Shri Goutam Mukhopadhyay, Kolkata V. Pr.CIT - 8, Kolkata , Kolkata

ITA 2409/KOL/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0755 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 04-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K SRIHARI
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [BEFORE HONBLE SHRI A T VARKEY, JM, & SHRI M.BAL AGANESH, AM] I.T.A NO. 2409 /KOL/2 017 ASSESSMENT YEAR : 2013-1 4 SHRI GOUTAM MUKHOPADHYAY -VS- PCIT-8, KOLKATA [PAN: AFXPM 5821 P ] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI SOUMITRA CHOU DHURY, ADVOCATE FOR THE RESPONDENT : SHRI P.K. SRIHARI, CIT D R DATE OF HEARING : 26.11.2018 DATE OF PRONOUNCEMENT : 30.11.2018 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE O RDER OF THE LEARNED PRINCIPAL COMMISSIONER OF INCOME TAX, CIRCLE-8, KOLKATA [IN S HORT THE LD. CIT] IN MEMO NO. PCIT-8, KOLKATA/U/S.263/2017-18/5207-5210 DATED 28. 09.2017 PASSED U/S 263 OF THE ACT AGAINST THE ORDER PASSED BY THE DCIT, CIRCLE-22 , KOLKATA [IN SHORT THE LD. AO] UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 [I N SHORT THE ACT] DATED 16.12.2015 FOR THE ASSESSMENT YEAR 2013-14. 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS A S TO WHETHER THE LD. CIT WAS JUSTIFIED IN INVOKING REVISIONARY JURISDICTION U/S 263 OF THE ACT IN RESPECT OF PAYMENTS MADE TO 2 ITA NO.2409/KOL/2017 SHRI GOUTAM MUKHOPADHYAY A.YR. 2013-14 2 MAHUA BASU MALLICK IN THE SUM OF RS. 96,000/-, IN T HE FACTS AND CIRCUMSTANCES OF THE CASE. 3. BRIEF FACTS OF THIS ISSUE IS THAT THE ASSESSEE IS AN INDIVIDUAL AND IS A FAMOUS ONCOLOGIST IN THE CITY OF KOLKATA. THE RETURN OF IN COME FOR THE ASSESSMENT YEAR 2013-14 WAS FILED BY THE ASSESSEE ON 29.09.2013 DECLARING T OTAL INCOME OF RS. 2,12,41,280/-. THE ASSESSMENT WAS COMPLETED ACCEPTING THE RETURNED INC OME U/S 143(3) OF THE ACT DATED 16.12.2015 AFTER EXAMINING THE DETAILS OF PROFESSIO NAL FEES, BOOKS OF ACCOUNTS, BILLS AND VOUCHERS AND BANK STATEMENTS WHICH WERE PRODUCED BY THE ASSESSEE IN THE COURSE OF ASSESSMENT PROCEEDINGS. LATER THE LD. ADMINISTRATIV E CIT SOUGHT TO TREAT THE SAID ORDER OF THE LD. AO AS ERRONEOUS IN AS MUCH AS IT IS PREJ UDICIAL TO THE INTERESTS OF THE REVENUE AND ACCORDINGLY INVOKED REVISIONARY JURISDICTION U/ S 263 OF THE ACT STATING THAT THE ASSESSEE HAD PAID AN AMOUNT OF RS. 96,000/- TO MAHU A BASU MALLICK FOR CANCEL AWARENESS PROGRAMME WITHOUT DEDUCTION OF TAX AT SOU RCE U/S 194J OF THE ACT. ACCORDINGLY, IN THE OPINION OF THE LD. CIT, THE SA ME IS TO BE DISALLOWED U/S 40A(IA) OF THE ACT. THE ASSESSEE MADE A LEGAL OBJECTION STATIN G THAT ALL THE DETAILS WERE FURNISHED BEFORE THE LD. AO AT THE TIME OF ASSESSMENT PROCEED INGS TOGETHER WITH BILLS, VOUCHERS, BANK STATEMENTS AND BOOKS OF ACCOUNTS WHICH WERE DU LY EXAMINED BY THE LD. AO BEFORE FRAMING THE ASSESSMENT. THE ASSESSEE ALSO REPLIED B EFORE THE LD. CIT THAT HE HAD PAID RS. 96,000/- TO MAHUA BASU MALLICK RESIDING AT F-4, G.H.E.C.N. ROY ROAD, KOLKATA- 700039 FOR DISPLAYING ARTICLES ON CANCEL AWARENESS AS A WRITER. THE ASSESSEE USED TO DICTATE THE ARTICLE IN ENGLISH AND THE SAME WOULD B E TRANSLATED BY MAHUA BASU MALLICK IN BENGALI. IT WAS PLEADED THAT THIS PAYMENT OF TR ANSLATION CHARGES DOES NOT FALL UNDER THE AMBIT OF PROFESSIONAL FEES WITHIN THE MEANING O F SECTION 194J OF THE ACT AND ACCORDINGLY NO DISALLOWANCE U/S 40A(IA) OF THE ACT IS WARRANTED THEREON. 3 ITA NO.2409/KOL/2017 SHRI GOUTAM MUKHOPADHYAY A.YR. 2013-14 3 4. THE LD. CIT OBSERVED THAT THESE ARTICLES ARE FOR ADVANCING OF ASSESSEES PROFESSION AS EVIDENT FROM THE COPIES OF ARTICLES SUBMITTED BY TH E ASSESSEE. SINCE THE LD. AO FAILED TO MAKE ANY ENQUIRY IN THIS REGARD, THE LD. CIT TREATE D THE ORDER AS ERRONEOUS U/S 263 OF THE ACT TO THIS LIMITED EXTENT OF EXAMINATION OF CHARGE S OF RS. 96,000/- PAID TO MAHUA BASU MALLICK AND SET ASIDE THE ASSESSMENT ORDER. AGGRIEV ED THE ASSESSEE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. IT IS NOT I N DISPUTE THAT THE ASSESSEE HAS MADE PAYMENT OF RS. 96,000/- TO MAHUA BASU MALLICK FOR D ISPLAYING ARTICLES TOWARDS CANCEL AWARENESS PROGRAMME IN BENGALI LANGUAGE PURSUANT TO DICTATIONS GIVEN BY THE ASSESSEE IN ENGLISH. IN EFFECT, THIS IS NOTHING BUT A PAYMEN T MADE FOR TRANSLATION OF ARTICLES FROM ENGLISH TO BENGALI. THIS, IN OUR CONSIDERED OPINION , DOES NOT REQUIRE ANY PROFESSIONAL SKILL, SO AS TO FALL WITHIN THE KEN OF PROVISIONS O F SECTION 194J OF THE ACT. HENCE IN OUR CONSIDERED OPINION, THE PROVISIONS OF 194J OF THE ACT ARE NOT ATTRACTED IN THE FACTS OF THE INSTANT CASE WITH REGARD TO THE SUBJECT MENTION ED PAYMENT OF RS. 96,000/-. WE ALSO FIND THAT THE ASSESSEE HAD PRODUCED THE ENTIRE BILL S, VOUCHERS, BANK STATEMENTS, BOOKS OF ACCOUNTS, DETAILS OF PROFESSIONAL FEES BEFORE THE L D. AO WHICH WERE DULY EXAMINED BY THE LD. AO AND WHICH FACT IS ALSO MENTIONED AT PAGE 2 OF THE ASSESSMENT ORDER. WHILE THIS IS SO, IT CANNOT BE SAID THAT THE LD.AO HAD NO T MADE ANY ENQUIRY REGARDING THIS ISSUE WHILE FRAMING THE ASSESSMENT. ON THE CONTRARY, IT C AN ONLY BE SAID THAT THE LD. AO HAD TAKEN A POSSIBLE VIEW ON THE MATTER AND THE LD. CIT IS ONLY TRYING TO SUBSTITUTE HIS OWN VIEW AGAINST THE VIEW TAKEN ALREADY BY THE LD. AO, BY INVOKING THE REVISIONARY JURISDICTION U/S 263 OF THE ACT, WHICH IN OUR CONSI DERED OPINION, IS NOT PERMISSIBLE AS PER LAW. THIS ISSUE IS NOW WELL SETTLED BY THE VARI OUS HIGH COURTS AND DOES NOT LEAVE ANY AMBIGUITY. ACCORDINGLY, WE HAVE NO HESITATION I N QUASHING THE REVISION PROCEEDINGS 4 ITA NO.2409/KOL/2017 SHRI GOUTAM MUKHOPADHYAY A.YR. 2013-14 4 INITIATED U/S 263 OF THE ACT BY THE LD. CIT. ACCORD INGLY, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON 30.11.2 018 SD/- SD/- [A T VARKEY] [ M.BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 30.11.2018 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. SHRI GAUTAM MUKHOPADHYAY, FLAT NO. 6A, TOWER-I, SOUTH CITY, 375, PRINCE ANWAR SHAH ROAD, KOLKATA-700068. 2. PCIT-8, KOLKATA, 54/1, RAFI AHMED KIDWAI ROAD, K OLKATA-700016 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES