ITO, Ward - 49(2), Kolkata, Kolkata V. Sk. Babu Mani, Kolkata

ITA 1989/KOL/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2962 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 06-09-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHOUDHARY
• Assessee Lawyers: MIHIR BANDYOPADHYAY
• Keywords: Retrospective amendment; Tax effect
• Section: 40A(3); 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B, KOLKATA BEFORE SH. S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 1988 & 1989/KOL/2017 [ASSESSMENT YEAR: 2008-09] I NCOME TAX OFFICER WARD-49(2), KOLKATA. VS SK. BABU MANI MONDAL GANTHI, MISTIPARA, AIRPORT, KOLKATA- 700052. PAN- AEZPM5576Q (APPELLANT) (RESPONDENT) APPELLANT BY SH. ROBIN CHOUDHARY, D . R . RESPONDENT BY SH. MIHIR BANDYOPADHYAY DATE OF HEARING 2 5 .0 7 .201 9 DATE OF PRONOUNCEMENT 21 .08.2019 ORDER PER SH. S.S.GODARA, JUDICIAL MEMBER THESE TWO REVENUES APPEALS FOR ASSESSMENT YEAR 2008-09 ARISE AGAINST THE CIT(A)-15, KOLKATAS SEPARATE ORDERS DATED 30.06.2017 AND 05.07.2017 PASSED IN CASE NO. 156/CIT(A)-15/14-15/WD-49(2)/KOL INVOLVING PROCEEDINGS U/S 263, 147 AND SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT ACT). HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. WE ADVERT TO THE REVENUES FORMER APPEAL ITA NO. 1988/KOL/2017 FIRST OF ALL. IT TRANSPIRES DURING THE COURSE OF HEARING THAT THE CIT(A) HAS GRANTED PART RELIEF TO THE ASSESSEE WHILST DELETING SECTION 40A(3), ADVANCE PAYMENT AND BANK WITHDRAWALS DISALLOWANCES/ADDITIONS INVOLVING FIGURES OF RS. 4,52,785/-, 1,72,500/- AND RS. 29,70,933/-; RESPECTIVELY. NET TAX EFFECT INVOLVED ON ALL THESE THREE ISSUES COMES TO LESS THAN RS. 50 LAKHS AS PRESCRIBED IN THE CBDTS LATEST CIRCULAR NO. DT 08.08.2019 SPECIFYING SUCH THRESHOLD LIMIT TO RS. 50 LAKHS. THE BOARD HAS FURTHER MADE IT CLEAR THAT THE SAME APPLIES WITH RETROSPECTIVE EFFECT ON ALL PENDING CASES. WE THEREFORE DECLINE THE REVENUES INSTANT FORMER APPEAL ITA NO. 1988/KOL/2017 AS INVOLVING LOWER THAN THE PRESCRIBED TAX EFFECT. ITS APPEAL INSTANT MAIN APPEAL FAILS ACCORDINGLY. 3. NEXT COMES THE REVENUES LATTER APPEAL SEEKING TO REVIVE SECTION 40A(3) DISALLOWANCE/ADDITION OF RS. 1,98,95,998/- OUT OF TOTAL CASH PAYMENT OF RS. ITA NO. 701/KOL/2017 [ASSESSMENT YEAR: 2013-14] M/S. ANIL PLANTATION PVT. LTD. PAGE | 2 3,90,81,442/- AS RESTRICTED TO RS. 38,37,089/- AT THE RATE OF 20% IN THE CIT(A)S ORDER UNDER CHALLENGE. THERE IS HARDLY ANY DISPUTE THAT CIT(A) HAS AGREED WITH THE ASSESSING OFFICERS ACTION DISALLOWING THE ASSESSEES CASH PAYMENTS OF RS. 1,91,85,444/- U/S 40A(3) IN PRINCIPLE BUT CHOSE TO RESTRICT THE SAME AT THE RATE OF 20% ONLY BY FURTHER CONCLUDING THAT THE CORRESPONDING AMENDMENT IN THE FINANCE ACT, 2007 PRESCRIBING CENT PERCENT DISALLOWANCE FROM 01.04.2000 ONWARDS COMES IN THE PLAY W.E.F. 01.04.2008 ONWARDS. THE REVENUES GRIEVANCE THEREFORE IS THAT THE CIT(A) HAS ERRED IN LAW IN CONCLUDING THE IMPUGNED AMENDMENT DOES NOT COVER ASSESSMENT YEAR 2008-09 BEFORE US. THE ASSESSEES ARGUMENTS ON THE OTHER HAND STRONGLY SUPPORT THE CIT(A)S FINDINGS RESTRICTING THE IMPUGNED DISALLOWANCE TO THAT AT THE RATE OF 20% ONLY. WE NOTICE IN THIS BACKDROP THAT THE FINANCE ACT, 2007 WAS FOLLOWED BY EXPLANATORY NOTES ON PROVISION RELATING TO DIRECT TAXES IN CIRCULAR NO. 03/2008 DATED 12.03.2008 MAKING IT CLEAR THAT THE ABOVE STATED AMENDMENT APPLIES TO ASSESSMENT YEAR 2008-09 ONWARDS. WE THEREFORE SEE NO REASON TO EXPRESS OUR CONCURRENCE WITH THE CIT(A)S FINDINGS ON THIS LEGAL ISSUE. WE ACCORDINGLY REMAND REVENUES INSTANT SOLE SUBSTANTIVE GRIEVANCE BACK TO THE CIT(A) AS PER LAW WITHIN THREE EFFECTIVE OPPORTUNITIES OF HEARING. THIS LATTER APPEAL ITA 1989/KOL/2017 IS ALLOWED FOR STATISTICAL PURPOSES IN ABOVE TERMS. 4. TO SUM UP, THE REVENUES FORMER APPEAL ITA NO. 1988/KOL/2017 IS DISMISSED FOR INVOLVING LOWER THAN THE PRESCRIBED TAX EFFECT AND LATTER APPEAL ITA NO. 1989/KOL/2017 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21.08.2019. SD/- SD/- (A.L. SAINI) (S.S.GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE:- 21.08.2019 BIDHAN COPY FORWARDED TO: 1. APPELLANT- INCOME TAX OFFICER, WARD-49(2), KOLKATA. 2. RESPONDENT- SK. BABU MANI, MONDAL GANTHI, MISTIPARA, AIRPORT, KOLKATA- 700052. 3. CIT-KOLKATA 4. CIT(APPEALS)-15, KOLKATA (SENT THROUGH MAIL) 5. DR: ITAT-KOLKATA BENCHES (SENT THROUGH MAIL) AR/H.O.O ITAT, KOLKATA