K.K. Puri News Distributors Pvt. Ltd., Kolkata V. ITO, Ward - 3(1), Kolkata, Kolkata

ITA 1654/KOL/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83200 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 11 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2014
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 01-08-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 02-12-2011
• Court: TRIBUNAL
• Department Lawyers: K K TRIPATHI
• Assessee Lawyers: SOUMITRA CHOW DHURY
• Keywords: Reopening of assessment; Difference of opinion; Assessment record; Change of opinion
• Section: 143(3); 147; 148

Judgement Text

, SM C , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: KOLKATA ( ) BEFORE , ) [BEFORE SHRI MAHAVIR SINGH, JM] / I.T.A NO. 1 654 /KOL/20 1 1 / ASSESSMENT YEAR : 20 0 5 - 0 6 K. K. PURI NEWS DISTRIBUTORS PVT. LTD. VS. INCOME - TAX OFFICER, WD - 3( 1 ), KOLKATA (PAN:A ACCK6657J ) ( /APPELLANT ) ( / RESPONDENT ) DATE OF HEARING: 2 4 . 11 .201 4 DATE OF PRONOUNCEMENT: 26 . 1 1 .201 4 FOR THE APPELLANT : SHRI SOUMITRA CHOWDHURY, ADVOCATE FOR THE RESPONDENT : SHRI K. K. TRIPATHI , JCIT, SR. DR / ORDER THIS APPEAL BY ASSESSEE IS ARI SING OUT OF ORDER OF CIT(A) - I , KOLKATA IN APPEAL NO. 201 /CIT(A) - I/ WD - 3(1)/1 0 - 11 DATED 15 . 0 7 .201 1 . ASSESSMENT WAS FRAMED BY ITO, WARD - 3( 1 ), KOLKATA U/S. 143(3) /147 OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) FOR ASSESSMENT YEAR 200 5 - 0 6 VIDE HIS ORDER DATED 30 .1 1 .20 1 0 . 2. THIS APPEAL OF ASSESSEE IS TIME BARRED BY 31 DAYS. CONDONATION PETITION HAS BEEN FILED BY ASSESSEE SUPPORTING AFFIDAVIT. AFTER CONSIDERING THE CONDONATION PETITION AND NO OBJECTION FROM LD. SR. DR, I CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 3 . THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGAIN ST THE ORDER OF CIT(A) CONFIRMING THE ADDITION MADE BY AO BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT FOR NON - DEDUCTION OF TDS ON TRADE DISCOUNT TREATING THE SAME AS COMMISSION. THE AO REOPENED THE ASSESSMENT BY ISSUING NOTICE U/S. 148 OF T HE ACT. 4 . I HAVE HEARD BOTH THE SIDES AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. BRIEFLY STATED FACTS ARE THAT THE ORIGINAL RETURN OF INCOME WAS FILED BY ASSESSEE FOR AY 2005 - 06 ON 31.10.2005. SUBSEQUENTLY, ASSESSMENT WAS COMPLETED U/S. 143 (3) OF THE ACT ON 27.12.2007 AFTER MAKING AN ADDITION OF RS.76,000/ - . SUBSEQUENTLY, THE AO ISSUED NOTICE U/S. 148 OF THE ACT ON 11.05.2009 FOR REOPENING OF ASSESSMENT U/S. 147 OF THE ACT. THE REOPENING 2 ITA NO.1 6 5 4 /K/201 1 K.K. PURI NEWS DIST. P. LTD. , AY 200 5 - 0 6 WAS DONE FOR THE REASON THAT THE ASSESSEE COMPANY WA S A NEWSPAPER DISTRIBUTOR AND ON SCRUTINY OF ASSESSMENT RECORDS THE AO NOTED THAT THE ASSESSEE HAS CLAIMED COMMISSION OF RS.1,83,357/ - IN ITS P&L ACCOUNT UNDER THE HEAD OFFICE & ADMINISTRATIVE EXPENSES. ACCORDING TO AO, THIS WAS COMMISSION PAYMENT WITHOUT DEDUCTION OF TDS U/S. 194H OF THE ACT. THEREFORE, HE INVOKED THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT AND MADE DISALLOWANCE. THE ASSESSEE CHALLENGED THE ACTION OF AO BEFORE CIT(A) AND HE UPHELD THE ACTION OF AO IN REOPENING AS WELL AS ON MERITS. AGGRIEVED, ASSESSEE CAME IN APPEAL BEFORE TRIBUNAL. I FIND THAT THE ORIGINAL ASSESSMENT WAS COMPLETED U/S. 143(3) OF THE ACT ON 27.12.2007 AND THE FACT THAT THE ASSESSEE WAS A NEWSPAPER DISTRIBUTOR AND IT HAS CLAIMED EXPENSES OF RS.1,83,357/ - ON ACCOUNT O F TRADE DISCOUNT, AS IS EVIDENT FROM BILLS PRODUCED BEFORE HIM WAS ALSO AVAILABLE BEFORE THE AO DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS. THE ASSESSEE HAS DEBITED THESE EXPENSES UNDER THE HEAD OFFICE & ADMINISTRATIVE EXPENSES BUT GIVEN THE NOM ENCLATURE IN THE BILLS AS TRADE DISCOUNT. BUT THE AO HAD ACCEPTED THE SAME WHILE FRAMING ASSESSMENT U/S. 143(3) OF THE ACT. I FIND THAT THIS IS MERELY A CHANGE OF OPINION AND NO REOPENING IS POSSIBLE ON CHANGE OF OPINION. APPEAL OF ASSESSEE IS ALLOWED. 5 . IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED . 6 . ORDER IS PRONOUNCED IN THE OPEN COURT ON 2 6 . 1 1 . 2 0 1 4 S D / - , (MAHAVIR SINGH) JUDICIAL MEMBER DATED : 2 6 T H NOVEMBER , 201 4 JD.(SR.P.S.) - COPY OF THE ORDER FORWARDED TO: 1 . / A PPELLANT K. K. PURI NEWS DISTRIBUTORS PVT. LTD., 9, DACRES LANE, KOLKATA - 700 069 2 / RESPONDENT ITO, WARD - 3( 1 ), KOLKATA . 3 . ( )/ THE CIT(A), KOLKATA 4. 5. / A CIT KOLKATA / DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, / BY ORDER, /ASSTT. REGISTRAR .