G. R.Fab, Kolkata V. ITO, Wd-34(4), Kolkata, Kolkata

ITA 435/KOL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92074 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 14-03-2014
• Court: TRIBUNAL
• Department Lawyers: SNEHATPOL DUTTA
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Retrospective amendment
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: KOLKATA [BEFORE SHRI MAHAVIR SINGH, JM ] I.T.A NO. 4 3 5 /KOL/201 4 ASSESSMENT YEAR : 200 9 - 1 0 G. R. FAB VS. INCOME - TAX OFFICER, WD - 34(4), KOLKATA (PAN: AAGFG0425K) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 28 .0 7 .2015 DATE OF PRONOUNCEMENT: 28 . 07 . 2015 FOR THE APPELLANT : SHRI MIRAJ D. SHAH, ADVOCATE FOR THE RESPONDENT : S HRI SNEHATPOL DUTTA, JCIT ORDER THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT (A) - XX , KOLKATA , IN APPEAL NO . 1 9 0 / CIT(A) - XX/WARD - 34(4)/11 - 12/KOL DATED 09 . 12 .201 3 . ASSESSMENT WAS FRAMED BY ITO, WARD - 34(4) , KOLKATA U/S. 14 3( 3 ) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) FOR ASSESSMENT YEAR 200 9 - 1 0 VIDE HIS ORDER DATED 2 2 . 09 .20 11 . 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGAINST THE ORDER OF CIT(A) CONFIRMING THE DISALLOWANCE OF TRANSPORT EXPENSES AMOUNTING TO RS.4,29,658/ - FOR NON - DEDUCTION OF TDS LU/S. 194C OF THE ACT BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SHRI MIRAJ D. SHAH STATED THAT THESE TRANSPORT CHARGES ARE PAID TO ONLY ONE PARTY I.E. M/S. CENTRAL TRANSPORT SERVICES AND ADMITTEDLY NO TAX WAS DEDUCTED. BUT HE MADE THE PLEA THAT M/ S. CENTRAL TRANSPORT SERVICES HAS INCLUDED THESE TRANSPORT CHARGES IN THEIR RETURN OF INCOME AND FILED THE RETURN OF INCOME ACCORDINGLY AND PAID TAXES ALSO. ACCORDINGLY, LD. COUNSEL STATED THAT THIS ISSUE STANDS COVERED BY THE DECISION OF COORDINATE BENCH OF THIS T RIBUNAL IN THE CASE OF ITA NO. 1905/KOL/2014 - SANTOSH KR. KEDIA VS. ITO, AY 2007 - 08 DATED 04.03.2015, WHEREIN VIDE PARA 10 THE TRIBUNAL HAS HELD AS UNDER: 10. SECONDLY, I AM OF THE VIEW THAT THE INSERTION OF SECOND PROVISO TO SEC. 40(A)(IA) OF THE ACT I S CURATIVE AND IT HAS RETROSPECTIVE EFFECT W.E.F. 1 ST APRIL, 2005, BEING A DATE FROM WHICH SEC. 40(A)(IA) OF THE ACT WAS INSERTED BY THE FINANCE (NO. 2) ACT, 2004. IN VIEW OF THIS, I AM OF THE VIEW THAT MATTER NEEDS FRESH ADJUDICATION IN THE LIGHT OF THE FACT THAT THE AO WILL CARRY OUT NECESSARY VERIFICATION IN REGARD TO RELATED PAYMENTS HAVING BEEN 2 ITA NO. 435 /K/201 4 G. R. FAB AY 200 9 - 1 0 TAKEN INTO ACCOUNT BY THE RECIPIENT IN COMPUTATION OF ITS INCOME AND VERIFICATION OF PAYMENT OF TAXES IN RESPECT OF SUCH INCOME AND ALSO FILING OF INCOME TAX R ETURN BY THE RECIPIENT. IN TERM OF THE ABOVE, THE SECOND ASPECT ARGUED BY LD. COUNSEL IS RESTORED BACK TO THE FILE OF THE AO AND ASSESSEE WILL PROVIDE ALL THE DETAILS IN TERMS OF SECOND PROVISO TO SEC. 40(A)(IA) OF THE ACT. 4. IN VIEW OF THE ABOVE, L D. COUNSEL STATED THAT THE ISSUE BE REMITTED BACK TO THE FILE OF AO FOR VERIFICATION WHETHER THE PAYEE HAS INCLUDED THE ABOVE TRANSPORT CHARGES IN THE RESPECTIVE INCOMES AND PAID TAXES ALSO. IN TERMS OF THE ABOVE, I SET ASIDE THIS ISSUE TO THE FILE OF AO FOR VERIFICATION IN TERMS OF THE DECISION OF SANTOSH KR. KEDIA, SUPRA. APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5 . IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6 . ORDER IS PRONOUNCED IN THE OPEN COURT . S D / - (MAHAVIR SINGH) J UDICIAL MEMBER DATED : 28 TH JU LY , 201 5 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . A PPELLANT G. R. FAB, C/O D. J. SHAH & CO., KALYAN BHAVAN, 2 ELGIN ROAD, KOLKATA - 700020 2 RESPONDENT ITO, WARD - 34(4), KOLKATA. 3 . THE CIT (A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .