M/s AK Mishra Agencies Pvt. Ltd, Cuttack V. DCIT, Cuttack

ITA 289/CTK/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 4258 (ITAT-CUTTACK)
• Duration Of Justice: 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2010
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 10-12-2009
• Court: TRIBUNAL
• Department Lawyers: A S MONDAL
• Assessee Lawyers: KANISKA RATH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE HONBLE SHRI D.K.TYAGI, JUDICIAL MEMBER. /AND HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER . / I.TA.NO . 289/CTK/2009 / ASSESSMENT YEAR 2006 - 07 M/S.A.K.MISHRA AGENCIES PVT.LTD., ROXY LANE, BADAMBADI, CUTTACK AACCA 9932 G - - - VERSUS - . DY.COMMISSIONER OF INCOME - TAX, CIRCLE 2(1 ), CUTTACK. / A PPELLANT RESPONDENT FOR THE APPELLANT : SHRI KANISKA RATH, AR FOR THE RESPONDENT : SHRI A.S.MONDAL, DR / ORDER SHRI K.K.GUPTA, ACCOUNTANT MEMBER . THE ASSESSEE IS IN APPEAL RAISING THE FOLLOWING GROUNDS. 1 ) FOR THAT THE ADDITION OF FREIGHT CHARGES OF RS.9,36,940/ - U/S.40(A) OF CLAUSE(IA) OF I.T. ACT IS ARBITRARY AND UNLAWFUL AND THE SAME IS THEREFORE LIABLE TO BE DELETED BECA USE OF THE FOLLOWING: A) PAYMENT OF FREIGHT CHARGES WAS NOT ON BASIS OF ANY CONTRACT WITH THE TRANSPORTER. DURING THE TRANSIT, THE SELLER WHILE SENDING BOOKS IN THE TRANSPORT AGENCY REMAIN AND CONTINUE TO BE THE OWNER OF GOODS UNTIL THE APPELLANT TAKES DE LIVERY OF THE SAME. 2) FOR THAT IN ANY CASE THE ADDITION U/S.40(A)(IA) SHOULD HAVE BEEN LIMITED TO RS.7,48,336/ - ( RS.9,36,939/ - - RS.1,88,603/ - ) AS THE TRANSPORT CHARGES OF RS.1,88,603/ - REPRESENT SMALL PAYMENTS WHICH DO NOT ATTRACT THE PROVISION OF S EC . 40(A)(IA) OF I.T.ACT. THE LEARNED 1ST APPELLATE AUTHORITY IN THIS REGARD APPRECIATING THE SAME LIMITED THE ADDITION TO RS.7,48,336/ - . HOWEVER THE APPELLATE AUTHORITY WRONGLY INDICATED THE SAME AS CONFIRMED. I.TA.NO . 289/CTK/2009 2 2. THE LEARNED COUNSEL FOR THE ASSESSEE ON T HE FIRST GROUND RAISED BY THE ASSESSEE APPELLANT IS NOT BEING PRESSED LEAVING ONLY THE SECOND GROUND TO BE CONSIDERED BY THE BENCH TO THE EXTENT THAT A TYPOGRAPHICAL ERROR IN THE ORDER OF THE CIT(A) MAY BE DIRECTED TO BE CONSIDERED WHEN AFTER THE HEARING T HE APPELLANT BEFORE HIM CHOSE TO DECIDE THE SAME IS HENCE, CONFIRMED WHICH DISALLOWANCE U/S.40(A)(IA) OF RS.7,43,636 ALONE WAS TO BE CONFIRMED AS DEALT WITH IN HIS ORDER. THUS RS.1,88,603 WAS TO BE DELETED FROM DISALLOWANCE U/S.40(A)(IA). HE POINTED OUT THAT THE RECTIFICATION PETITION U/S.154 WAS FILED BEFORE THE LEARNED ASSESSING OFFICER INDICATING SUCH CLARIFICATION AS A MISTAKE APPARENT FROM RECORD, WHICH RESULTED IN A ORDER GIVING APPEAL EFFECT BY THE ASSESSING OFFICER VIDE HIS ORDER DT.10.3.2010 I.E. , BEFORE THE FILING OF THIS APPEAL BEFORE THE TRIBUNAL. HE POINTED OUT THAT THE DOUBT OF THE ASSESSEE APPELLANT IN THIS APPEAL HAS BEEN CLARIFIED IN THIS ORDER. 3. THE LEARNED DR POINTED OUT THAT IN VIEW OF THE FACT AS ENUMERATED ABOVE BY THE LEARNED COU NSEL FOR THE ASSESSEE, THE APPEAL BECOMES INFRUCTUOUS AND IS FIT TO BE WITHDRAWN BY THE LEARNED COUNSEL. HE HAD NO FURTHER COMMENTS. 4. ON OUR CAREFUL CONSIDERATION TO THE FACTS AND CIRCUMSTANCE, WE ARE INCLINED TO HOLD THAT THE CLARIFICATION SOUGHT BY TH E LEARNED COUNSEL FOR THE ASSESSEE FROM THE TRIBUNAL ON THE DECISION OF THE LEARNED CIT(A) IN NOTING RS.7,48,336 ALONE BE CONFIRMED AS DISALLOWANCE REQUIRES NO FURTHER DELIBERATION IN VIEW OF THE ASSESSING OFFICER TAKING NOTE OF DELETING THE DISALLOWANCE O F RS.1,88,603 ON THE BASIS OF ACCEPTING THE DIRECTION OF THE LEARNED CIT(A). THE ORDERS THUS BECOME SELF I.TA.NO . 289/CTK/2009 3 EXPLANATORY WHICH DO NOT REQUIRE OUR INDULGENCE. THIS GROUND IS ALLOWED AND FIRST GROUND NOT PRESSED IS DISMISSED. 5. IN THE LIGHT OF THE ABOVE, THE AP PEAL OF THE ASSESSEE IS PARTLY ALLOWED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 23.07.2010 SD/ - SD/ - ( ), D.K.TYAGI JUDICIAL MEMBER (K.K.GUPTA), ACCOUNTANT MEMBER. DATE: 23.07.2010 - COPY OF THE ORDER FORWARDED TO : / THE APPELLANT : M/S.A.K.MISHRA AGENCIES PVT.LTD., ROXY LANE, BADAMBADI, CUTTACK / THE RESPONDENT : DY.COMMISSIONER OF INCOME - TAX, CIRCLE 2(1), CUTTACK. THE CIT, THE CIT(A), DR, CUTTACK BENCH GUARD FILE TRUE COPY , BY ORDER , [ ] SENIOR PRIVATE SECRETARY ( /) H.K.PADHEE SENIOR.PRIVATE SECRETARY.