Dr. Partha Biswas, Kolkata V. JCIT, Range - 55, Kolkata , Kolkata

ITA 1641/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5982 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 14-07-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHERJEE
• Keywords: Depreciation
• Section: 143(3); 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S.GODARA, JUDICIAL MEMBER ITA NO.1641/KOL/2017 ASSESSMENT YEAR:2011-12 DR. PARTHA BISWAS HOUSE NO.4 CLUSTER-VII, PURBACHAL, SALT LAKE CITY, KOLKTA-97 [ PAN NO.AGUPB 7947 B ] / V/S . JCIT, RANGE-55, KOLKATA-700 016 /APPELLANT .. /RESPONDENT /BY APPELLANT NONE /BY RESPONDENT SHRI A. BHATTACHERJEE, ADDL. CIT-DR /DATE OF HEARING 23-07-2018 /DATE OF PRONOUNCEMENT 31-07-2018 /O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2011- 12 ARISES AGAINST COMMISSIONER OF INCOME TAX (APPEALS)-6, KOLKATAS O RDER DATED 07.03.2017, PASSED IN CASE NO.135/CIT(A)-6/KOL/14-15 UPHOLDING ASSESSI NG OFFICERS ACTION DISALLOWING ADDITION HIS SALARY PAYMENT MADE TO DR. SHULE KUMAR OF 62,000/- AS WELL AS DEPRECIATION OF CAR AND DRIVER SALARY @ 20% COMING TO 28,204; RESPECTIVELY, INVOLVING PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. WE COME TO FORMER ISSUE OF SECTION 40(A)(IA) DI SALLOWANCE OF 62,000/-. THE ASSESSEE HAD ADMITTEDLY PAID THE IMPUGNED SUM IN TH E MONTHS OF JUNE TO NOVEMBER, 2010 @ 10,000/- PER MONTH FOR FOUR MONTHS AND 11,000/- EACH FOR TWO MONTHS. HE DID NOT DEDUCT TDS THEREUPON BY TREATING THE SAME T O BE IN THE NATURE OF SALARY. BOTH THE LOWER AUTHORITIES HAVE REJECTED HIS CLAIM IN AB SENCE OF EMPLOYEE-EMPLOYER RELATIONSHIP TO TREAT THE SUM IN QUESTION AS FEE IN LIES OF AVAILING PROFESSIONAL SERVICES. THEY CONCLUDE THAT PAYEE DOCTOR HAD IN FACT ASSISTE D THE ASSESSEE RATHER THAN HAVING ITA NO. 1641/KOL/2017 A.Y. 2011-12 DR. PARTHA BISWAS VS. JCIT, RG-55 KOL. PAGE 2 EMPLOYEE-EMPLOYER RELATIONSHIP BETWEEN THEM. WE FIN D NO MERIT IN THE LOWER AUTHORITIES STANDS. THE ASSESSEES ABOVE PAYMENTS SEQUENCE AT PERIODIC INTERVAL; AS WELL AS ABSENCE OF ANY EVIDENCE IN BOOKS INDICATING THE RELEVANT ASSISTANCE OFFERED BY THE PAYEE IS FORMS SUFFICIENT MATERIAL TO CONCLUDE THAT THERE WERE HAVING EMPLOYEE- EMPLOYER RELATIONSHIP BETWEEN THEM. THE IMPUGNED SA LARY PAYMENTS ADMITTEDLY DO NOT SATISFY THRESHOLD LIMIT OF TDS DEDUCTION U/S. 1 92 OF THE ACT. WE THEREFORE ACCEPT ASSESSEES FORMER SUBSTANTIVE GROUND CHALLENGING OF SECTION 40(A)(IA) DISALLOWANCE OF 62,000/-. HE SUCCEEDS IN THE INSTANT FORMER SUBSTAN TIVE GROUND. 3. NEXT COMES TO ASSESSEES LATTER SUBSTANTIVE GROU ND CHALLENGING BOTH THE LOWER AUTHORITIES ACTION DISALLOWING HIS CAR DEPRECIATION AND DRIVER SALARY TO THE EXTENT 20% COMING TO 28,204/- INVOLVING CORRESPONDING SUMS OF 65,618/- AND 75,400; RESPECTIVELY. LEARNED DEPARTMENTAL REPRESENTATIVE F AILS TO DISPUTE THAT THE IMPUGNED DISALLOWANCE EVEN IF ACCEPTED IN PRINCIPLE, IS ON H IGHER SIDE WE THEREFORE RESTRICT THE SAME TO THAT @ 10% ONLY COMING TO THIS SUM 14,102/- WITH A RIDER THAT OUR INSTANT ADJUDICATION WOULD NOT BE TREATED AS A PRECEDENT. T HIS LATTER SUBSTANTIVE GROUND IS ACCEPTED IN PART. 4. THIS ASSESSEES APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 31/07/2018 SD/- SD/- ( !) (#$ !) (P.M.JAGTAP) (S.S.GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER *DKP-SR.PS % - 31/07/2018 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-DR. PARTHA BISWAS, HOUSE NO.4 CLUSTER-VI I, PURBACHAL, SALT LAKE CITY, KOLKATA-97 2. /RESPONDENT-JCIT, RANGE-55, KOLKATA-16 3. ( + / CONCERNED CIT 4. + - / CIT (A) 5. , $$( , ( / DR, ITAT, KOLKATA 6. 0 / GUARD FILE. BY ORD ER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO (,