED BEFORE THE LD. CIT(APPEALS ). HE DREW OUR ATTENTION TO PARA 5.2, 6.2, 7.2, 8.2, 9.2 AND 10.2 OF THE ORDER OF LD. CIT(APPEALS) TO SUBMIT THAT THE LD. CIT(APPEALS) HAD REPRODUCED THE REMAND REPORT WHEREIN THE ASSESSING OFFICER HAD SPECIFICALLY ADMITTED THAT NO FRESH EVIDENCE HAD BEEN PRODUCED BEFORE THE LD. CIT(APPEALS). IT WAS THE FURTHER SUBMISSION THAT IN RESPECT OF THE ISSUE OF 40(A)(IA) IN GROUND NO. 1 OF THE REVENUE S APPEAL, LD. CIT(APPEALS) HAS DELETED THE ADDITION BY FOLLOWING THE DECISION OF THE HON BLE SPECIAL BENCH OF THIS TRIBUNAL IN THE CASE OF MERILYN SHIPPING & TRANSPORTS IN ITA NO. 477/VIZ./2008 ORDER DATED 29.03.2012, WHICH HAS BEEN OVERRULED BY THE HON BLE JURISDICTIONAL HIGH COURT OF CALCUTTA. IT WAS THE SUBMISSION THAT THE ARGUMENT OF THE ASSESSEE THAT THE PAYMENTS WERE REIMBURS EMENTS AND CONSEQUENTLY DID NOT REQUIRE DEDUCTION OF TAX AT SOURCE, HAD NOT BEEN CONSIDERED BY THE LD. CIT(APPEALS) OR THE ASSESSING OFFICER. IT WAS THE SUBMISSION THAT HE HAD NO OBJECTION IF THIS ISSUE WAS RESTORED TO THE FILE OF THE ASSESSIN G OFFICER FOR VERIFICATION AS TO THE CLAIM OF THE ASSESSEE T HAT THE PAYMENTS WERE REIMBURSEMENTS. HE VEHEMENTLY SUPPORTED THE ORDER OF THE LD. CIT(APPEALS). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERUSAL OF THE ORDER OF THE LD. CIT(APPEALS) CLEAR LY SHOWS THAT THE LD. CIT(APPEALS) HAS CATEGORICALLY EXTRACTED THE REMAND REPORT OF THE ASSESSING OFFICER WHEREIN THE ASSESSING OFFICER HAS CATEGORICALLY ADMITTED THAT NO FRESH EVIDENCE HAS BEEN PRODUCED BEFORE THE LD. CIT(APPEALS). THIS BEING SO, ADMITTED LY THE GROUNDS RAISED BEFORE US DO NOT A R ISE OUT OF THE ORDER OF I.T.A. NO . 1596 /KOL./201 2 AS SESSMENT YEAR: 200 9 - 20 10 PAGE 3 OF 3 THE LD. CIT(APPEALS) AND CONSEQUENTLY LIABLE TO BE DISMISSED AND WE DO SO. HOWEVER, AS IT HAS BEEN CONCEDED BY THE LD. A.R. THAT IN RESPECT OF GROUND NO. 1 OF THE REVENUE S APPEAL, THE ISSUE COULD BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR VERIFICATION AS TO WHETHER THE PAYMENTS AS DISALLOWE D BY APPLYING THE PROVISIONS OF SECTION 40(A)(IA) WERE REIMBURSE MENTS OR NOT , T HIS ISSUE IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE - ADJUDICATION AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY TO SUBSTANTIATE ITS CASE. GROUNDS NO. 2 TO 7 OF THE REVENUE S APPEAL STAND DISMISSED AND GROUND NO. 1 OF THE REVENUE S APPEAL S TANDS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APP EAL FILED BY THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH JANUARY , 201 5 . SD/ - SD/ - SHAMIM YAHYA GEORGE MATHAN ( ACCOUNTANT MEMBER) ( JUDICIAL MEMBER) KOLKATA, THE 7 TH D AY OF JANUARY , 201 5 COPIES TO : (1) INCOME TAX OFFICER, WARD - 36(3), KOLKATA, AAYAKAR BHAWAN POORVA , 8 TH FLOOR, ROOM NO. 812, E.M. BYPASS, KOLKATA - 700 107 (2) M/S. SAHA AGENCY, 10, OLD POST OFFICE STREET, ROOM NO. 36A, 1 ST FLOOR, KOLKATA - 70 0 001 (3) COMMISSIONER OF INCOME - TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA B ENCHES, KOLKATA LAHA/SR. P.S.