Sri Sunil Kumar Banik, Kolkata V. Income Tax Officer-Ward-50(1), Kolkata, Kolkata

ITA 2567/KOL/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9523 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 30-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 11-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT KUMR KUREEL JCITSRDR
• Assessee Lawyers: V N PUROHIT
• Section: 142(1); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO.2567/KOL/2013 ASSESSMENT YEAR:2009-10 SRI SUNIL KUMAR BANIK C/O A.KAES & CO. CHARTERED ACCOUNTANTS, 231, KAMALALAYA CENTRE, 156A, LENIN SARANI, KOLKATA-700 013 [ PAN NO.AEHPB 6219 D ] / V/S . ITO WARD-50(1) , UTTARAPAN COMPLEX, KOLKATA-54 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI V.N.PUROHIT, FCA /BY RESPONDENT SHRI RAJAT KUMR KUREEL, JCIT-SR-DR /DATE OF HEARING 02-01-2017 /DATE OF PRONOUNCEMENT 18-01-2017 /O R D E R PER S.S.VISWANETHRA RAVI, JUDICIAL MEMBER:- THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER D ATED 04.09.2013 PASSED BY COMMISSIONER OF INCOME TAX (APPEALS)-XXXII, KOLKATA FOR ASSESSMENT YEAR 2009- 10. 2. ONLY ISSUE IN THIS APPEAL IS TO BE DECIDED IS AS WHETHER THE CIT(A) IS JUSTIFY IN CONFIRMING THE DISALLOWANCE AS MADE BY THE ASSESSIN G OFFICER ON ACCOUNT OF NON- DEDUCTION OF TAX DEDUCTED AT SOURCE (TDS FOR SHORT) U/S 40(A)(IA) OF THE INCOME TAX ACT, 1961 (HEREIN REFERRED TO THE ACT) IN THE FAC TS AND CIRCUMSTANCES OF THE CASE. 3. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS AN IND IVIDUAL ENGAGED IN THE BUSINESS OF TRADING OF WHEAT AND RICE UNDER THE NAME & STYLE M/ S SUNIL KUMAR BANIK. THE ITA NO.2567/KOL/2013 A.Y. 2009-10 SH S.K. BANIK VS. ITO WD-50(1) KOL. PAGE 2 ASSESSEE FILED HIS RETURN DECLARING TOTAL INCOME OF 4,96,521/- ON 28.09.2009 AND SCRUTINY NOTICE U/S. 143(2)/ 142(1) OF THE ACT WERE ISSUED. IN RESPONSE THERETO, ASSESSEE WAS REPRESENTED THROUGH HIS ADVOCATE AND F ILED TAX AUDIT REPORT IN FORM 3CB, PROFIT AND LOSS ACCOUNT, BALANCE SHEET, BANK ACCOUN T DETAILS OF SUNDRY DEBTORS AND CREDITORS AND BANK LOAN STATEMENT. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS AO F OUND THAT ASSESSEE HAD INCURRED EXPENDITURE OF 13,55,509/- ON ACCOUNT OF PAYMENT TOWARDS FREIGHT CHARGES AND IN EXPLANATION FOR NON-DEDUCTION OF TDS ASSESSE E SUBMITTED THAT HE DID NOT OBTAIN TAN. AO WAS OF THE VIEW THAT ASSESSEE SHOULD HAVE D EDUCTED TDS U/S 194C OF THE ACT AND FOR NON-DEDUCTION OF TDS BY INVOKING THE SE C.40(A)(IA) OF THE ACT ADDED 12,20,705/- TO THE INCOME OF ASSESSEE. 5. IN CHALLENGE BEFORE CIT(A) ASSESSEE SUBMITTED TH AT THERE IS NO SUCH PROVISION FOR DEDUCTION OF TDS FROM THE PAYMENT WHICH WERE PA ID TOWARDS FREIGHT CHARGES AND DEDUCTION OF TDS DOES NOT ARISE THAT THE ASSESSEE P RODUCED PAN AS REQUIRED U/S. 194C(6) OF THE ACT. CIT(A) SOUGHT REMAND REPORT FRO M AO RELEVANT TO SUBMISSION AS MADE BY ASSESSEE AND CONSIDERING THE REMAND REPORT REJECTED BOTH SUBMISSIONS AS DISCUSSED ABOVE AND CONFIRMED THE ADDITION MADE BY AO U/S 40(A)(IA) OF THE ACT. 6. BEFORE US LD. AR SUBMITS THAT THERE WAS NO WRITT EN CONTRACT BETWEEN ASSESSEE AND THE TRUCK OWNERS AND WHENEVER THE OCCASION ARIS E ASSESSEE USED TO ENGAGE TRUCKS IN OPEN MARKET AND AS SUCH THE AMOUNT WERE PAID TO THE TRUCK OWNERS AS REFERRED TO PAGE NO.1 OF THE PAPER BOOK AND ARGUED THAT ALL THE PAYMENTS WERE BELOW 50,000/- AND THE ADDITION MADE U/S. 40(A)(IA) DOES NOT ATTRA CT AT ALL. LD. AR ALSO RELIED ON THE DECISION OF HON'BLE HIGH COURT OF CALCUTTA IN THE C ASE OF CIT VS. M/S STUMM INDIA IN ITA NO 127 OF 2009 AND ARGUED THE REVENUE DID NOT B RING ON RECORD ANYTHING TO SHOW EXISTENCE OF CONTRACT BETWEEN ASSESSEE AND THE TRAN SPORT OWNERS. LD. AR ALSO PLACE ON RELIANCE ON THE DECISION OF THIS TRIBUNAL IN THE CA SE OF ACIT VS. M/S BELLS ADVERTISING SYNDICATES IN ITA NO.395/KOL/2013 DATED 10.02.2016 AND ARGUED THAT TRIBUNAL IN BOTH CASE DELETED THE ADDITION MADE THEREON BY RELY ING ON THE DECISION OF HON'BLE ITA NO.2567/KOL/2013 A.Y. 2009-10 SH S.K. BANIK VS. ITO WD-50(1) KOL. PAGE 3 JURISDICTIONAL HIGH COURT OF CALCUTTA IN THE CASE O F M/S STUMM INDIA (SUPRA) AND PRAYED TO ALLOW THE APPEAL AND ALSO ARGUED ALTERNAT IVELY TO REMIT THE ISSUE TO THE FILE OF AO. 7. LD. DR SUBMITS THAT WHATEVER DOCUMENTS PRODUCED BEFORE THIS TRIBUNAL BY WAY OF PAPER BOOK SUFFICIENTLY PROVES THE EXISTENCE OF CONTRACT BETWEEN ASSESSEE AND THE TRUCK OWNERS AND RELIED ON THE ORDERS OF AUTHORITIE S BELOW AND OBJECTED TO THE RESTORATION OF ISSUE TO THE FILE OF AO. 8. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. FROM THE SUBMISSIONS OF LD. AR WE FIND THAT THE LD. AR RAISE D TWO FOLD ARGUMENTS BEFORE US. FIRSTLY, REGARDING NON-EXISTENCE OF ANY CONTRACT BE TWEEN ASSESSEE AND TRUCK OWNERS, SECONDLY, IS AS REGARDING THE PAYMENTS AS REFERRED TO PAGE NO. 1 OF THE PAPER BOOK ARE BELOW 50,000/-. ADMITTEDLY, THE ARGUMENT INVOLVING NON-E XISTENCE OF ANY CONTRACT IS RAISED BY THE ASSESSEE FOR THE FIRST TIME BEFORE US AND SINCE THE ADJUDICATING OF THE SAME REQUIRES INVESTIGATION OF THE FACTS, THE SAME CANNOT ENTERTAIN AT THIS STAGE, HENCE, IT IS REJECTED. REGARDING THE SECOND CONTENTION THA T ALL THE PAYMENTS MADE TO TRUCK OWNERS ARE BELOW 50,000/-, WE FIND THAT THE SAME IS BASED ON DOCUMEN TARY EVIDENCE PLACED IN THE PAPER BOOK AT SL. NO. 1, 2 & 5 CONSIS TING OF PAGES 1 TO 7 AT 26 TO 31 WHICH IS CLAIMED TO HAVE BEEN FILED BEFORE THE AUTH ORITIES BELOW. HOWEVER, SINCE THIS ARGUMENT WAS NOT RAISED SPECIFICALLY BEFORE THE AUT HORITIES BELOW, WE CONSIDER IT APPROPRIATE TO REMIT THE ISSUE BEFORE AO FOR FRESH CONSIDERATION TO EXAMINE ALL THE PAYMENTS MADE TO THE TRUCK OWNERS ARE BELOW 50,000/- OR NOT. THE ASSESSEE IS LIBERTY TO FILE EVIDENCE, IF ANY, RELEVANT TO THE I SSUE BEFORE ASSESSING OFFICER AND AO SHALL DECIDE THIS ISSUE IN ACCORDANCE WITH LAW. THE REFORE, GROUND RAISED BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 9. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 18/01/2017 SD/- SD /- ( ! ) (# $ ! ) (P.M.JAGTAP) (S.S.VISWANETHRA RAVI) ACCOUNTANT MEMBER JUDICIAL MEMBER *DKP-SR.PS ITA NO.2567/KOL/2013 A.Y. 2009-10 SH S.K. BANIK VS. ITO WD-50(1) KOL. PAGE 4 % &' - 18/01/2017 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-SRI SUNIL KR. BANIK, C/O A.KAYES & CO. C HARTERED ACCOUNTANTS 231, KAMA LALAYA CENTRE, 156A, LENIN SARANI, KOLKATA-13 2. /RESPONDENT-ITO WRD-50(1) UTTARAPAN COMPLEX, KOLKAT A-54 3. &&() + / CONCERNED CIT 4. + - / CIT (A) 5. ,-. $$() , () / DR, ITAT, KOLKATA 6. ./0 / GUARD FILE. BY ORD ER/ , /TRUE COPY/ / & (),