ITO,Ward -56(3), Kolkata, Kolkata V. Gobind Kr. Agarwal, Kolkata

ITA 424/KOL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2515 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2010
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 30-06-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 25-02-2010
• Court: TRIBUNAL
• Department Lawyers: A K PRAMANIK
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: TDS
• Section: 194C

Judgement Text

, A , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA () BEFORE . . . . . . . . , , , , , !' !' !' !' /AND . .. . . .. .! !! !, , , , # [BEFORE HONBLE SRI D. K. TYAGI, JM & HONBLE SRI C. D. RAO , AM] '$ '$ '$ '$ / ITA NO. 424 /KOL/2010 %&' !() %&' !() %&' !() %&' !()/ // / ASSESSMENT YEAR : 2006-07 INCOME-TAX OFFICER, WD-56(3), KOLKATA. VS- GOBI ND KR. AGARWAL ( PA NO.ADAPA 3617 L) (+, / APPELLANT ) (-+,/ RESPONDENT ) +, . / / FOR THE APPELLANT: : / SRI A. K. PRAMANIK -+, . / / FOR THE RESPONDENT : / SHRI MIRAJ D. SHAH 0 / ORDER PER D. K. TYAGI, JM ( . . . . . . . . , , , , ) THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AG AINST THE ORDER OF THE LD. CIT(A), KOLKATA DATED 27.11.2009 FOR THE ASSESSMEN T YEAR 2006-07 ON THE FOLLOWING GROUNDS : 1. THAT THE CIT(A) ERRED IN LAW IN ALLOWING RELIE F OF RS.84,07,830/- U/S. 194C/40(A)(IA) OF THE I. T. ACT, 1961 ON THE BASIS OF FORM NO.15J SEEMED TO HAVE BEEN FILED WITH CIT-XVI/KOLKATA WHO WAS NOT THE JURISDIC TIONAL OFFICER IN CONTRAVENTION TO THE PROVISION OF SECTION 194C(3) READ WITH RULE 29D OF THE I. T. RULES, 1962. 2.THAT THE CIT(A) ERRED IN LAW IN TAKING COGNIZANCE OF FORM NO. 15J FILED BY THE ASSESEE NOT WITH THE COMMISSIONER OF INCOME TAX HAV ING JURISDICTION OVER THE ASSESSEE IN VIOLATION OF 2 ND PROVISO AND 3 RD PROVISO TO SECTION 194C(3)(I) READ WITH RULE 29D O F THE I. T. RULES, 1962. 2. THE AO DISALLOWED PAYMENT OF LORRY HIRE CHARGES OF RS.84,07,830/- TO THE CONTRACTORS/TRUCK OWNERS AS THE ASSESSEE DID NOT DE DUCT TDS AS PER SECTION 194C READ WITH 40A(IA) OF THE I. T. ACT. HE ALSO NOTED THAT ASSESSEE DID NOT DEDUCT TDS ON THE ABOVE PAYMENTS NOR ANY EVIDENCE WAS FILED BEFORE HI M TO INDICATE THAT THE ASSESSEE HAS RECEIVED FORMS 15J FROM THE TRUCK OWNERS AND THAT T HESE DETAILS WERE FILED IN FORM 15J BEFORE THE CIT CONCERNED. IN APPEAL, THE LD. CIT(A ) WHILE GIVING RELIEF TO THE ASSESSEE HAS OBSERVED AS UNDER : I HAVE CAREFULLY CONSIDERED THE ABOVE. THE APPELLA NTS CONTENTION THAT HE HAS OBTAINED FORM 151 FOR NON-DEDUCTION OF TDS FROM THE TRUCK OW NERS AT THE RELEVANT TIME AND THAT HE FILED THE ABOVE DETAILS IN FORM NO. 15J BEFORE T HE COMMISSIONER OF INCOME TAX-XIV, WAS NOT EXAMINED BY THE ASSESSING OFFICER, DURING T HE ASSESSMENT PROCEEDINGS BECAUSE THE APPELLANT COULD NOT FILE THEM. IN VIEW OF THE A BOVE VIDE THIS OFFICE LETTER DATED 21/05/2009, THE A.O. WAS DIRECTED TO EXAMINE THE MA TTER AND FURNISH REMAND REPORT. THE A.O. IN HIS LETTER DATED 07.07.2009 HAS FURNISH ED REMAND REPORT THE RELEVANT PORTION OF WHICH ARE EXTRACTED BELOW : 2 THE NATURE OF THE BUSINESS OF THE ASSESSEE IS TRAN SPORTER. IN COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE HAS NOT FILED C OPIES OF EVIDENCES IN SUPPORT OF FILING FORM NO. 15J & 15I . HOWEVER, THE A/R HAS IN COURSE OF REMAND PROCEEDINGS FILED COPIES OF 15-I & 15J AND A COPY O F CERTIFICATE DATED 27.04.2009 IN COURSE OF ASSESSMENT PROCEEDING IT WAS CONTENDED ON BEHALF OF THE ASSESSEE THAT FORM NO. 15J & 15-1 WERE DULY FILED BEFORE THE AUTHORITY CONCERN BUT THE EVIDENCE OF FILING SUCH PAPERS COULD NOT BE PRODUCE D BEFORE THE LD. A.O, BUT THE A/R COULD PRODUCE COPIES OF 15J & 15-1. IN COURSE OF REMAND PROCEEDING AND AS SUCH THE QUES TION OF DEDUCTING TDS DID NOT ARISE AND HENCE PROVISIONS OF SEC.40(A)(IA) WER E NOT APPLICABLE. I HAVE CAREFULLY CONSIDERED THE ABOVE. I HAVE ALSO PERUSED FORM 15-I , COPY OF FORM 15-J AND THE WRITTEN SUBMISSIONS OF THE APPELLANT. I HAV E ALSO PERUSED PROVISIONS OF SECTION 194C AND 40(A) OF THE ACT. WHAT IS CRUCIAL, IN MY V IEW FOR NOT DEDUCTING TDS ON CONTRACT PAYMENTS/SUB-CONTRACT PAYMENTS, IS THAT TH E PAYER SHOULD OBTAIN FORMS 151 FROM THE PAYEE AT THE RELEVANT TIME AND FURNISH EVI DENCE EITHER BY FURNISHING IN FORM NO. 15J WITH REQUIRED DETAILS BEFORE THE COMMISSIONER O F INCOME TAX OR BY FILING NECESSARY EVIDENCE TO SUBSTANTIATE THE FACT THAT HE HAS RECEI VED FORMS 151 AT THE RELEVANT TIME. IN THE INSTANT CASE THE APPELLANT HAS OBTAIN FROM 1 51 FROM THE TRUCK OWNERS TO WHOM LORRY HIRE CHARGES WERE PAID AND FURNISHED THE REQU ISITE DETAILS IN FORM NO. 15J BEFORE THE ITO WARD-57(1)TDS. IN VIEW OF THE ABOVE THE APP ELLANT HAS COMPLIED WITH THE PROVISION 40(A)(IA)/ 194C OF THE I.T. ACT READ WITH RULE 29D OF THE I.T. RULES, 1962. IN VIEW OF THE ABOVE THERE IS NO JUSTIFICATION FOR THE ASSESSING OFFICER TO DISALLOW THE LORRY HIRE CHA9F RS.84,07,830/-. ACCORDINGLY, HE IS DIRECTED TO DELETE RS.84,07,830/-. 3. AT THE TIME OF HEARING BEFORE US, BOTH THE PARTI ES CONCEDED THAT THE ISSUE ON HAND IS COVERED BY THE ORDER OF THE ITAT, KOLKATA A BE NCH IN THE CASE OF ITO VS. ANURAG KR. AGARWAL, ITA NO. 425/KOL/2010 FOR AY 2006-07 DA TED 8.4.2010, WHEREIN THE TRIBUNAL HAS HELD AS UNDER : 3. WE HAVE CONSIDERED THE ORDERS OF THE AUTHORITIES BELOW, AND THE SUBMISSIONS OF THE LEARNED REPRESENTATIVES OF THE PARTIES. WE CONS IDER IT PRUDENT TO REFER THE RELEVANT PART OF THE ORDER OF THE LEARNED CIT(A) AT PAGES 5 AND 6, WHICH READ AS UNDER : I HAVE CAREFULLY CONSIDERED THE ABOVE. AS CAN BE S EEN FROM THE ABOVE THE APPELLANT HAS CLAIMED THAT HE HAS OBTAINED FORM S 15J IN RESPECT OF THE PAYMENT OF HIRE CHARGES OF RS. 1,57,03,383/- AN D THAT FROM NO. 15J WITH REQUISITE DETAILS WAS FILED BEFORE THE INCOME TAX OFFICER 57(1)(TDS) ON 19.06.2006 . SINCE THIS MATTER WAS NOT EXAMINED AT THE TIME OF ASSESSMENT PROCEEDINGS, VIDE THIS OFFICE LETTER DAT ED 04/09/2009, THE .A.O. WAS DIRECTED TO EXAMINE THE SAME AND FURNISH REMAND REPORT ON THIS MATTER. THE A.O. IN HIS LETTER DATED 06.10.2009 HAS STATED THAT THE APPELLANT HAS FURNISHED FORM NO. 15J BEFORE THE ITO TDS WD-57(1) ON 19.06.2006. I HAVE CAREFULLY CONSIDERED THE ABOVE. I HAVE ALSO PERUSED FORM 15-I, COPY OF FORM 15-J AND THE WRITTEN SUBMISSIONS OF TH E APPELLANT. I HAVE 3 ALSO PERUSED PROVISIONS OF SECTION 194C AND 40(A) O F THE ACT. WHAT IS CRUCIAL, IN MY VIEW FOR NOT DEDUCTING TDS ON CONTRA CT PAYMENTS/SUB- CONTRACT PAYMENTS, IS THAT THE PAYER SHOULD OBTAIN FORMS 151 FROM THE PAYEE AT THE RELEVANT TIME AND FURNISH EVIDENCE EIT HER BY FURNISHING FORM NO. 15J WITH REQUIRED DETAILS BEFORE THE COMMISSION ER OF INCOME TAX OR BY FILING NECESSARY EVIDENCE TO SUBSTANTIATE THE FA CT THAT HE HAS RECEIVED FORMS 151 AT THE RELEVANT TIME. IN THE INSTANT CASE THE APPELLANT HAS OBTAIN FROM 1 51 FROM THE TRUCK OWNERS TO WHOM LORRY HIRE CHARGES WERE PAID AND FUR NISHED THE REQUISITE DETAILS IN FORM NO. 15J BEFORE THE ITO WARD-57(1)TD S. IN VIEW OF THE ABOVE THE APPELLANT HAS COMPLIED WITH THE PROVISION S OF SECTION 40(A)(IA)/ 194C OF THE L.T.ACT READ WITH RULE 29D O F THE IT. RULES, 1962. IN VIEW OF THE ABOVE THERE IS NO JUSTIFICATION FOR THE ASSESSING OFFICER TO DISALLOW THE LORRY HIRE CHARGES OF RS. 1 ,57,03,383 /-. ACCORDINGLY, HE IS DIRECTED TO DELETE RS.1,57,03,383/-. CONSIDERING THE ABOVE FACTS AND THE SUBMISSIONS OF THE LEARNED REPRESENTATIVES OF THE PARTIES AS MENTIONED HEREIN ABOVE AND IN THE ABSENC E OF ANY OTHER FACTS ON RECORD, WE HOLD THAT THE LEARNED CIT(A) HAS RIGHTLY HELD THAT THE ASSESSEE HAS COMPLIED WITH THE PROVISIONS OF SECTION 40(A)(IA)/194C OF THE INCOME- TAX ACT,1961 READ WITH RULE 29D OF THE INCOME-TAX RULES,1962 AND THEREAFTER HAS DELETE D THE ADDITION OF RS.1,57,03,383 MADE BY THE ASSESSING OFFICER. HENCE, WE UPHOLD THE ORDER OF THE LEARNED CIT(A) AND REJECT THE GROUNDS OF APPEAL TAKEN BY THE DEPARTMEN T. IN VIEW OF THE ABOVE, WE DISMISS THE APPEAL OF THE REVENUE AND THE ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE. 3. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- . .. . . .. .! !! !, , , , # . . . . . . . . , , , , (C. D. RAO) (D. K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER ( (( (# # # #) )) ) DATED : 30 TH JUNE, 2010 !12 %&34 %5! JD.(SR.P.S.) 0 . -%%6 76(8- COPY OF THE ORDER FORWARDED TO: 1. +, /APPELLANT - ITO, WARD-56(3), KOLKATA 2 -+, / SRI GOBIND KR. AGARWAL, 6A, TARA CHAND DUTTA STRE ET, KOL-73. 3. %0&/ THE CIT, 4. %0& ()/ THE CIT(A), 5. !?% -%& / DR, KOLKATA BENCHES, KOLKATA 6 -%/ TRUE COPY , 0&@/ BY ORDER , A '4 / DEPUTY REGISTRAR .