ITO, Ward - 37(3), Kolkata, Kolkata V. Shri Bajrang Bali Sharma, Kolkata

ITA 1707/KOL/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7884 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2014
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 13-12-2011
• Court: TRIBUNAL
• Department Lawyers: D BANERJEE
• Section: 194C; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B , KOLKATA [BEFORE HON BLE SRI MAHAVIR SINGH, JM& HON BLE SRI SHAMIM YAHYA , A M ] ITA NO.1707/KOL/2011 ASSESSMENT YEAR : 2008 - 09 ( A PPELLANT ) (RESPONDENT) I.T.O., W ARD - 37 (3) . - VS - SHRI BAJRANG BALI SHARMA KOLKATA KOLKATA (PAN: AJFPS 6285 D) FOR THE APPELLAN T SHRI D.BANERJEE, JCIT FOR THE RESPONDENT SHRI SUBASH AGARWAL, ADVOCATE DATE OF HEARING : 08 .12 .2014 DATE OF PRONOUN CEMENT : 10.12.2014. ORDER PER SHRI SHAMIM YAHYA, AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF L D. C.I.T.(A) - XXIV, KOLKATA DT. 24.10.2011 AND PERTAIN S TO ASSESSMENT YEAR 2008 - 09 . 2. THE GROUNDS OF APPEAL READ AS UNDER : - 1. LD.CIT(A) HAS ER RED IN LAW AS WELL AS ON FACT IN DELETING THE ADDITION MADE U/S 40(A)(IA) TO THE TUNE OF RS.27,40,080/ - WHICH WERE CONTRACTUAL AND PROVISIONS OF 194C IS APPLICABLE AS PER DECISION OF HON BLE SUPREME COURT IN THE CASE OF M/S.ASSOCIATED CEMENT CO.LTD. [1993 [201 ITR 435]. 3 . IN THIS CASE THE ASSESSMENT WAS FRAMED U/S 144 OF THE ACT ON THE IMPUGNED ISSUE. THE AO MADE ADDITION BY OBSERVING AS UNDER : - ASSESSEE HAD PAID HIRE CHARGES OF RS.36,70,915/ - OUT OF WHICH RS.27,40,080/ - AGAINST WHICH HE HAS NEITHER DE DUCTED TAX U/S 194C NOR PAID THE AMOUNT OBEYING THE SECTION 40A(3). HOWEVER, THE ASSESSEE S PREVIOUS YEAR A/C WAS AUDITED U/S 44AB. THEREFORE, THE AMOUNT OF RS.27,40,080/ - IS BEING ADDED BACK WITH THE TOTAL INCOME OF THE ASSESSEE. 4. BEFORE THE LD. CIT(A) THE ASSESSEE SUBMITTED THAT THERE IS NO VIOLATION OF PROVISIONS OF SECTION 40(A)(IA) OF THE ACT BECAUSE PROVISIONS OF SECTION 194C OF THE ITA.NO.1707/K/2011 SHRI BAJRANG BALI SHARMA A.YR. 2008 - 09 2 ACT ARE NOT APPLICABLE IN THIS CASE BE ING THE REASON THAT NEITHER ANY SINGLE PAYMENT OF FREIGHT EXCEEDI NG RS.20000/ - NOR TOTAL AMOUNT EXCEEDING RS.50000/ - WAS PAID TO A SINGLE TRUCK OWNER DURING THE YEAR. THE LD. CIT(A) REMANDED THESE SUBMISSIONS TO THE AO FOR A REMAND REPORT. IN THE REMAND REPORT THE AO REITERATED THE FACTS AS MENTIONED IN THE ASSESSMENT O RDER. THE LD. CIT(A) OBSERVED THAT THE AO HAS NOT CONSIDERED THE DETAILS OF FREIGHT PAID BY THE ASSESSEE. CONSIDERING THE DETAILS OF FREIGHT SUBMITTED BY THE ASSESSEE THE LD. CIT(A) HELD THAT IT WAS CLEAR THAT THERE WAS NO VIOLATION OF SECTION 40(A)(IA) OF THE ACT. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. THE LD. DR REITERATED THE OBSERVATIONS OF THE AO. THE LD. COUNSEL OF THE ASSESSEE, ON THE OTHER HAND, SUBMITTED THAT THE A SSESSEE HAS DULY SUBMITTED THE SUB - LEDGER A CCOUNT OF THE TRANSPORT HIRE CHARGES PAID IN THE PAPER BOOK FROM PAGES 15 TO 39. HE SUBMITTED THAT A PERUSAL OF THE SAME LIST WILL COGENTLY PROVE THAT NO PAYMENT EXCEEDING RS.50,000/ - WAS MADE TO A SINGLE LORR Y OW NER. IN THESE CIRCUMSTANCE S H E CLAIMED THAT THE PROVISION S OF SECTION 40(A)(IA) OF THE ACT ARE NOT ATTRACTED. HENCE HE SUPPORTED THE ORDER OF THE LD. CIT(A). 6.1. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS. WE FIND THAT PROVISIONS OF SECTION 194C OF THE ACT ARE ATTRACTED ON PAYMENTS MADE TO CONTRACTORS PROVIDED THE AGGREGATE AMOUNT OF SUM CREDITED OR PAID EXCEEDS RS.50,000/ - IN A YEAR. IN THIS CASE AS CLEAR FROM THE DETAILS SUBMITTED BY THE ASSESSEE IN THE PAPER BOOK AS MENTIONED ABOVE THE PAYMENT TO A S INGLE LORRY OWNER DOES NOT EXCEED RS.50,000/ - IN ANY CASE. IN THIS VIEW OF THE MATTER THE LD. CIT(A) IS CORRECT IN HOLDING THAT THE ASSESSEE WAS NOT REQUIRED TO DEDUCT TAX AT SOURCE FROM SUCH PAYMENTS AND HENCE NO DISALLOWANCE U/S 40(A)(IA) OF THE ACT IS R EQUIRED. ACCORDINGLY WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A). ACCORDINGLY WE UPHOLD THE SAME. ITA.NO.1707/K/2011 SHRI BAJRANG BALI SHARMA A.YR. 2008 - 09 3 7. IN THE RESULT THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCE D IN THE COURT ON 1 0/12/2014. SD/ - SD/ - [ MAHAVIR SINGH ] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 10/12/2014. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . SHRI BAJRANG BALI SHARMA, 17, KASHI NATH MULLICK LANE, KOLKATA - 700073. 2 I.T.O., WARD - 37(3 ), KOLKATA. 3 . CIT(A) - XXIV, KOLKATA 4. CIT KOLKATA 5 . CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY, BY ORDER, ASST. REGISTRAR , ITAT, KOLKATA BENCHES