Subrata Bid L/h of Late Biswanath Bid, Asansol V. I.T.O.,Ward-1(2), Asansol

ITA 163/KOL/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 1465 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 11-02-2021
• Assessment Year: 2009-2010
• Appeal Filed On: 07-02-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA
• Assessee Lawyers: U DASGUPTA
• Keywords: TDS; Set aside
• Section: 40(a)(ia); 194J

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B - SMC KOLKATA BEFORE SHRI S ANJAY GARG , JUDICIAL MEMBER . / ITA NO. 163 /KOL/2020 ASSESSMENT YEAR: 20 09 - 10 SUBRATA BID L/N OF LATE SHRI BISWANATH BID C/O PARAMANANDA GIRI, HILL VIEW EAST, GIRI NIWAS, ASANSOL - 713304 (W.B) . [ PAN NO. A IUPB0987F / V/S . I.T.O., WARD 1(2), ASANSOL, G.T ROAD, SAHANA BUILDING, ASANSOL - 713304. / APPELLANT .. / RESPONDENT HEARING THROUGH VIDEO CONFERENCING / BY APPELLANT MR. U.DASGUPTA, ADVOCATE, AR / BY RESPONDENT MR. JAYANTA KHANRA, JCIT, SR.DR / DATE OF HEARING 1 1 - 02 - 2021 / DATE OF PRONOUNCEMENT 1 1 - 02 - 2021 / O R D E R TH E PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 22/11/2019 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) , ASANSOL [HEREINAFTER REFERRED TO AS CIT(A)] . 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. FIRST GROUND : FOR THAT THE CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS. 6,78,573/ - ON COMMISSION PAYMENT ACCOUNT AND THE SAME MAY PLEASE BE DELETED. 2. SECOND GROUND: FOR THAT THE CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS. 32,429/ - ON ALLEGED UNDISCLOSED COMMISSION , WHEN THE SAME IS ALREADY A PART OF DISCLOSED INCOME, THE ADDITION MADE MAY PLEASE BE DELETED. ITA NO. 163/KOL/20 A.Y 2009 - 10 SUBRATA BID L/N OF LATE SHRI BISWANATH BID PAGE 2 3. THIRD GROUND: FOR THAT THE CIT( A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS. 20,063/ - ON ALLEGED UNDISCLOSED COMMISSION, WHICH THE SAME IS ALREADY DISCLOSED IN THE REGULAR BOOKS AND THE SAME MAY PLEASE BE DELETED. 3. VIDE GROUND NO.1 THE ASSESSEE HAS AGITATED THE CONFIRMATI ON OF ADDITION OF RS. 6,78,573/ - ON ACCOUNT OF COMMISSION PAYMENT. THE LD. ASSESSING OFFICER ( IN SHORT, THE LD. AO) DISALLOWED THE SAID COMMISSION PAYMENT OBSERVING THAT THE ASSESSEE HAS NOT DEDUCTED THE TDS AS THE AMOUNT PAID TO DIFFERENT PERSON S/PARTIES WAS MORE THAN RS. 1,000/ - , WHICH WA S IN VIOLATION OF PROVISIONS OF SECTION 194J OF THE INCOME - TAX ACT, 1961 ( IN SHORT, THE ACT). HE, THEREFORE, MADE THE DISALLOWANCE U/S. 40(A)(IA) OF THE ACT. 4. LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED TH AT, IN FACT, THE ASSESSEE WAS IN LOTTERY BUSINESS AND THE PAYMENT OF COMMISSION WAS MADE TO MANY PARTIES/SMALL BUSINESSMEN, WHO S OLD LOTTERY TICKETS . THAT, THE COMMISSION PAYMENT MADE TO VARIOUS PARTIES WAS LESS THAN RS. 1,000/ - . THEREFORE, THERE WAS NO VIOLATION OF PROVISIONS OF SECTION 194J OF THE ACT. LD. COUNSEL SUBMITTED THAT THE ENTIRE EVIDENCE RELATING TO COMMISSION PAYMENT INCLUDING THE NAMES AND ADDRESSES OF THE PARTIES ETC. WAS FILED BEFORE THE AO, WHICH WAS OVERLOOKED BY BOTH THE LOWER AUTHORITIES. 5. SO FAR AS GROUND NO.2 & 3 ARE CONCERNED, THE SAME PERTAINS TO THE ADDITION OF COMMISSION INCOME. LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE AMOUNT OF ADD ITION AS MADE VIDE GROUND NOS. 2 & 3, IN FACT, WAS INCLUDED THE COMMISSION RECEIPT OF RS. 52,625/ - ON WHICH THE ASSESSEE HAS PAID THE TAX. THAT, LD. AO HA S MADE DOUBLE TAXES. THE LD. DR THOUGH HAS RELIED ON THE FINDINGS OF THE LOWER AUTHORITIES, BUT SUBM ITTED THAT THE FACTUAL ASPECT OF THE ISSUE SHOULD HAVE BEEN EXAMINED BY THE LD. AO . 6. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND GONE THROUGH THE RECORD. IN MY VIEW OF THE ABOVE RAISED CONTENTIONS , THE IMPUGNED ORDER OF THE LD. C IT(A) IS SET ASIDE AND MATTER IS RESTORED TO THE FILE OF THE AO TO DECIDE THE ISSUE AFRESH AS PER LAW WITH A DIRECTION THAT THE AO WILL CONSIDER THE CONTENTIONS RAISED BY THE LD. COUNSEL FOR THE ASSESSEE TO EXAMINE THE EVIDENCES, IF ANY, FURNISHED BY THE ITA NO. 163/KOL/20 A.Y 2009 - 10 SUBRATA BID L/N OF LATE SHRI BISWANATH BID PAGE 3 ASSESSEE AND THEREAFTER TO DECIDE THE ISSUE AFRESH . NEEDLESS TO SAY THAT LD.AO WILL PROVIDE ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE TO PRESENT HIS CASE AND THEREAFTER, HE WILL DECIDE THE ISSUE(S) AFRESH IN ACCORDANCE WITH LAW. THE APPEAL OF THE ASSESSEE STANDS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT AT THE CLOSE OF THE HEARING ON THURSDAY DAY, 1 1 TH FEBRUARY , 2021 . SD/ - /DATE - 1 1 /02/2021 (SANJAY GARG) / KOLKATA JUDICIAL MEMBER * *PP /SR.PS / COPY OF ORDER FORWARDED TO: - 1. /APPELLANT - SUBRATA BID , L/N OF LATE SHRI BISWANATH BID C/O PARAMANANDA GIRI, HILL VIEW EAST, GIRI NIWAS, ASANSOL - 713304 (W.B). 2. /RESPONDENT - I.T.O., WARD 1(2), ASANSOL, G.T ROAD, SAHANA BUILDING, ASANSOL - 713304. 3. / CONCERNED CIT 4. - / CIT (A) 5. , / DR, ITAT, KOLKATA 6. / GUARD FILE. /TRUE COPY/ BY ORDER/ , / ,