M/s. G. G. Enteprise, Durgapur V. ITO, Ward 1(2), Durgapur, Durgapur

ITA 400/KOL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7084 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 13-01-2020
• Assessment Year: 2009-2010
• Appeal Filed On: 27-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DHRUBAJYOTI ROY J
• Keywords: Business expenditure; TDS
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 400 / KOL / 2017 ASSESSMENT YEAR :2009-10 M/S G.G. ENTERPRISE ROOM NO. 13, BLOCK-05, MAHAMAYA BAZAAR, DURGAPUR-713207 [ PAN NO.AAGFG 9915 N ] V/S . INCOME TAX OFFICER, WARD-1(2), AAYAKAR BHAWAN, DURGAPUR- 713216 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI SIDDHARTH AGARWAL, ADVOCATE /BY RESPONDENT SHRI DHRUBAJYOTI ROY, JCIT-DR /DATE OF HEARING 13-01-2020 /DATE OF PRONOUNCEMENT 05-02-2020 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2009-10 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-DURGAPURS ORD ER DATED 30.11.2016 PASSED IN CASE NO.72/CIT(A)/DGP/2016-17, INVOLVING PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEES FORMER SUBSTANTIVE GRIEVANCE SEEK S TO REVERSE BOTH THE LOWER AUTHORITIES ACTION INVOKING SEC.40A(3) DISAL LOWANCE CASH PAYMENT OF BUSINESS EXPENDITURE AMOUNTING TO 3,19,900/-. LEARNED COUNSEL STATES VERY FAIRLY THAT THE ASSESSEE NO MORE WISHES TO PRESS FO R ITS INSTANT FORMER ITA NO.400/KOL/2017 A.Y. 2009-10 M/S G.G. ENTERPRISE VS. ITO WD-1(2), D GP PAGE 2 GRIEVANCE KEEPING IN MIND SMALLNESS OF THE AMOUNT I NVOLVED PROVIDED THE SAME IS NOT TREATED AS A PRECEDENT IN ANY OTHER ASS ESSMENT YEAR. WE ACCEPT THE ASSESSEES FAIR STAND AND AFFIRM THE IMPUGNED D ISALLOWANCE IN ABOVE TERMS. 3. NEXT COMES THE LATTER ISSUE OF DISALLOWANCE OF H IRE CHARGES AMOUNTING TO 60,99,334/- MADE ON ACCOUNT OF NON-DEDUCTION OF TD S IN BOTH THE LOWER AUTHORITIES PROCEEDINGS. THERE IS NO DISPUTE THAT T HIS ASSESSEE HAS PAID THE IMPUGNED HIRE CHARGES WITHOUT DEDUCTING TDS. THE RE VENUES CASE THEREFORE BOTH THE LOWER AUTHORITIES REASONING IS THAT IT OUG HT TO HAVE DEDUCTED TDS AS THE IMPUGNED PAYMENTS BEING CONTRACTUAL / SUB-CONTR ACTUAL IN NATURE. WE DO NOT SEE ANY SUCH ORAL OR WRITTEN EVIDENCES IN THE C ASE FILE SUGGESTING ASSESSEES PAYEES TO HAVE ASSUMED ITS CONTRACTUAL L IABILITY REGARDING ITS TRANSPORTATION WORK. HON'BLE JURISDICTIONAL HIGH CO URTS DECISION IN COMMISSIONER OF INCOME TAX KOLKATA-XVI VS. M/S STUM M INDIA IN ITA NO. 127 OF 2009 DATED 16.08.2010 HOLDS THAT THE IMPUGNED DISALLOWA NCE IN ABSENCE OF SUCH AN AGREEMENT OR CONTRACT BETWEEN THE PARTIES; IS NOT SUSTAINABLE. WE THEREFORE DIRECT THE ASSESSING OFFICER TO DELETE TH E IMPUGNED DISALLOWANCE. NECESSARY COMPUTATION SHALL FOLLOW AS PER LAW. 4. THIS ASSESSEES APPEAL IS PARTLY ALLOWED IN ABOV E TERMS. ORDER PRONOUNCED IN THE OPEN COURT 05/ 02/2020 SD/- SD/- ( &) (( &) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP SR.P.S )- 05 / 02 /20 20 ITA NO.400/KOL/2017 A.Y. 2009-10 M/S G.G. ENTERPRISE VS. ITO WD-1(2), D GP PAGE 3 / COPY OF ORDER FORWARDED TO:- 1 . /APPELLANT-M/S G.G. ENTERPRISE, ROOM NO.13, BLOCK-0 5, MAHAMAYA BAZZAR, DURGAPUR -713207 2 . /RESPONDENT-ITO WARD-1(2), AAYAKAR BHAWAN, DURGAPUR -713216 3. 4 5 / CONCERNED CIT KOLKATA 4. 5- / CIT (A) KOLKATA 5 . 8 ((4, 4, / DR, ITAT, KOLKATA 6. = / GUARD FILE. BY ORDER/ , /TRUE COPY/ 4,