A.C.I.T.-Circle-51, Kol, Kolkata V. M/s Maa Engineering, North 24 Parganas

ITA 2442/KOL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4740 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 21-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 09-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT KUMAR KUREEL JCITSRDR
• Assessee Lawyers: S M SURANA
• Keywords: Non-deduction of tax
• Section: 194C; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 2442 / KOL / 2013 & C.O.141/KOL/2013 (A/O ITA NO. 2442/KOL/2013) ASSESSMENT YEAR :2008-09 ACIT, CIRCLE-51, BLOCK- DS-2 & 3, MANIKTALA CIVIC CENTRE, UTTARAPAN COMPLEX, KOLKATA-700 054 M/S MAA ENGINEERING, 37,BT ROAD, P.O.SUKHCHAR, 24- PARGANSS (NORTH) V/S . V/S . M/S MAA ENGINEERING, 37, B.T. ROAD, SUCKCHAR, 24-PARGAN(N) PIN-700 115 [ PAN NO.AAIFM 7800L ] ACIT, CIRCLE-51, BLOCK- DS-2&3, MANIKTALA CIVIC CENTRE, UTTARAPAN COMPLEX, KOLKATA-54 /APPELLANT/CROSS OBJECTOR .. / RESPONDENT /BY REVENUE SHRI RAJAT KUMAR KUREEL, JCIT-SR-DR /BY ASSESSEE SHRI S.M.SURANA, ADVOCATE /DATE OF HEARING 21-07-2016 ! /DATE OF PRONOUNCEMENT 12-08-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL IS PREFERRED BY REVENUE AGAINST THE OR DER OF COMMISSIONER OF INCOME TAX (APPEALS)-XXXII, KOLKATA IN APPEAL NO .235/XXXII/10-11/CIR- 51/KOL DATED 22.07.2013 FOR THE ASSESSMENT YEAR 200 8-09 AND SAME IS BEING DISPOSED OF ALONG WITH THE CROSS OBJECTION (CO) FIL ED BY ASSESSEE BEING CO NO.141/KOL/2013. ASSESSMENT WAS FRAMED BY DCIT, CIR CLE-51, KOLKATA U/S ITA NO.2442 & CO 141/KOL/2013 A.Y. 2008-09 ACIT CIR-51 KOL. VS. M/S MAA ENGINEERING PAGE 2 147/143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 31.12.2010. FIRST WE TAKE UP REVENUES APPEAL IN ITA NO.2442/KO L/2013. 2. REVENUE HAS RAISED PER ITS APPEAL AS UNDER:- 1) ON THE FACTS & CIRCUMSTANCES OF THE CASE, WHETH ER, LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION MADE BY THE AO U S 40(A)(IA) ON LABOUR CHARGES FOR NON DEDUCTION OF TDS U/S. 194C BY RELYI NG ON THE SUBMISSION GIVEN BY THE ASSESSEE BEFORE HIM WITHOUT PROVIDING ANY OPPORTUNITY THE AO AS REQUIRED UNDER THE PROVISIONS OF RULE 46A OF IT RUL ES, 1962. 2) ON THE FACTS & CIRCUMSTANCES OF THE CASE, WHETHE R, LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION MADE BY THE AO ON SALARY B Y RELYING ON SUBMISSION GIVEN BY THE ASSESSEE BEFORE HIM WITHOUT PROVIDING ANY OPPORTUNITY THE AO A REQUIRED UNDER THE PROVISIONS OF RULE 46A OF IT RUL ES, 1962. SRI S.M.SURANA, LD. AUTHORIZED REPRESENTATIVE APPEA RED ON BEHALF OF ASSESSEE AND SHRI RAJAT KUMAR KUREEL, LD. DEPARTMEN TAL REPRESENTATIVE APPEARED ON BEHALF OF REVENUE. 3. FIRST ISSUE RAISED BY REVENUE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY ASSESSING OFFICER U/S . 40(A)(IA) OF THE ACT ON ACCOUNT OF LABOUR CHARGES FOR NON-DEDUCTION OF TAX DEDUCTED AT SOURCE (TDS FOR SHORT) U/S 194C OF THE ACT ON ACCOUNT OF ACCEP TING THE FRESH EVIDENCE FOLLOWING THE PROVISION OF RULE 46A OF THE INCOME T AX RULES, 1962 (THE RULE FOR SHORT). 4. BRIEF FACTS AS HAVING BROUGHT ON RECORD IS THAT ASSESSEE, PARTNERSHIP FIRM, ENGAGED IN THE CONSTRUCTION BUSINESS HAS FILE D ITS RETURN ON 15.10.2008 DECLARING TOTAL INCOME OF 7,22,740/-. THEREAFTER NOTICE WAS ISSUED U/S. 148 O F THE ACT FOR FILING FRESH RETURN OF INCOME TAX. IN C OMPLIANCE WITH THE NOTICE, ASSESSEE SUBMITTED THAT RETURNED FILED ON 15.10.200 8 SHOULD BE TREATED AS FILED U/S. 148 OF THE ACT. THE ASSESSEE FOR THE YEA R UNDER CONSIDERATION HAS CLAIMED WAGE EXPENSE FOR AN AMOUNT OF 60,99,600/-. THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS, OBSERVED THAT SUC H EXPENSES ARE LIABLE FOR TDS U/S. 194C OF THE ACT BUT ASSESSEE HAS DEFAU LTED IN DEDUCTING THE TDS ITA NO.2442 & CO 141/KOL/2013 A.Y. 2008-09 ACIT CIR-51 KOL. VS. M/S MAA ENGINEERING PAGE 3 ON THE AFORESAID AMOUNT. ACCORDINGLY, AO HAS DISALL OWED THE AFORESAID EXPENSE U/S. 40(A)(IA) OF THE ACT AND ADDED TO THE TOTAL INCOME OF ASSESSEE. 5. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A) WHO DELETED THE ADDITION AFTER CONSIDERING THE SUBMISSI ON OF ASSESSEE. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) REVENUE IS IN APPEAL BEFORE US. 6. BEFORE US LD.DR SUBMITTED THAT LD. CIT(A) HAS GR ANTED RELIEF TO ASSESSEE ON THE BASIS OF FRESH EVIDENCE PRODUCED BE FORE HIM I.E. WAGES REGISTER. THE FRESH EVIDENCES WERE ADMITTED WITHOUT TAKING REMAND REPORT FROM THE AO IN TERMS OF PROVISION OF RULE 46A OF INCOME TAX RULES 1962 AND HE LEFT THE ISSUE TO THE DISCRETIONARY OF THE BENCH. IN REB UTTAL, LD. AR SUBMITTED THAT NO FRESH EVIDENCE WERE SUBMITTED DURING THE APPELLA TE STAGE AND HE RELIED ON THE ORDER OF LD. CIT(A). 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AT THE OUTSET WE FIND THAT AO IN HIS ASSESSMENT ORDER HAS ACCEPTED THAT WAGE REGISTER WHICH WAS PRODUCED FOR THE PURPOSE OF VERIFICATION. FROM THE OWN RECORDING BY AO ABOUT TH E DETAILS SUBMITTED IN SUPPORT OF WAGE EXPENSES, WE DO NOT FIND THE RELIEF WAS GRANTED BY LD. CIT(A) ON THE BASIS OF FRESH EVIDENCE AND THE RELEVANT POR TION OF ASSESSMENT ORDER IS REPRODUCED BELOW FOR THE SAKE OF CLARIFICATION:- IT IS SEEN FROM THE WAGES REGISTER THAT THE PAYMEN T WAS MADE TO EACH LABOURER AFTER PUTTING SIGNATURE. THE AR FOR THE AS SESSEE CLAIMED THAT THEY ARE REGULAR LABOURER ON DAILY PAYMENT BASIS EM PLOYED BY THE ASSESSEE AND NO CONTRACTOR INVOLVED IN THIS RESPECT . AS SUCH WE FIND THAT NO FRESH EVIDENCE WAS SUBMITTE D WHILE APPELLATE STAGE AND ACCORDINGLY, THERE IS NO VIOLATION OF RULE 46A OF IT RULES. IN THIS VIEW OF THE MATTER, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF LD. CIT(A). WE UPHOLD ACCORDINGLY. THIS GROUND OF REVENUE IS DI SMISSED. ITA NO.2442 & CO 141/KOL/2013 A.Y. 2008-09 ACIT CIR-51 KOL. VS. M/S MAA ENGINEERING PAGE 4 8. COMING TO NEXT ISSUE RAISED BY REVENUE IS THAT LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY AO ON ACCOUNT OF SAL ARY EXPENSE ON THE BASIS OF FRESH EVIDENCE WHICH WERE ADMITTED IN CONTRAVENT ION OF THE PROVISION OF RULE 46A OF THE IT RULES. 9. AT THE OUTSET, IT WAS OBSERVED THAT AO HAS DISAL LOWED THE ENTIRE SALARY EXPENSE FOR AN AMOUNT OF 10,25,475/- ON THE GROUND THAT NO DOCUMENTARY EVIDENCE IN SUPPORT OF SUCH SALARY EXPENSE WAS PROD UCED AT THE TIME OF ASSESSMENT PROCEEDINGS FOR THE PURPOSE OF VERIFICAT ION. HOWEVER, LD. CIT(A) DELETED THE ADDITION MADE BY AO BY PUTTING RELIANCE ON THE COMPARATIVE STATEMENT FOR THE PAYMENT OF SALARY SUBMITTED BY AS SESSEE. THIS COMPARATIVE STATEMENT IS COMPRISED OF SALARY FOR THE SEVERAL YE ARS AND THEREFORE, THE DISALLOWANCE MADE BY AO WAS DELETED BY HIM. FROM TH E OBSERVATION OF LD. CIT(A), WE DO NOT FIND THAT ANY FRESH EVIDENCE WAS SUBMITTED AT THE APPELLATE STAGE. WE FIND THAT NO NEW FRESH EVIDENCE WAS PRODU CED BEFORE LD. CIT(A). IN VIEW OF ABOVE, WE ARE INCLINED NOT TO INTERFERE IN THE ORDER OF LD. CIT(A). HENCE, WE UPHOLD THE SAME. THIS GROUND OF REVENUES APPEAL IS DISMISSED. COMING TO ASSESSEES CO NO.141/KOL/2013 10. IN THIS CO, THE ASSESSEE HAS CHALLENGED THE REA SSESSMENT PROCEEDINGS UNDER SECTION 147 OF THE ACT. HOWEVER WE HAVE ADJUD ICATED THE REVENUE APPEAL IN FAVOUR OF THE ASSESSEE. THEREFORE WE ARE INCLINED NOT ADJUDICATE THE ISSUE RAISED IN THE CO OF THE ASSESSEE. ACCORDINGLY WE HOLD THE CO RAISED BY THE ASSESSEE AS INFRUCTUOUS AND THE SAME IS ACCORDI NGLY DISMISSED. 11. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED AND T HAT OF ASSESSEES CO IS ALSO DISMISSED AS INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT 12/ 08/2016 SD/- SD/- (#$) () (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, ITA NO.2442 & CO 141/KOL/2013 A.Y. 2008-09 ACIT CIR-51 KOL. VS. M/S MAA ENGINEERING PAGE 5 *DKP &'(- 12 / 08 /201 6 / COPY OF ORDER FORWARDED TO:- 1. /REVENUE -ACIT, CIRCLE-51 BLOCK-DS-2&3, MANICKTALA CIVIC CENTRE, UTTARAPANA C OMPLEX, KOLKATA-700 054 2. /ASSESSEE -M/S MAAA ENGINEERING, 37, B.T.RD., SUCK CHR, 24-PGN(N), PIN-700115 3.'0'12 3 / CONCERNED CIT KOLKATA 4. 3- / CIT (A) KOLKATA 5.678$$12, 12 !, / DR, ITAT, KOLKATA 6.8;<=> / GUARD FILE. BY ORDER/ , /TRUE COPY/ /' 12 !,