Appeal details
Counselvise Citation
[2019] 118 COUNSELVISE.COM (IT) 3144 (ITAT-KOLKATA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
4 year(s) 4 month(s) 7 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
28-02-2019
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
A
Assessment Year
2010-2011
Appeal Filed On
21-10-2014
Judgement Text
1 ITA NO.1962/KOL/2014 SUBHRA GHOSH DA STIDAR, AY- 2010-11 , A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA ( ) . . , . . ! , ' #$ ) [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI A. T. VARKEY, JM] I.T.A. NO. 1962/KOL/2014 ASSESSMENT YEAR: 2010-11 ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-50, KOLKATA. VS. SMT. SUBHRA GHOSH DASTIDAR (PAN: AKLPD0089M) APPELLANT RESPONDENT DATE OF HEARING 17.01.2019 DATE OF PRONOUNCEMENT 28.02.2019 FOR THE APPELLANT SHRI C. J. SINGH, JCIT, SR. DR FOR THE RESPONDENT SH. S. L. KOCHAR & SH. ANIL KOCH AR, ADVOCATES ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL PREFERRED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A)-XXXII, KOLKATA DATED 25.07.2014 FOR AY 2010-11. 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL OF REV ENUE IS AGAINST THE ACTION OF LD. CIT(A) IN DELETING AN AMOUNT OF RS.2,80,52,691/- BEING CAS H PAYMENT FOR MACHINERY HIRE CHARGES WHICH WAS ADDED BY AO U/S 40A(3) OF THE INCOME-TAX ACT, 1963 (HEREINAFTER REFERRED TO AS THE ACT); WHILE ON THE SAME GROUND THE CASH PAYM ENT OF RS.2,73,882/- WHICH WAS ADDED BY AO U/S 40A(3) OF THE ACT WAS CONFIRMED BY THE LD CIT(A). 3. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE I S AN INDIVIDUAL AND ENGAGED IN THE BUSINESS OF EXECUTING CONSTRUCTION CONTRACTS UNDER THE NAME AND STYLE OF HER PROPRIETARY CONCERN M/S. ASSOCIATED ENGINEERS. ACCORDING TO AO, ON VERIFICATION OF STATEMENT OF MACHINERY HIRE CHARGES AND BANK STATEMENT FILED BY THE LD. AR OF THE ASSESSEE DURING THE COURSE OF HEARING, HE FOUND THAT THE ASSESSEE PAID IN CASH ON ACCOUNT OF HIRE CHARGES OF MACHINERY RS.2,80,52,691/- IN CONTRAVENTION TO SECT ION 194I OF THE ACT AND ACCORDING TO 2 ITA NO.1962/KOL/2014 SUBHRA GHOSH DA STIDAR, AY- 2010-11 AO IT IS IN VIOLATION OF SECTION 40A(3) OF THE ACT. SO, THE AO ADDED THE SAID AMOUNT FOR NON DEDUCTION OF TDS ON HIRE CHARGES PAYMENT U/S. 1 94I OF THE ACT AND DISALLOWED U/S. 40(A)(IA) OF THE ACT. AGGRIEVED, ASSESSEE PREFERRE D AN APPEAL BEFORE THE LD. CIT(A) WHO ALLOWED THE ASSESSEES GROUNDS OF APPEAL. AGGRIEVE D, REVENUE IS BEFORE US. 4. THE LD. DR ASSAILING THE DECISION OF THE LD. CIT (A), SUPPORTED THE ACTION OF THE AO AND WANT US TO REVERSE THE ORDER OF THE LD. CIT(A) AND RESTORE THE ORDER OF THE AO. PER CONTRA, THE LD. AR SUPPORTED THE ACTION OF THE LD. CIT(A) AND DOES NOT WANT US TO INTERFERE WITH THE ORDER OF THE LD. CIT(A). 5. WE HAVE HEARD RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE NOTE THAT THE LD. CIT(A) HAS TAKEN NOTE OF THE FACT THAT THE ENTIRE PAYMENT WAS MADE AT VILLAGE UMLAPER, JAINTIA HILLS, MEGHALAYA W HERE THERE WAS NO BANKING FACILITY. IT WAS BROUGHT TO OUR NOTICE THAT THE SAID VILLAGE ALS O IS NOT ACCESSIBLE BY TRAIN AND DOES NOT HAVE PROPER FACILITIES LIKE SCHOOLS ETC. THE SITE O F CONSTRUCTION WAS AGAIN FURTHER AWAY FROM THE VILLAGE. SO, AS PER RULE 6DD(G) OF INCOME-TAX RULES, 1962 (HEREINAFTER REFERRED TO AS THE RULES) NO DISALLOWANCE U/S. 40A(3) OUGHT TO HAVE BEEN MADE WHERE THE CASH PAYMENTS ARE MADE IN REMOTE VILLAGE WHICH ON THE DATE OF SUCH PA YMENT THERE IS NO SERVICE BY ANY BANK. THE LD. CIT(A) HAS TAKEN NOTE THAT THERE IS NO BAN KS OPERATING IN THE VILLAGE AND THE NEAREST BANK FROM VILLAGE IS 27KMS AWAY. THIS FACT HAS BEEN CORROBORATED BY A CERTIFICATE OF HEADMAN OF MOOSIANG LAMARE (NEW) VILLAGE, ELAKA-RYM BAI, EAST JAINTIA HILLS DISTRICT AND THE LD CIT(A) HAVE SEARCHED THE WEB-SITES OF MAJOR BANKS TO CROSS-CHECK THIS FACT OF NO BANKING FACILITY ON THE DATE OF SUCH PAYMENT. IN T HE AFORESAID FACTS AND CIRCUMSTANCES OF THE CASE AND TAKING NOTE THAT THE PAYMENTS WERE MADE TO SCHEDULE CASTE AND SCHEDULE TRIBE PERSONS FROM THE SCHEDULED AREA WHO ARE EXEMPT FROM TAX ON INCOME EARNED THERE, THE LD. CIT(A) HAS DELETED THE ADDITION, WHICH ON FACTS AS DISCUSSED ABOVE COULD NOT BE CONTROVERTED BY REVENUE, AND WE NOTE THAT THERE IS NO VIOLATION OF RULE 46A AS CONTENTED BY REVENUE IN THE ADDITIONAL GROUNDS OF APPEAL, SINCE LD CIT(A) HAS TAKEN NOTE OF FACTS WHICH ARE AVAILABLE IN THE PUBLIC DOMAIN AND NO NEW EVIDE NCE WERE FURNISHED BEFORE HIM, SO WE CONFIRM THE ACTION OF LD CIT(A). 3 ITA NO.1962/KOL/2014 SUBHRA GHOSH DA STIDAR, AY- 2010-11 6. COMING TO THE CONTENTION OF REVENUE REGARDING TH E PAYMENT OF RS.2,73,882/- WHICH ASSESSEE MADE AND THE AO FOUND THAT ASSESSEE HAD MA DE CERTAIN MACHINERY HIRE CHARGES WERE MADE TO SOME PERSONS AND THE PAYMENTS WERE MAD E IN CASH IN EXCESS OF RS.20,000/- AND THE AO MADE THE DISALLOWANCE U/S. 40A(3) WHICH WE FIND HAS NOT BEEN CONTESTED BY THE ASSESSEE BEFORE THE LD. CIT(A) SO IT WAS DISMISSED. THE REVENUES CASE IS THAT SINCE THE LD. CIT(A) HAS DISMISSED THIS GROUND OF APPEAL OF THE A SSESSEE, ON THE VERY SAME REASONING THE LD CIT(A) OUGHT TO HAVE DISALLOWED RS. 2.80 CR., WH ICH, ACCORDING TO US, IS A CONTENTION BEREFT OF ANY MERITS BECAUSE THE ASSESSEE DID NOT P RESS THIS GROUND BEFORE THE LD. CIT(A), SO HE DISMISSED IT. SO THAT ACTION OF LD. CIT(A) CANN OT COME TO THE AID OF REVENUE TO FIND FAULT WITH THE ACTION OF LD. CIT(A) TO DELETE RS.2.80 CR. AS DISCUSSED ABOVE. SO THE REVENUES CONTENTION IS DEVOID OF MERITS AND, THEREFORE, WE D ISMISS THE GROUND OF APPEAL OF REVENUE. 7. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 28TH FEBR UARY, 2019. SD/- SD/- (P. M. JAGTAP) (ABY. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED : 28TH FEBRUARY, 2019 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT ACIT, CIRCLE-50, KOLKATA. 2 RESPONDENT SMT. SUBHRA GHOSH DASTIDAR, 391, RAB INDRA PALLY, NABAPALLY, BARASAT, 24 PARGANAS (NORTH), PIN-700 12 6.. 3. 4. CIT(A)-XXXII, KOLKATA (SENT THROUGH E-MAIL) CIT- , KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR
