Travel Hub Private Limited, Kolkata V. I.T.O Wd - 12(3),kolkata., Kolkata

ITA 1986/KOL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4156 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 29-09-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 21-06-2013
• Court: TRIBUNAL
• Assessee Lawyers: ASIM CHOUD HURY
• Keywords: Non compliance
• Section: 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C, KO LKATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI M.B ALAGANESH, AM] ITA.1986/KOL/2013 ASSESSMENT YEAR : 2007-08 TRAVEL HUB PRIVATE LIMITED -VERSUS- I.T.O., WARD 12(3) KOLKATA KOLKATA (PAN:AACCT0848G) (APPELLANT ) (RESPONDENT) FOR THE APPELLANT : SHRI ASIM CHOUDHURY, ADVOCATE FOR THE RESPONDENT : SHRI SALLONG YADEN, ADDL. CI T(DR) DATE OF HEARING : 08.12.2016. DATE OF PRONOUNCEMENT : 09.12.2016. ORDER PER SHRI M.BALAGANESH, AM THIS APPEAL OF THE ASSESSEE ARISES OUT OF T HE ORDER OF THE LEARNED CITA IN APPEAL NO.176/CIT(A)-XII/12(3)/11-12 DATED 18.03.2013 AGAI NST THE ORDER OF PENALTY LEVIED FOR THE ASST YEAR 2007-08 U/S 271B OF THE INCOME TA X ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2 THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD. CIT(A) IS JUSTIFIED IN UPHOLDING THE LEVY OF PENALTY U/S 271B OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS ISSUE ARE THAT THE A SSSESSEE IS A MEMBER OF INTERNATIONAL AIR TRANSPORT ASSOCIATION (IATA) AND ACTS AS AN AGENT O F VARIOUS AIRLINES TO SELL THEIR AIR TICKETS AGAINST RECEIPT OF COMMISSION. THE SAID COM MISSION IS PAID BY THE AIRLINES PERIODICALLY AFTER DULY SUBJECTING THE SAME TO DEDU CTION OF TAX AT SOURCE. THE ASSESSEE HAS BEEN CONSISTENTLY CREDITING THE COMMISSION PORT ION AS ITS INCOME IN ITS PROFIT AND LOSS ACCOUNT. THE ASSESSEE CLASSIFIED ITSELF AS A K ACHA ARAHTIYA BROKER WHEREIN ONLY THE COMMISSION INCOME NEEDS TO BE ACCOUNTED AS ITS INCO ME. THE LD. AO HOWEVER CLASSIFIED THE ASSESSEE AS PUCCA ARAHTIYA BROKER AN D CONSTRUED THE ASSESSEE AS A TRADER ITA NO.1986/KOL/2013 TRAVEL HUB PRIVATE LIMITED A.YR.2007-08 2 IN AIR TICKETS AND BASED ON THE FACTS AND FIGURES R ELEVANT FOR THE FINANCIAL YEAR 2007-08 (A.Y.2008-09 WHEREIN THE GROSS RECEIPTS OF SALE OF AIR TICKETS HAD EXCEEDED RS. 40 LAKHS CONCLUDED THAT THE ASSESSEE FOR THIS YEAR UND ER APPEAL WOULD HAVE ALSO ADDED THE SALE OF AIR TICKETS EXCEEDING RS.40 LAKHS AND ACCOR DINGLY CONCLUDED THAT THE ASSESSEE IN THAT CASE WOULD BE LIABLE TO TAX CONTEMPLATED U/ S 44AB OF THE ACT AND LEVIED PENALTY U/S 271B OF THE ACT FOR NOT COMPLYING WITH THE PROVISION OF SECTION 44AB OF THE ACT. THIS ACTION OF THE LD. AO WAS UPHELD BY CI T(A). 4. AGGRIEVED BY THE ORDER OF CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US. THE LD. AR ARGUED THAT FOR THE VERY SAME YEAR UNDER APPEAL THE ASSESSMENT WAS LATER REOPENED U/S 147 OF THE ACT AND THE REASSESSMENT WAS COMPLETED U /S 144 R.W.S. 147 OF THE ACT ON 12.03.2013 WHEREIN THE AO HAD ACCEPTED THE ASSESSEE AS KUCHA ARAHTIYA COMMISSION AGENT AND ASSESSED ONLY THE COMMISSION PORTION AS I TS INCOME. IT IS NOT IN DISPUTE THAT THE TOTAL COMMISSION INCOME DERIVED BY THE ASSESSEE WAS RS.29,33,708/-. HE ARGUED THAT BASED ON THE SUBSEQUENT ORDER FOR THE VERY SAM E YEAR UNDER APPEAL WHEREIN THE ASSESSEE HAS BEEN ACCEPTED TO BE KUCHA ARAHTIYA BRO KER AND BASED ON SUBSEQUENT ORDERS OF THE LD. CIT(A) (I.E. ORDER FOR A.Y.2008-0 9, WHEREIN THE ASSESSEE HAS BEEN CLASSIFIED AS KUCHA ARAHTIYA BROKER) THERE WOULD BE NO LEVY OF PENALTY U/S 271B OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. IN RESPONSE TO THIS, THE LD. DR RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERU SED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE LD. AR HAD PLACED COPY OF THE RE-ASSESSMENT ORDER FOR A.Y.2007-08; COPY OF THE ASSESSMENT ORDER FOR A.Y.2 008-09 AND COPY OF THE LD.CIT(A) ORDER FOR A.Y.2008-09 BEFORE US. WE FIND FROM THESE ORDERS THAT THE AUTHORITIES HAD ACCEPTED THE CLAIM OF THE ASSESSEE TO BE A KUCHA ARAHTIYA BROKER AND NOT A PUCCA ARAHTIYA BROKER. IN ANY CASE THE ASSESS EE IS ONLY ACTING AS AN AIR TICKETING AGENT ENGAGED IN BUYING THE AIR TICKETS ON BEHALF O F ITS CUSTOMERS FOR COMMISSION. HENCE GOING BY THE CLASSIFICATION OF THE ASSESSEE A S KUCHA ARAHTIYA BROKER, ONLY THE COMMISSION INCOME WOULD BE CLASSIFIED AS INCOME OF THE ASSESSEE WHICH IS ADMITTEDLY BELOW THE LIMIT OF RS.40 LAKHS. HENCE WE HOLD THAT THE ASSESSEE IS NOT LIABLE FOR ITA NO.1986/KOL/2013 TRAVEL HUB PRIVATE LIMITED A.YR.2007-08 3 COMPLIANCE WITH THE PROVISION OF SECTION 44AB OF TH E ACT. CONSEQUENTLY THERE CANNOT BE ANY LEVY OF PENALTY U/S 271B OF THE ACT FOR NON COMPLIANCE THEREON. ACCORDINGLY THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 09.12.2016. SD/- SD/- [N.V.VASUDEVAN] [M.BALAGANESH] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 09.12.2016. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1. TRAVEL HUB PRIVATE LIMITED, 2/6, SARAT BOSE ROAD , KOLKATA-700020. 2 THE I.T.O., WARD-12(3), KOLKATA. 3. THE CIT(A)-XII, KOLKATA 4. THE CIT -IV, KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES