M.L. Agarwala & Others (HUF), Kolkata V. DCIT, Circle - 44, Kolkata

ITA 2449/KOL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7768 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 24-06-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 22-11-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDER JCITSRDR
• Assessee Lawyers: SAUMITRA CHOUDHURY
• Keywords: TDS; Rule 8D
• Section: 143(3); 14A; 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.2449/KOL/2018 ASSESSMENT YEAR:2012-13 M.L.AGARWALA & OTHERS (HUF) 67/45B, STRAND ROAD, KOLKATA-700001 [ PAN NO.AACHM 7252 A ] / V/S . DCIT,CRICLE-44, 3, GOVT. PLACE (WEST), KOLKATA-700001 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI SAUMITRA CHOUDHURY, ADVOCATE /BY RESPONDENT SHRI SANKAR HALDER, JCIT-SR-DR /DATE OF HEARING 24-06-2019 /DATE OF PRONOUNCEMENT 24-07-2019 /O R D E R THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2012-13 , ARISES AGAINST THE COMMISSIONER OF INCOME-TAX (APPEALS)-13, KOLKATAS ORDER DATED 30.08.2018 PASSED IN CASE NO. 02/CIT(A)-13/CIR-44/KOL/2015-16, INVOLVING PROCEEDINGS U/S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE A CT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEES FIRST SUBSTANTIVE GRIEVANCE CHALL ENGES BOTH THE LOWER AUTHORITIES ACTION DISALLOWING 20% OF TWIN HEAD(S) OF EXPENDIT URES THAT GOODS, LABOUR & FREIGHT CHARGES TO THE TUNE OF 9,46,720/- AND MOTOR CAR, EXPENSES ALONGWITH DEPREC IATION, TRAVELLING AND ENTERTAINMENT HEAD(S) OF 2,45,558/-; COMING TO 1,89,344/- AND 49,112/-; RESPECTIVELY ON ESTIMATION BASIS. SUFFICE TO SAY, I FIND THAT NEITHER THE LOWER AUTHORITIES HAVE DRAWN ANY COMPARATIVE CHART OF THE VERY HEAD(S) IN PRECEDING AND SUCCEEDING ASSESSMENT YEARS NOR THE ASSESSEE HAS PR OVED THE CLAIMS TO HAVE INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF ITS BUSIN ESS IN SUGAR TRADING. I THEREFORE CONCLUDE THAT A LUMP SUM DISALLOWANCE @ 10% THAN 20 % MADE BY THE LOWER AUTHORITIES WOULD MEET ENDS OF JUSTICE WITH A RIDER THAT THE SAME SHALL NOT BE TREATED IN ITA NO.2449/KOL/2018 A.Y. 2012-13 M.L. AGARWALA & OTHERS (HUF) VS. DCIT, CIR-44, KOL. PAGE 2 ANY OTHER PROCEEDING. THE ASSESSEE GETS PART RELIEF TO THE EXTENT OF QUA BOTH THESE HEAD(S) ACCORDINGLY. 3. MR. CHOUDHURY DOES NOT PRESS FOR SECOND SUBSTANT IVE GRIEVANCE SEC. 14A R.W.S RULE 8D DISALLOWANCE OF 16,617/-. THE SAME IS ACCORDINGLY DISMISSED AS NOT PRESSED. 4. LASTLY COMES THE ASSESSEES LABOUR CHARGES OF 189,466/- PAID IN CASH TO M/S BHAGWATI SSK LTD. DISALLOWED IN THE LOWER APPELLATE PROCEEDINGS BY WAY OF THE CIT(A)S ENHANCEMENT. LEARNED DEPARTMENTAL REPRESEN TATIVE FAILS TO REBUT THE CLINCHING FACT THAT THE CIT(A)S FINDINGS HAVE NOWH ERE BEEN RECORDED ANY ORAL OR WRITTEN CONTRACT BETWEEN ASSESSEE AND ITS PAYEE SO AS TO SEC. 194C TDS DEDUCTION. LEARNED COUNSEL FURTHER STATES THAT ASSESSEES LEDG ER ACCOUNT OF THE CORRESPONDING LABOUR CHARGES NOWHERE INDICATE THE ACTUAL PAYMENT MADE. I HOLD IN THESE FACTS THAT THE CIT(A) HAS ERRED IN DISALLOWING THE IMPUGNED SU M OF 189,466/- IN THESE PECULIAR FACTS AND CIRCUMSTANCES. THE ASSESSING OFFICER IS T HEREFORE DIRECTED TO DELETE THE SAME. 5. THIS ASSESSEES APPEAL IS PARTLY ALLOWED IN ABOV E TERMS. ORDER PRONOUNCED IN OPEN COURT ON 24/07/2019 SD/- (S.S. GODARA) JUDICIA L MEMBER KOLKATA, *DKP/SR.PS - 24/07/2019 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M.L.AGARWALA & OTHERS (HUF) 67/45B, STRA ND RD. KOL-007 2. /RESPONDENT-DCIT, CIR-44, 3, GOVT. PLACE (WEST), KO LKATA-001 3. ' % / CONCERNED CIT 4. % - / CIT (A) 5. & ))' , ' / DR, ITAT, KOLKATA 6. + / GUARD FILE. BY ORDER/ , /TRUE COPY/ ',