ACIT, Circle -28, Kolkata, Kolkata V. Mangilal Suthar, Kolkata

ITA 41/KOL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1733 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 20-10-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 09-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KALYAN NATH ADDITIONAL
• Assessee Lawyers: MIRAJ D. SHAH
• Section: 133(6); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER] I.T.A. NO. 41/KOL/2014 ASSESSMENT YEAR: 2009-10 A.C.I.T. CIRCLE-28, KOLKATA.. ..APPELLANT AAYAKAR BHAWAN DAKSHIN 2, GARIAHAT ROAD (SOUTH) KOLKATA 700 068 MANGILAL SUTHAR...... .RESPONDENT 2/4, J.K. PAUL ROAD KOLKATA - 700038 [PAN : AKWPS 9255 P] APPEARANCES BY: SHRI MIRAJ D. SHAH, AR, APPEARING ON BEHALF OF THE ASSESSEE. SHRI KALYAN NATH, ADDITIONAL CIT, SR. DR, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : AUGUST 02, 2017 DATE OF PRONOUNCING THE ORDER : AUGUST 09, 2 017 O R D E R PER J. SUDHAKAR REDDY :- THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XIV, KOLKATA ( HEREINAFTER THE LD. CIT(A)), DT. 31/10/2013, PASSED U/S 250 OF THE INC OME TAX ACT, 1961 (THE ACT), FOR THE ASSESSMENT YEAR 2009-10, ON THE FOL LOWING GROUNDS:- 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) WAS RIGHT IN LAW AS WELL AS ON FACTS IN ACCE PTING NEW DOCUMENTS FROM ASSESSEE WITHOUT GIVING ANY OPPORTUN ITY TO AO, IN VIOLATION OF RULE 46A OF THE I. T. RULE. 2 .T.A. NO. 41/KOL/2014 ASSESSMENT YEAR: 2009-10 MANGILAL SUTHAR 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) WAS RIGHT IN LAW AS WELL AS ON FACTS IN ACCE PTING SUBMISSION OF ASSESSEE ON M/S CHALET HOTEL WITHOUT VERIFYING THE FACTS FROM PARTY AND IGNORING THE DATA AVAILABLE IN 26AS OF ASSESSEE. 3 WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) WAS RIGHT IN LAW AS WELL AS ON FACTS IN IGNO RING THE FACT THAT ORAL/ IMPLIED CONTRACT WITH LABOUR SARDAR IS A LSO ELIGIBLE FOR DEDUCTION OF TDS U/ S 194C OF THE ACT. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, M ODIFY, DELETE OR INCLUDE ANY OF THE GROUNDS OF APPEAL. 2. THE ASSESSEE IS AN INDIVIDUAL CARRYING ON PROPRI ETARY BUSINESS OF INTERIOR DECORATIONS. THE ISSUE BEFORE US IS THAT T HE ASSESSING OFFICER FOUND THAT THE TOTAL CONTRACTUAL RECEIPTS OF THE ASSESSEE AS PER THE TDS CERTIFICATE IN FORM NO. 26AS WAS RS.6,76,95,236/-, AND WHEREAS THE ASSESSEE HAS DISCLOSED TURNOVER OF RS.4,77,74,188/-. THE ASSESSE E COULD NOT EXPLAIN THE DISCREPANCY BEFORE THE ASSESSING OFFICER. THE ASSES SING OFFICER TREATED THE SHORT CREDIT OF RS.1,99,21,048/- AS UNDISCLOSED REC EIPT AND APPLIED THE DISCLOSED G.P. RATE OF 13.95% AND MADE AN ADDITION OF RS.27,78,986/-. 2.1. BEFORE THE LD. CIT(A), THE ASSESSEE SUBMITTED THAT IT HAS RECEIVED ADVANCES OF RS.10,00,000/- FROM M/S. AMRI HOSPITALS LTD. AND RS. 3 .T.A. NO. 41/KOL/2014 ASSESSMENT YEAR: 2009-10 MANGILAL SUTHAR 45,00,000/- FROM M/S. JUHI INVESTMENT P. LTD. HE SU BMITTED A RECONCILIATION STATEMENT BEFORE THE LD. CIT(A), WHICH READS AS FOL LOWS:- 2,15,79,071.00 -- CHALET HOTEL SHOWN AS PAYMENT (-) 64,04,860.00 -- ACTUALLY RECEIVED FR OM CHALET HOTEL 1,51,74,211.00 (-) 4,88,983.00 -- TDS DEDUCTED BY CHALET HOTEL 1,46,85,228.00 (+) 55,00,000.00 --ADV. PAID BY M/S JUHI INVEST MENT PVT. LTD. 2,01,85,228.00/- AND M/S AMRI HOSPITALS LIMITE D (-) 2,64,180.00 --TDS ON OUTSTANDING PAYMEN T (EARLIER YEARS) 1,99,21,048.00 2.2. THE LD. CIT(A) CONSIDERED THE RECONCILIATION S TATEMENT AND DELETED THE ADDITION TO THE TUNE OF RS.27,42,133/-. FURTHER ON THE DISALLOWANCE MADE U/S 40(A)(IA) OF THE ACT, THE LD. FIRST APPELL ATE AUTHORITY, HELD THAT THE PAYMENTS TO LABOUR WERE GIVEN TO THE LABOUR SARDAR S, FOR CONVENIENCE AND THE LABOURS WORKED UNDER DIRECT CONTROL, SUPERVISIO N AND SUPERINTENDENCE OF THE ASSESSEE AND, THEREFORE, A LABOUR CONTRACTOR WAS ENGAGED BY THE ASSESSEE AND HENCE NO DEDUCTION WAS MANDATED U/S 19 4C. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US. 3. AFTER HEARING RIVAL SUBMISSIONS, WE FIND THAT TH E ASSESSEE HAD FURNISHED THE RECONCILIATION STATEMENT IN QUESTION BEFORE THE ASSESSING OFFICER. M/S. AMRI HOSPITALS PVT. LTD. HAD UPLOADED A TDS RETURN IN FAVOUR OF THE ASSESSEE IN FORM 26AS AND HENCE ITS CONTENTI ON IN RESPONSE TO NOTICE U/S. 133(6) OF THE ACT, THAT THERE WAS NO TRANSACTI ONS WITH THE ASSESSEE, IS 4 .T.A. NO. 41/KOL/2014 ASSESSMENT YEAR: 2009-10 MANGILAL SUTHAR FACTUALLY INCORRECT. THE ASSESSING OFFICER SHOULD H AVE SUMMONED THIS PARTY AND EXAMINED THE REPLY GIVEN BY THEM, AS THAT WAS C ONTRARY TO THE RETURNS FILED BY THE ASSESSEE. THE LD. DR, COULD NOT POINT OUT AS TO WHAT WAS WRO NG IN THE RECONCILIATION STATEMENT SUBMITTED BY THE ASSESSEE AND ACCEPTED BY THE LD. FIRST APPELLATE AUTHORITY. UNDER THESE CIRCUMSTANCE S, WE UPHOLD THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY AND DISMISS GR OUND NO. 1 AND 2 OF THE REVENUE. 4. COMING TO GROUND NO. 3, WE FIND THAT THE ASSESSE E DID NOT ENGAGE ANY LABOUR CONTRACTOR. THE ASSESSEE BEING AN INTERIOR D ECORATOR, HAS GOT THE JOBS DONE THROUGH CARPENTERS, LABOURERS ETC. AT DIF FERENT SITES. HE NEITHER EMPLOYED CONTRACTORS, NOR SUB-CONTRACTORS. FOR THE PURPOSE OF CONVENIENCE, PAYMENTS WERE MADE TO LABOUR SARDARS . 5. UNDER THESE CIRCUMSTANCES, WE UPHOLD THE FINDING OF THE LD. FIRST APPELLATE AUTHORITY, AT PARA 5.1. OF HIS ORDER AND DISMISS THIS GROUND OF THE REVENUE. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. KOLKATA, THE 9 TH DAY OF AUGUST, 2017. SD/- SD/- [S.S. VISWANETHRA RAVI] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOU NTANT MEMBER DATED : 09.08.2017 {SC SPS} 5 .T.A. NO. 41/KOL/2014 ASSESSMENT YEAR: 2009-10 MANGILAL SUTHAR COPY OF THE ORDER FORWARDED TO: 1. A.C.I.T. CIRCLE-28, KOLKATA AAYAKAR BHAWAN DAKSHIN 2, GARIAHAT ROAD (SOUTH) KOLKATA 700 068 2. MANGILAL SUTHAR 2/4, J.K. PAUL ROAD KOLKATA - 700038 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES