Laxminarayan Mallick, Cuttack V. ITO, Ward-2(4), Cuttack, Cuttack

ITA 322/CTK/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7608 (ITAT-CUTTACK)
• Duration Of Justice: 2 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-10-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 05-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUVENDU DUTTA
• Assessee Lawyers: AMBICA PRASAD MOHANTY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH, CUTTACK BEFORE SHRI N. S SAINI, ACCOUNTANT MEMBER ITA NO. 322/CTK/2014 ASSESSMENT YEAR : 2009 - 2010 SHRI LAXMINARAYAN MALLICK, C/O. RABI PHARMACEUTICALS, AT: MOHANTY PARA, TULSIPUR, CUTTACK - 8 VS. ITO, WARD 2(4), CUTTACK PAN/GIR NO. AFCPM 7300 F (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI AMBICA PRASAD MOHANTY REVENUE BY : SHRI SUVENDU DUTTA, DR DATE OF HEARING : 05 /10/ 2016 DATE OF PRONOUNCEMENT : 05 /10/ 2016 O R D E R THIS I S AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - CUTTACK, DATED 6.6.2014, FOR THE ASSESSMENT YEAR 2009 - 2010. 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE LD CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.16,00,500/ - MADE BY THE AO U/S.40(A)(IA) OF THE ACT ON ACCOUNT OF NON - DEDUCTION OF TDS UNDER SECTION 194 - I OF THE ACT FOR HIRING CHARGES OF EXCAVATOR PAID DURING THE YEAR BY THE ASSESSEE. 3. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE AO OBSERVED THAT DURING THE YEAR, THE ASSESSEE HAS PAID HIRING CHARGES FOR EXCAVATOR OF RS.16,00,500/ - ON WHICH HE HAS FAILED TO DEDUCT TAX AS 2 ITA NO.322/CTK/2014 ASSESSMENT YEAR :2009 - 2010 PER PROVISIONS OF SECTION 194 - I OF THE ACT AND, THEREFORE, BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT, HE DISALLOWED THE DEDUCTION OF RS.16,00,500/ - CLAIMED BY THE ASSESSEE. ON APPEAL, LD CIT(A) CONFIRMED THE ACTION OF THE AO. 4. BEFORE ME, LD A.R. OF THE ASSESSEE SUBMITTED THAT IN VIEW OF THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. VICTOR SHIPPING SERVICES (P) LTD., (2013) 357 ITR 642(ALL), WHEREIN, IT HAS BEEN HELD THAT FOR DISALLOWING EXPENSES FROM BUSINESS AND PROFESSION ON THE GROUND THAT TAX HAS NOT BEEN DEDUCTED AT SOURCE, THE AMOUNT SHOULD BE PAYABLE AND NOT IT HAS BEEN PAID BY THE END OF THE YEAR AND ARGUED THAT IN THE CASE OF THE ASSESSEE, THERE WAS NO AMOUNT OUTSTANDING AND PAYABLE ON ACCOUNT OF EXCAVATOR HIRING CHARGES AT THE YEAREND BY THE ASSESSEE. THEREFORE , IN VIEW OF THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF VICTOR SHIPPING SERVICES (P) LTD (SUPRA), THE DISALLOWANCE MADE BY THE AO AND CONFIRMED BY THE LD CIT(A) IS NOT SUSTAINABLE. HE FURTHER SUBMITTED THAT THE SLP FILED AGAINST THE JUDGMENT OF HONBLE ALLAHABAD HIGH COURT HAS BEEN DISMISSED BY THE HONBLE SUPREME COURT VIDE JUDGMENT DATED 2.7.2014 IN CC NO.(S) 8068/2014. 5. ON THE OTHER HAND, LD D.R. DID NOT RAISE ANY SERIOUS ARGUMENTS DURING THE COURSE OF HEARING. 6. ` AFTER CONSIDERING THE RIVAL SUBMISSION AND PERUSING THE MATERIAL AVAILABLE ON RECORD, I AM OF THE VIEW THAT AS THERE WAS NO AMOUNT OUTSTANDING AND PAYABLE FOR EXCAVATOR HIRING CHARGES AS AT THE END OF YEAR, NO DISALLOWANCE OF RS.16,00,500/ - U/S.40(A)(IA) OF THE ACT COULD BE MADE IN VIEW OF THE DECI SION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF VICTOR SHIPPING SERVICES (P) LTD (SUPRA), HENCE, I SET ASIDE THE ORDER OF LD CIT(A) AND DELETE THE DISALLOWANCE OF RS.16,00,500/ - MADE BY THE AO U/S.40(A)(IA) AND CONFIRMED BY THE LD CIT(A). 3 ITA NO.322/CTK/2014 ASSESSMENT YEAR :2009 - 2010 7. IN THE RE SULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 05 /10/2016 IN THE PRESENCE OF PARTIES. ( N. S SAINI) A CCOUNTANT MEMBER CUTTACK; DATED 05 /10 /2016 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, ASST.REGISTRAR, ITAT, CUTTACK 1. THE APPELLANT :SHRI LAXMINARAYAN MALLICK, C/O. RABI PHARMACEUTICALS, AT: MOHANTY PARA, TULSIPUR, CUTTACK - 2. THE RESPONDENT. ITO, WARD 2(4), CUTTACK 3. THE CIT(A), CUTTACK 4. CIT , CUTTACK 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//