M/s Ghosh & Chakraborty Transport, Burdwan V. The ITO, Wd-2(1), Asansol, Asansol

ITA 423/KOL/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1855 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 27-02-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 16-04-2015
• Court: TRIBUNAL
• Assessee Lawyers: S K TULSIYAN

Judgement Text

I.T.A. NO. 423/KOL./2015 ASSESSMENT YEAR: 2010-2011 PAGE 1 OF 8 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA (SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 423/KOL/2015 ASSESSMENT YEAR: 2010-2011 M/S. GHOSH AND CHAKRABORTY TRANPORT,............... .....................APPELLANT VILL. ANANDPUR, P.O. CHURULIA, DISTRICT-BURDWAN-713 368 [PAN: AAEFG 6324 K] -VS.- INCOME TAX OFFICER,................................ ...................................RESPONDENT WARD-2(1), ASANSOL, PARMAR BUILDING, G.T. ROAD (WEST), APCAR GARDEN, ASANSOL-713 304 APPEARANCES BY: SHRI S.K. TULSIYAN, ADVOCATE, FOR THE ASSESSEE SHRI RAJAT KUMAR KUREEL, JCIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : FEBRUARY 27, 2017 DATE OF PRONOUNCING THE ORDER : APRIL 12, 2017 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS), ASANSOL DATED 16.02.2015. 2. THE ISSUE INVOLVED IN GROUND NO. 1 RELATES TO TH E DISALLOWANCE OF RS.29,38,990/- MADE BY THE ASSESSING OFFICER UNDER SECTION 40(A)(IA) AND CONFIRMED BY THE LD. CIT(APPEALS) FOR THE FAILURE O F THE ASSESSEE TO DEDUCT TAX AT SOURCE AS REQUIRED BY THE PROVISIONS OF SECT ION 194C. 3. THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHI P FIRM, WHICH IS CARRYING ON THE BUSINESS AS A TRANSPORT SUB-CONTRAC TOR. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED B Y IT ON 30.03.2011 DECLARING TOTAL INCOME OF RS.41,048/-. IN THE PROFI T & LOSS ACCOUNT FILED ALONG WITH THE SAID RETURN, A SUM OF RS.54,54,582/- WAS DEBITED BY THE ASSESSEE ON ACCOUNT OF TRANSPORT CHARGES. DURING TH E COURSE OF ASSESSMENT PROCEEDINGS, THE CLAIM OF THE ASSESSEE F OR TRANSPORT CHARGES I.T.A. NO. 423/KOL./2015 ASSESSMENT YEAR: 2010-2011 PAGE 2 OF 8 WAS EXAMINED BY THE ASSESSING OFFICER. IN THIS REGA RD, HE FOUND ON PERUSAL OF THE BANK STATEMENT OF THE ASSESSEE WITH PUNJAB & SIND BANK ACCOUNT THAT THERE WERE SEVERAL PAYMENTS MADE TO DI FFERENT PARTIES AND SOME OF SUCH PAYMENTS MADE OTHERWISE THAN CROSSED C HEQUES OR BANK DRAFTS APPARENTLY ON ACCOUNT OF TRANSPORT CHARGES T O DIFFERENT PARTIES WERE IN EXCESS OF RS.20,000/- IN CASE OF SINGLE PAY MENTS AND IN EXCESS OF RS.50,000/- IN CASE OF PAYMENTS DURING THE YEAR. HE ALSO FOUND THAT THE ENTRIES APPEARING THE ASSESSEES BANK ACCOUNT WERE TOTALLY DIFFERENT FROM THE ENTRIES RECORDED IN ASSESSEES LEDGER ACCOUNT. HE, THEREFORE, CONCLUDED THAT THE TRANSACTIONS SHOWN IN THE ASSESS EES LEDGER ACCOUNTS OF TRANSPORTERS WERE FABRICATED IN ORDER TO AVOID T HE DISALLOWANCE UNDER SECTION 40(A)(IA) AND SINCE THE PAYMENTS MADE BY TH E ASSESSEE IN EXCESS OF RS.20,000/- IN CASE OF SINGLE PAYMENTS AND IN EX CESS OF RS.50,000/- IN CASE OF AGGREGATE PAYMENTS FOR A YEAR TO 23 DIFFERE NT PARTIES AMOUNTED TO RS.29,38,990/- FROM WHICH NO TAX AT SOURCE WAS DEDU CTED BY THE ASSESSEE AS REQUIRED UNDER SECTION 194C, HE DISALLOWED THE S AID AMOUNT BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA). 4. THE DISALLOWANCE OF RS.29,38,990/- MADE BY THE A SSESSING OFFICER UNDER SECTION 40(A)(IA) WAS CHALLENGED BY THE ASSES SEE IN THE APPEAL FILED BEFORE THE LD. CIT(APPEALS). DURING THE COURSE OF A PPELLATE PROCEEDINGS BEFORE HIM, THE MATTER WAS REMANDED BY THE LD. CIT( APPEALS) TO THE ASSESSING OFFICER WITH A DIRECTION TO RECORD THE ST ATEMENT OF THE CONCERNED 23 PARTIES SO AS TO FIND OUT THE EXACT AM OUNTS PAID BY THE ASSESSEE TO THEM FROM TIME TO TIME. DURING THE REMA ND PROCEEDINGS, THE ASSESSEE WAS DIRECTED BY THE ASSESSING OFFICER TO P RODUCE THE SAID 23 PARTIES, BUT THE ASSESSEE COULD PRODUCE ONLY 15 PAR TIES AFTER EXAMINING THE SAID PARTIES, THE REMAND REPORT WAS SUBMITTED B Y THE ASSESSING OFFICER TO THE LD. CIT(APPEALS) GIVING OUTCOME OF T HE EXAMINATION. ONE OF THE OBJECTIONS MAINLY RAISED BY HIM IN HIS REMAND R EPORT WAS THAT THE CLAIM OF THE ASSESSEE OF HAVING MADE THE PAYMENTS I N THE SUMS NOT EXCEEDING RS.20,000/- IN CASE OF SINGLE PAYMENTS AN D RS.50,000/- IN CASE OF AGGREGATE PAYMENTS IN THE YEAR AS SHOWN IN THE C ASH BOOK WAS NOT I.T.A. NO. 423/KOL./2015 ASSESSMENT YEAR: 2010-2011 PAGE 3 OF 8 SUPPORTED BY ANY BILLS OR VOUCHERS. HE ALSO REJECTE D THE STAND OF THE ASSESSEE THAT THE CASH WAS ACTUALLY WITHDRAWN BY TH E TRUCK OWNERS FROM ITS BANK ACCOUNTS FROM TIME TO TIME FOR AND ON ITS BEHALF AS THE BANK WAS SITUATED FAR AWAY FROM ITS VILLAGE AND THE SAME WAS DEPOSITED WITH THE ASSESSEE FROM WHICH THE PAYMENTS WERE MADE TO THEM IN CASH AS SHOWN IN THE CASH BOOK. ACCORDING TO THE ASSESSING OFFICER, THE AMOUNTS WITHDRAWN FROM THE BANK ACCOUNT OF THE ASSESSEE WERE NOT IN R OUND FIGURES AND IT WAS, THEREFORE, NOT POSSIBLE TO ACCEPT THE STAND OF THE ASSESSEE THAT THE SAME REFLECTED WITHDRAWALS MADE BY THE CONCERNED PA RTIERS FOR AND ON BEHALF OF THE ASSESSEE FROM THE BANK ACCOUNT. 5. AFTER CONSIDERING THE REMAND REPORT SUBMITTED BY THE ASSESSING OFFICER AS WELL AS THE COMMENTS AND COUNTER COMMENT S OFFERED ON BEHALF OF THE ASSESSEE AND THE MATERIAL AVAILABLE ON RECOR D, THE LD. CIT(APPEALS) FOUND NO INFIRMITY IN THE DISALLOWANCE MADE BY THE ASSESSING OFFICER UNDER SECTION 40(A)(IA) AND PROCEEDED TO CONFIRM TH E SAME FOR THE FOLLOWING REASONS GIVEN IN PARAGRAPHS NO. 9 & 10 OF HIS IMPUGNED ORDER:- 9. ON A DEEPER SCRUTINY OF EVIDENCE BROUGHT TO REC ORD CONCERNING THE CASE, THE FACTS EMERGING ARE: A. THAT SUMS WERE RECEIVED BY THE ALLEGED TRANSPORT ERS, B. SUM DEBITED AS TRANSPORTATION CHARGES COMES TO N EARLY 88% THEREFORE THE RECEIPTS IN ALL LIKELIHOOD IS TRANSPORTATION CHARGES IN HAND OF THE TRANSPORTERS. C. CONSIDERING THE CHARACTER OF QUANTUM OF WITHDRAW ALS, AS POINTED BY ASSESSING OFFICER, BEING NOT ROUND SUMS, THE SAME IS NOT AN ORDINARILY CASH WITHDRAWAL THROUGH THE TRANSPORTERS. D. SINCE ASSESSEE HAS NOT OBTAINED FORM 15-1 THE PO ST DATED ENTRY IN BOOKS OF ACCOUNTS IS MADE WITH A VIEW TO E SCAPING PROVISIONS OF SECTION 40(A)(IA). E. OUT OF THE 23 PERSONS EXCEPT SHRI DHIREN MAJI, A LL THE OTHER 14 WHO APPEARED BEFORE THE ASSESSING OFFICER STATED THAT THEIR RELATIONSHIP WITH THE APPELLANT IS OF A' TRANSPORTER (SHRI DHIREN MAJI DECLARED HIMSELF TO H AVE RECEIVED SUMS AS TRANSPORTER AND HAS WITHDRAWN CASH FOR THE FIRM). I.T.A. NO. 423/KOL./2015 ASSESSMENT YEAR: 2010-2011 PAGE 4 OF 8 F. THE ANNUAL WORK OF TRANSPORTING CANNOT BE SUCH T HAT ENTRY FOR TRANSPORTATION CHARGES PAYABLE/PAID CANNO T TAKE PLACE ONLY IN THE SECOND PART OF A FY AND RECEIPTS SPREAD OVER THE ENTIRE YEAR. 10. THE ENTIRE ARGUMENTS PUT FORTH BY APPELLANT, TH E CONTENTS OF ASSESSMENT ORDER, REMAND REPORT ETC. HAS BEEN CONSI DERED. SOME OF THE INCONGRUITIES NOTED, BOTH DIRECT AND CIRCUMS TANTIAL ARE LISTED IN PARAGRAPH 9. AFTER CONSIDERING ALL ASPECT S, I HOLD THAT THE PAYMENTS WERE INDEED MADE ON OR BEFORE 30.09.20 09 AND THE SAME ENTERED IN BOOKS OF ACCOUNTS AS HAVING MAD E AFTER 30.09.2009 IS DONE ARTIFICIALLY AIMED AT ESCAPING R IGOURS OF SECTION 40(A)(IA). SINCE FORM 15-1 WAS NOT OBTAINED THE LIABILITY TO DEDUCT TAX AT SOURCE WAS INDEED PRESEN T AND HAVING NOT DONE ONE OF THE AUTOMATIC CONSEQUENCE VIZ. DISA LLOWANCE UNDER SECTION 40(A)(IA) IS ATTRACTED. THE ACT OF AS SESSING OFFICER IN DISALLOWING THE EXPENSE IS HELD TO BE CORRECT. A CCORDINGLY I DISMISS GROUND 1. 6. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE IMPUGNED DISALLOWANCE UNDER SECTION 40(A)(IA) HAS BEEN MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPEALS) MEREL Y ON THE BASIS OF MISMATCH FOUND BY THEM IN THE AMOUNTS PAID TO THE C ONCERNED PARTIES ON ACCOUNT OF TRANSPORT CHARGES AS APPEARING IN THE BO OKS OF ACCOUNT OF THE ASSESSEE AND AS APPEARING IN THE BANK ACCOUNT OF TH E ASSESSEE. HE CONTENDED THAT THE EXPLANATION OFFERED BY THE ASSES SEE IN THIS REGARD WAS THAT THE AMOUNTS APPEARING IN ITS BANK ACCOUNT WERE ACTUALLY THE AMOUNTS WITHDRAWN BY THE CONCERNED PARTIES FOR AND ON BEHAL F OF THE ASSESSEE FROM ITS BANK ACCOUNT AND AFTER THE SAME WERE DEPOS ITED BY THEM WITH THE ASSESSEE, FURTHER PAYMENTS WERE MADE BY THE ASS ESSEE TO THEM WHICH WERE LESS THAN RS.20,000/- IN CASE OF SINGLE PAYMEN TS AND RS.50,000/- IN CASE OF AGGREGATE PAYMENTS FOR THE YEAR. HE SUBMITT ED THAT THIS EXPLANATION OF THE ASSESSEE, HOWEVER, WAS NOT FOUND ACCEPTABLE EITHER BY THE ASSESSING OFFICER OR BY THE LD. CIT(APPEALS) ON THE GROUND THAT THE SAME WAS NOT SUPPORTED BY ANY BILLS/VOUCHERS. HE CO NTENDED THAT THE ASSESSEE HAS DULY MAINTAINED ITS BOOKS OF ACCOUNT A LONG WITH SUPPORTING VOUCHERS REGULARLY BUT NEITHER THE ASSESSING OFFICE R NOR THE LD. CIT(APPEALS) REQUIRED THE ASESSEE AT ANY POINT OF T IME TO PRODUCE THE I.T.A. NO. 423/KOL./2015 ASSESSMENT YEAR: 2010-2011 PAGE 5 OF 8 SAME IN ORDER TO SUPPORT AND SUBSTANTIATE ITS EXPLA NATION. HE ALSO CONTENDED THAT NO ADVERSE MATERIAL HAS BEEN BROUGHT ON RECORD BY THE ASSESSING OFFICER AT ANY STAGE WHILE REJECTING THE EXPLANATION OF THE ASSESSEE AND KEEPING IN VIEW THAT THERE IS NOTHING ADVERSE EVEN IN THE STATEMENT OF THE 15 CONCERNED PARTIES RECORDED BY T HE ASSESSING OFFICER, ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSE E TO SUPPORT AND SUBSTANTIATE ITS EXPLANATION BY PRODUCING THE RELEV ANT VOUCHERS/BILLS FOR THE VERIFICATION BEFORE THE ASSESSING OFFICER. 7. THE LD. D.R., ON THE OTHER HAND, CONTENDED THAT THE ENTRIES APPEARING IN THE BANK STATEMENT OF THE ASSESESE CLE ARLY ESTABLISH THAT BEARER CHEQUES WERE ISSUED BY THE ASSESSEE TO THE C ONCERNED PARTIES TOWARDS PAYMENT OF TRANSPORT CHARGES. HE SUBMITTED THAT THE ENTRIES FOR DIFFERENT AMOUNTS, HOWEVER, WERE MADE BY THE ASSESS EE IN THE BOOKS OF ACCOUNT SO AS TO OVERCOME THE RIGOROUS OF SECTION 4 0(A)(IA) AND AFTER HAVING DETECTED THIS MANIPULATION, THE DISALLOWANCE UNDER SECTION 40(A)(IA) WAS MADE BY THE ASSESSING OFFICER AND CON FIRMED BY THE LD. CIT(APPEALS) ON THE BASIS OF ENTRIES APPEARING IN T HE BANK ACCOUNT OF THE ASSESSEE. 8. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERV ED THAT THE DISALLOWANCE IN QUESTION UNDER SECTION 40(A)(IA) ON ACCOUNT OF T RANSPORT CHARGES HAS BEEN MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPEALS) MAINLY ON THE BASIS OF MISMATCHING ENTRIES AS FOUND RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AND ITS BANK STATE MENT. IN THIS REGARD, THE EXPLANATION OFFERED BY THE ASSESSEE THAT THE EN TRIES APPEARING IN ITS BANK ACCOUNT REPRESENTED WITHDRAWALS MADE BY THE CO NCERNED PARTIES FOR AND ON ITS BEHALF WAS NOT ACCEPTED BY THE AUTHORITI ES BELOW AND THE RELEVANT ENTRIES FOUND RECORDED BY THE ASSESSEE IN ITS BOOKS OF ACCOUNT WERE NOT TREATED RELIABLE BY THEM MAINLY BECAUSE TH E ASSESSEE FAILED TO PRODUCE THE RELEVANT BILLS AND VOUCHERS TO SUPPORT AND SUBSTANTIATE THE SAME. IN THIS REGARD, THE LD. COUNSEL FOR THE ASSES SEE HAS SUBMITTED THAT I.T.A. NO. 423/KOL./2015 ASSESSMENT YEAR: 2010-2011 PAGE 6 OF 8 SUCH BILLS AND VOUCHERS ARE REGULARLY MAINTAINED BY THE ASSESSEE BUT IN THE ABSENCE OF ANY SPECIFIC OPPORTUNITY GIVEN EITHE R BY THE ASSESSING OFFICER OR BY THE LD. CIT(APPEALS), THE SAME COULD NOT BE PRODUCED FOR VERIFICATION. HE HAS CONTENDED THAT THE ASSESSEE IN THE FACTS AND CIRCUMSTANCES OF THE CASE INCLUDING THE FACT THAT N OTHING ADVERSE HAS BEEN BROUGHT ON RECORD BY THE ASSESSING OFFICER TO DOUBT THE RELEVANT ENTRIES APPEARING IN THE BOOKS OF ACCOUNT OF THE AS SESSEE MAY BE GIVEN ONE MORE OPPORTUNITY TO PRODUCE THE RELEVANT BILLS AND VOUCHERS BEFORE THE ASSESSING OFFICER IN ORDER TO SUPPORT AND SUBST ANTIATE ITS CASE. I FIND MERIT IN THIS CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. ACCORDINGLY, THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) ON THIS ISSUE IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTER GIVING ONE MORE OPPORTUNITY TO TH E ASSESSEE TO PRODUCE THE RELEVANT DOCUMENTARY EVIDENCE IN SUPPORT OF ITS CASE. GROUND NO. 1 IS ACCORDINGLY TREATED AS ALLOWED FOR STATISTICAL PURP OSES. 9. THE ISSUE RAISED IN GROUND NO. 2 RELATES TO THE DISALLOWANCE OF RS.10,17,535/- MADE BY THE ASSESSING OFFICER UNDER SECTION 40(A)(IA) AND CONFIRMED BY THE LD. CIT(APPEALS) FOR THE FAILURE O F THE ASSESSEE IN TERMS OF SECTION 194C(5) OF THE ACT. 10. THE VERIFICATION MADE BY THE ASSESSING OFFICER OF THE TRANSPORT CHARGES CLAIMED BY THE ASSESSEE REVEALED THAT THE AMOUNT OF RS.10,17,535/- PAID TO TWELVE DIFFERENT PARTIES WAS IN EXCESS OF RS.20,000/- IN CASE OF SINGLE PAYMENT AND IN EXCESS OF RS.50,000/- IN CASE OF AGGREGATE PAYMENTS MADE DURING THE YEAR UNDER CO NSIDERATION. SINCE THESE PAYMENTS WERE MADE AFTER 30.09.2009 AND THE P ERMANENT ACCOUNT NUMBERS OF THE PAYEES WERE NOT FURNISHED BY THE ASS ESSEE AS REQUIRED BY SECTION 194C(5), THE ASSESSING OFFICER INVOKED THE PROVISIONS OF SECTION 40(A)(IA) AND MADE A DISALLOWANCE OF RS.10,17,535/- . DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(APPEALS ), IT WAS POINTED OUT BY THE ASSESSEE THAT THE PERMANENT ACCOUNT NUMBERS OF THE CONCERNED TWELVE PARTIES WERE GIVEN IN THE E-TDS RETURN FILE D BY IT AND THE SAME I.T.A. NO. 423/KOL./2015 ASSESSMENT YEAR: 2010-2011 PAGE 7 OF 8 WERE ACCEPTED. THE LD. CIT(APPEALS), HOWEVER, DID N OT ACCEPT THIS STAND OF THE ASSESSEE AND PROCEEDED TO CONFIRM THE DISALLOWA NCE MADE BY THE ASSESSING OFFICER UNDER SECTION 40(A)(IA) FOR THE F OLLOWING REASONS GIVEN IN PARAGRAPH NO. 14 OF THE IMPUGNED ORDER:- 14. THE MATTER IS CONCERNED. THE LAW MANDATES OBTAINING PAN PRIOR TO PAYMENT. THIS IS DUE TO THE FACT THAT LIABILITY TO DEDUCT TAX AT SOURCE ARISES LATES T AT TIME OF PAYMENT. THE PHRASEOLOGY 'AT THE TIME OF CREDIT OF SUCH SUM TO THE ACCOUNT OF THE CONTRACTOR OR AT THE TIME OF PAYMENT THEREOF' FIGURING IN SECTION 194C(1) MAKES CLEAR THE TIME FOR TAX DEDUCTION AT SOURCE. IF TAX IS NOT TO BE DEDUCTED, THEN LATEST PRIOR TO PAYMENT, PAN MUST BE OBTAINED. OBTAINING OF PAN IS THE SANCTION FOR PAYM ENT WITHOUT DEDUCTION OF TAX AT SOURCE. THE EVENTS AFTE R PAYMENT DOES NOT GUIDE DISALLOWANCE UNDER SECTION 40A(IA) INCLUDING THE FURNISHING PAN IN THE TDS RET URN, THE CLAIM NOW MADE BY ASSESSEE. MATTERS CONCERNING TDS RETURN GOVERN DEMAND UNDER SECTION 201(1)/201(1A) A ND NOT DISALLOWANCE UNDER SECTION 40(A)(IA). EVEN IF E -TDS RETURN ON SUMMARY PROCESSING RESULTS IN NOT RAISING DEMAND OF SHORT DEDUCTION OF TAX AT SOURCE, IF A SC RUTINY IS DONE, DEMAND WILL ARISE SINCE THE RECIPIENTS DID NOT FURNISH PAN FOR WHICH THE LATEST POSSIBLE TIME IS T IME OF PAYMENT. THEREFORE THE ACCEPTANCE OF E-TDS RETURN O N SUMMARY PROCESSING, QUOTED BY APPELLANT IS NOT ACCE PTED. THIS IS DUE TO REASONS ALREADY STATED IN THIS PARAG RAPH PLUS THE FACT THAT AS PER PROVISIONS OF SECTION 40( A)(IA), DISALLOWANCE IS MANDATORY IN A CASE WHERE THERE IS DEFAULT. IN OTHER WORDS SECTION 40A(IA) IS ATTRACTE D AUTOMATICALLY ONCE A DEFAULT TAKES PLACE. THE ASSES SING OFFICER HAS BROUGHT OUT ABSENCE OF PAN OR GENERATIO N OF PAYMENT AFTER PAYMENT PROVING THAT IN RESPECT OF SU CH PERSONS PAN DID NOT EXIST. AFTER CONSIDERING ALL AS PECTS, I UPHOLD THE DISALLOWANCE UNDER SECTION 40A(IA) SINCE ASSESSEE WAS LIABILITY TO DEDUCT TAX AT SOURCE ON T HE PAYMENT ON PAN WAS NOT PROVIDED PRIOR TO PAYMENT. ACCORDINGLY GROUND 2 IS DISMISSED. [PARA 14] 11. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES ON THIS ISSUE AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE E-TDS RETURN FILED BY IT WAS RELIED UPON BY THE ASSESSEE BEFORE THE LD. CIT(APPEAL) IN ORDER TO POINT OUT THAT THE PANS OF THE CONCERNED TWELVE PARTIES HAD ALREADY BE EN OBTAINED. HE HAS I.T.A. NO. 423/KOL./2015 ASSESSMENT YEAR: 2010-2011 PAGE 8 OF 8 CONTENDED THAT THE LD. CIT(APPEALS), HOWEVER, PROCE EDED TO DECIDE THE ISSUE AGAINST THE ASSESSEE ON THE BASIS OF WRONG PR ESUMPTION THAT THE SAID PANS WERE OBTAINED BY THE ASSESSEE AT THE TIME OF FILING THE TDS RETURN AND NOT AT THE TIME OF PAYMENT/CREDIT. HE HA S SUBMITTED THAT THE PANS WERE DULY OBTAINED BY THE ASSESSEE AT THE TIME OF CREDIT/PAYMENT OF THE RELEVANT AMOUNTS AND THE SAME THEREAFTER WERE F URNISHED WHILE FILING THE E-TDS RETURN. HE HAS CONTENDED THAT THE CASE OF THE ASSESSEE ON THIS ISSUE IS OPEN FOR VERIFICATION AND IF THE MATTER IS SENT BACK TO THE ASSESSING OFFICER, THE ASSESESE CAN ESTABLISH ITS C ASE ON EVIDENCE. I FIND MERIT IN THIS CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE AND SINCE THE LD. D.R. HAS ALSO NOT RAISED ANY OBJECTION IN THIS REGARD, I RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR DECI DING THE SAME AFRESH AFTER GIVING THE ASSESSEE AN OPPORTUNITY TO PRODUCE THE R ELEVANT DOCUMENTARY EVIDENCE TO SUPPORT AND SUBSTANTIATE ITS CASE. GROU ND NO. 2 IS ACCORDINGLY TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TR EATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 12, 201 7. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 12 TH DAY OF APRIL, 2017 COPIES TO : (1) M/S. GHOSH AND CHAKRABORTY TRANPORT, VILL. ANANDPUR, P.O. CHURULIA, DISTRICT-BURDWAN-713 368 (2) INCOME TAX OFFICER, WARD-2(1), ASANSOL, PARMAR BUILDING, G.T. ROAD (WEST), APCAR GARDEN, ASANSOL-713 304 (3) COMMISSIONER OF INCOME TAX (APPEALS), ASANSOL ; (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.