Sen Brothers Enterprises Pvt. Ltd., Durgapur V. ACIT, Cir-2, Durgapur, Durgapur

ITA 1960/KOL/2008

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59643 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 21-10-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: CHIRAJIT GOSWAMI
• Keywords: Retrospective amendment
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , ! ! ! ! /AND ' #!' ' #!' ' #!' ' #!' , ) [BEFORE SHRI PRAMOD KUMAR, AM & SHRI MAHAVIR SINGH, JM] !$ !$ !$ !$ / I.T.A NO. 1 96 0/KOL/200 8 #%& '( #%& '( #%& '( #%& '(/ // / ASSESSMENT YEAR : 200 5 -0 6 SEN BROTHERS ENTERPRISES PVT. LTD. VS. ASSISTANT COMMISSIONER OF INCOME-TAX, (PAN: AAGCS 9726 C) CIRCLE-2, DURGAPUR (*+ /APPELLANT ) (,*+/ RESPONDENT ) FOR THE APPELLANT: SHRI CHIRAJIT GOSWAMI FOR THE RESPONDENT: SHRI A. K. SINGH DATE OF HEARING: 19.03.2012 DATE OF PRONOUNCEMENT: 23.03.2012 - / ORDER PER MAHAVIR SINGH, JM ( ' #!' ' #!' ' #!' ' #!', , , , ) THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A), DURGAPUR IN APPEAL NO.133/CIT(A)/DGP/07-08 DATED 30.06.2008. ASSESSMEN T WAS FRAMED BY ACIT, CIRCLE-2, DURGAPUR U/S. 143(3) OF THE INCOME TAX ACT, 1961 (H EREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2006-06 VIDE HIS ORDER DATED 5.12.2 007. 2. AT THE OUTSET, IT IS NOTICED THAT THIS APPEAL IS BARRED BY LIMITATION BY 53 DAYS AND ASSESSEE HAS FILED CONDONATION PETITION STATING THE REASONS THAT DUE TO CERTAIN MISHAP IN THE FAMILY OF THE DIRECTOR, STEPS COULD NOT BE TAKEN TO FILE THE APPE AL AND, THEREFORE, THERE WAS DELAY OF 53 DAYS. LD. SR. DR, HOWEVER, CONCEDED THE POSITION AND STAT ED THAT DELAY CAN BE CONDONED. IN VIEW OF THE ABOVE FACT, WE CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 3. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) CONFIRMING THE ACTION OF ASSESSING OFFICER IN MAKING DISALLOWANCE OF EXPENSES BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT FOR LATE DEPOSIT OF TD S I.E. AS ON 15.02.2006. FOR THIS, REVENUE HAS RAISED FOLLOWING THREE GROUNDS: 1. FOR THAT THE ORDERS OF THE OFFICER BELOW ARE AR BITRARY, MISCONCEIVED, BAD ON MERITS OF FACTS AND IN LAW. 2. FOR THAT THE APPELLANT CLAIMED EXPENDITURE UNDER DIFFERENT HEADS OF EXPENSES SUCH AS FABRICATION & ERECTION EXPENSES, OFFICE EXPENSES ETC. IN COMPUTING THE TOTAL INCOME, THE ASSESSING OFFICER SHOULD NOT HAVE DISAL LOWED THIS CLAIM OF EXPENDITURE BY INVOKING PROVISIONS OF SUB-CLAUSE (IA) OF CLAUSE (A OF SECTION 4 OF THE INCOME TAX ACT, 1961. 3. FOR THAT THE INCOME SO COMPUTED WILL NOT BE APPE LLANT REAL INCOME FOR THAT YEAR CONTRARY TO THE DEFINITION OF INCOME BY SEC. 2(24) OF THE INCOME TAX ACT, 1961. 2 ITA 1960/K/2008 SEN BROTHERS ENTERPRISES PVT. LTD. A.Y. 05-06 4. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. THE BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE THAT THE ASSESSING OFFICER NOTICED FROM AUDIT REPORT FORM NO. 3CD THAT THE ASSESSEE HAS INCURRED CONTRACTUAL PAYMENTS TOWARDS FABRICATION AND ERECTION EXPENSES AND DEDUCTED TDS FROM THE FOL LOWING PARTIES: I) C. R. ENTERPRISE RS. 1,533/- II) KTCO RS. 3,486/- III) POBI CONSTRUCTION RS.10,377/- IV) DEEPAK CONSTRUCTION RS. 3,110/- V) TARUN BANERJEE RS. 1,096/- VI) GEETA CONSTRUCTION RS. 1,562/- VII) BHAIRAB CHATTERJEE RS. 1,406/- VIII) S. BHATTACHARYA RS. 256/- TOTAL: RS.22,926/- BUT TDS WAS NOT DEPOSITED WITHIN THE TIME LIMIT PRE SCRIBED U/S. 201 OF THE ACT. THE SAME WAS DEPOSITED ON 15.02.2006. THE LD. COUNSEL FOR THE A SSESSEE COULD NOT CONTRIBUTE ANYTHING WHICH SUPPORTS HIS CASE. BUT AFTER GOING THROUGH T HE RECORDS, WE FIND THAT THE TAX SO DEDUCTED WAS NOT PAID DURING THE PREVIOUS YEAR OR ON OR BEFO RE THE DUE DATE SPECIFIED IN SECTION 139(1) OF THE ACT AS AUTHORISED IN SECTION 40(A)(IA) OF THE A CT BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01.04.2005. SINCE THE PAYMENT IS MADE AS ON 15.02.2006, AS AUTHORISED BY THE PROVISO TO SECTION 40(A)(IA) OF THE ACT THE DEDUCTI ON WILL BE ALLOWED IN ASSESSMENT YEAR 2006- 07 AND NOT IN THIS YEAR. APPEAL OF ASSESSEE IS DIS MISSED. 5. IN THE RESULT, APPEAL OF ASSESSEE IS DISMISSED. 6. ORDER PRONOUNCED IN OPEN COURT ON 23.03.2012. SD/- SD/- , ' ' ' ' #!' #!' #!' #!' , (PRAMOD KUMAR) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( . . . .) )) ) DATED : 23 RD MARCH, 2012 /0 #%12 #3 JD.(SR.P.S.) - 4 ##5 65'7- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT SEN BROTHERS ENTERPRISES PVT. LTD., ANG ADPUR, DURGAPUR-713 215 2 ,*+ / RESPONDENT ACIT, CIRCLE-2, DURGAPUR 3 . #-% ( )/ THE CIT(A), DURGAPUR 4. #-% / CIT, DURGAPUR 5 . >#? #% / DR, KOLKATA BENCHES, KOLKATA ,5 #/ TRUE COPY, -%/ BY ORDER, ' !2 /ASSTT. REGISTRAR .