A.C.I,T.Cir - 51,Kol, Kolkata V. Sri Tapan Saha, Kolkata

ITA 1688/KOL/2012

• Counselvise Citation: 168823514 RSA 2012
• Duration Of Justice: 1 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2014
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 20-11-2012
• Court: TRIBUNAL
• Department Lawyers: K L BHOWMIK LD
• Keywords: Opportunity of being heard
• Section: 194C

Judgement Text

ITA NO. 1688/KOL/2012-C-AM ACIT,CIR-51, KOL VS. SHR I TAPAN SAHA 1 , IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH: KO LKATA ( ) , , BEFORE HONBLE SRI MAHAVIR SI NGH, JM & HONBLE SRI SHAMIM YAHYA, AM / I.T.A NO. 1688/KOL/2012 / ASSESSMENT YEAR :2008-10 A.C.I.T, CIRCLE-51, KOLKATA VS. SHRI TAP AN SAHA PAN: AIBPS 230 3L ( % /APPELLANT ) ( &'% / RESPONDENT ) % / FOR THE APPELLANT : / SHRI DIPANKAR MUKHOPADHYAY, JCIT/LD.SR.DR &'% / FOR THE RESPONDENT: / SHRI K.L BHOWMIK, ADVOCATE, LD.AR , - /DATE OF HEARING: 27-10-2014 , - /DATE OF PRONOUNCEMENT: 27/10/2014 / ORDER , SHRI SHAMIM YAHYA, AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A) DATED 04/09/2012 PERTAINING TO ASSESSMENT YEAR 2008-10. 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE READ AS UNDER:- 1. LD. CIT(A) HAS ERRED IN DELETING DISALLOWANCE TO WARDS PACKING CHARGES FOR RS.5,29,890/- U/S. 40(A)(IA) OF THE I.T ACT, 1961 BY INTERPRETING THE PROVISION OF S. 40(A)(IA) AS D ISALLOWANCE SHOULD BE RESTRICTED TO ONLY THAT AMOUNT WHICH IS PAYABLE AT THE END OF THE YEAR, WHEREAS AS PER ACT PAYABLE INCLUDES PAID AND THE PROVISION SHOULD BE APPLICABLE TO THE ENTIRE AMOUNT PAID AND PAYABLE WITHOUT TDS. 2. LD. CIT(A) HAS ERRED IN DELETING DISALLOWANCE TO WARDS LABOUR CHARGES FOR RS.9,07,566/- U/S.40(A)(IA) OF THE I.T ACT, 1961 BY INTERPRETING THE PROVISION OF S. 40(A)(IA) AS DISAL LOWANCE SHOULD BE RESTRICTED TO ONLY THAT AMOUNT WHICH IS PAYABLE AT THE END OF THE YEAR, WHEREAS AS PER ACT, PAYABLE INCLUDES PAID AND T HE PROVISION SHOULD BE APPLICABLE TO THE ENTIRE AMOUNT PAID AND PAYABLE WITHOUT TDS. ITA NO. 1688/KOL/2012-C-AM ACIT,CIR-51, KOL VS. SHR I TAPAN SAHA 2 3. AT THE OUTSET THE LD. COUNSEL OF THE ASSESSEE S UBMITTED BEFORE US THAT THE ASSESSEE HAS FILED AN APPLICATION UNDER RULE 27 OF THE APPELLATE TRIBUNAL RULES 1963. THE DETAILED SUBMISSIONS OF THE LD. COUNSEL OF THE ASSESSEE READ S AS UNDER:- THAT IN THE COURSE OF THE APPEAL HEARING BEFORE T HE HONBLE TRIBUNAL THE LD.A/R OF THE RESPONDENT TRIED TO DRAW THE ATTENTIO N OF THE HONBLE BENCH TO THE PAPER BOOK THAT HAD BEEN SUBMITTED ON BEHALF OF THE RESPONDENT ON 10-7- 2014 BUT WITHOUT SUCCESS AS THE RESPONDENT HAD NEI THER PREFERRED CROSS OBJECTION NOR MADE ANY APPLICATION UNDER RULE 27 OF THE APPELLATE TRIBUNAL RULES 1963. THE LD.A/R OF THE RESPONDENT POINTED OUT THAT THE L D. CIT(A) DID NOT EXPRESS HIS VIEW ON THE SPECIFIC GROUNDS TAKEN BEFO RE HIM THAT THE ASSESSEE- RESPONDENT WAS MERELY A SELLER OF GOODS AND NOT A WORKS CONTRACTOR TO INVITE THE PROVISIONS OF TAX DEDUCTION AT SOURCE. DETAIL W RITTEN SUBMISSION HAD ALSO BEEN MADE AS DISCUSSED IN THE IMPUGNED ORDER BUT WI THOUT GIVING THE VERDICT THEREON. THE LOGICAL OUTCOME WOULD HAVE ENABLED T HE RESPONDENT TO GET FULL RELIEF AGAINST THE DISALLOWANCE MADE UNDER SECTION 40(A)(IA) OF THE ACT. THESE FACTS ARE QUITE APPARENT FROM THE RECORDS BEFORE THE HONBLE TRIBUNAL. THE RESPONDENT-ASSESSEE HAD UNFORTUNATELY FAILED T O FILE CROSS OBJECTION. THE TENURE & SPIRIT OF THE RULE 27 WOULD ENABLE THE RESPONDENT-ASSESSEE TO AGITATE BEFORE THE HONBLE BENCH TO CONTEST THE CAS E THE RESPONDENT-ASSESSEE WOULD IN THE CIRCUMSTANCES SUBMIT THAT THIS APPLIC ATION NOW MADE UNDER RULE 27 OF THE APPELLATE TRIBUNAL RULES 1963 WOULD BE A DMITTED BY THE HONBLE BENCH IN THE INTEREST OF JUSTICE. 4. WE HAVE HEARD BOTH THE LD. COUNSEL AND PERUSED THE RECORD. WE FIND THAT IN THE PRESENT CASE THE LD.CIT(A) HAS GRANTED RELIEF TO THE ASSESS EE FROM THE PROVISIONS OF SECTION 40(A)(IA) OF THE I.T ACT 1961 ON THE GROUND THAT THE AMOUNTS INV OLVED WERE PAID AND NOT PAYABLE AS ON THE CLOSE OF THE YEAR BY FOLLOWING THE DECISION OF THE SPECIAL BENCH OF VISAKHAPATNAM OF THE ITAT IN THE CASE OF MERILYN SHIPPING & TRANSPORTS V S. ACIT IN ITA NO.477/VIZ/2008 VIDE ORDER DATED 29/03/2012 REPORTED IN (2012) 16 ITR 1 (TRIBUNAL). IT TRANSPIRES THAT THE ABOVE DECISION OF THE SPECIAL BENCH, ITAT VISAKAHAPATNAM HAS BEEN SET ASIDE BY THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT. IN THIS CONNEC TION, THE ASSESSEE HAS FILED AN APPLICATION UNDER RULE 27 OF THE APPELLATE TRIBUNAL RULES 1963. THE ASSESSEE HAS CONTENDED THAT THE ASSESSEE HAS TAKEN SPECIFIC GROUNDS BEFORE THE LD.C IT(A) THAT THE ASSESSEE WAS MERELY A SELLER OF GOODS AND NOT A WORKS CONTRACTOR TO INVITE THE PROVISIONS OF TAX DEDUCTION AT SOURCE. WE ITA NO. 1688/KOL/2012-C-AM ACIT,CIR-51, KOL VS. SHR I TAPAN SAHA 3 FIND THAT BEFORE THE LD.CIT(A) THE ASSESSEES FURT HER SUBMISSION AS NOTED IN PAGE 3 OF THE LD. CIT(A)S ORDER WAS AS UNDER:- REGARDING THE NATURE OF BUSINESS CARRIED ON BY TH E ASSESSEE-APPELLANT THERE HAS BEEN A BASIC MISCONCEPTION ON THE PART OF THE ASSESSING OFFICER. THE ASSESSEE IS A MERE TRADER SELLING PRINTING MATERIAL S FOR WHICH HE DULY CHARGED LAWFUL VALUE ADDED TAX ON THE SALE FIGURES. THE ASS ESSEE HAS NEVER BEEN A CONTRACTOR AND NO RECEIPTS ARE CONTACT RECEIPTS. N O RAW MATERIALS ARE SUPPLIED BY THE PARTIES TO WHOM SALES WERE MADE. THE RAW MAT ERIALS ARE ALWAYS PROCURED FROM THE OPEN MARKETS AND NEVER FROM THE PARTIES TO WHOM SUPPLIES ARE MADE. THUS THE ASSESSEES PERFORMANCE DOES NOT CONSTITUTE WORK AS DEFINED IN CLAUSE (IV) SUB-CLAUSE ( C) OF THE EXPLANATION OF SECTION 194C OF THE ACT. 5. WE FIND THAT THE ABOVE ISSUE RAISED BY THE ASSES SEE HAS NOT BEEN ADJUDICATED BY THE LD.CIT(A). THOUGH THE LD.CIT(A) HAS GRANTED RELIEF TO THE ASSESSEE ON A DIFFERENT ASPECT. THE ABOVE ASPECT ON WHICH THE LD.CIT(A) HAS GRANTED RE LIEF IS NO LONGER SUSTAINABLE IN VIEW OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT. WE AGREE WITH THE LD. COUNSEL OF THE ASSESSEE THAT THE ASSESSEE IS AGGRIEVED INASMUCH AS THE PLEA RAISED IN THE APPLICATION FILED UNDER RULE 27 OF THE APPELATE TRIBUNAL RULES 1963, WHICH WAS RAISED BEFORE THE LD.CIT(A) HAS NOT BEEN ADJUDICATED BY THE LD.CIT(A). IN THIS VIEW OF THE MATTER, WE ARE OF THE CONSIDERED OPINION THAT THE ISSUE NEEDS TO BE SET ASIDE TO THE FILE OF THE CIT(A) TO ENABLE HIM AND ADJUDICATE THIS ASPECT. ACCORDINGLY, WE SET ASIDE T HE ISSUE TO THE FILE OF THE LD.CIT(A). THE LD.CIT(A) IS DIRECTED TO CONSIDER THE ISSUE AFRESH AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALL OWED FOR STATISTICAL PURPOSE AS STATED ABOVE. / - ORDER PRONOUNCED IN THE OPEN COURT ON 27/10/2014 SD/- SD/- [ , ] [ , ] [ MAHAVIR SINGH, JUDICIAL MEMBER ] [ SHAMIM YAHYA, ACCOUNTANT MEMBER ( - ) DATED :27 /10/2014 ITA NO. 1688/KOL/2012-C-AM ACIT,CIR-51, KOL VS. SHR I TAPAN SAHA 4 ** PRADIP SPS , &2 32 / COPY OF THE ORDER FORWARDED TO: 1. . % / THE APPELLANT : ACIT, CIR-51, 2 ND FL, BLOCK DS 2 & 3, MANICKTALA CIVIC CENTRE, UTTARAPAN, KOL-54. 2 &'% / THE RESPONDENT- SHRI TAPAN SAHA, HB-194, SEC-II I, SALT LAKE, KOL-106. 3. 5. / THE CIT, 4. ( )/ THE CIT(A) & / DR, KOLKATA BENCH 6.GUARD FILE . '2 & / TRUE COPY, / BY ORDER, / ASSTT REGIST RAR