ITO, Ward - 1(2), Kolkata, Burdwan V. M/s Cemco Marketing, Burdwan

ITA 448/KOL/2012

• Counselvise Citation: 44823514 RSA 2012
• Duration Of Justice: 2 year(s) 8 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 22-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DILIP KUMAR MITRA ADDITIONAL
• Assessee Lawyers: J M THARD
• Section: 194C

Judgement Text

I.T.A. NO . 448 /KOL./201 2 ASSESSMEN T YEAR: 200 8 - 20 0 9 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI SHAMIM YAHYA (ACCOUNTANT MEMBER) , AND SHRI GEORGE MATHAN (JUDICIAL MEMBER) I.T.A. NO. 448 /KOL . / 20 1 2 ASSESSMENT YEAR : 200 8 - 20 0 9 INCOME TAX OFFICER,.................... ..... .... ............ .. .APP ELL ANT WARD - 1(2), BURDWAN, COURT COMPOUND, BURDWAN - 713 101 - VS. - M/S. CEMCO MARKETING,................. ................ . RESPONDENT BHANGA KUTHI, G.T. ROAD, BURDWAN - 713 101 [PAN : AADFC 0235 E] APPEARANCES BY: SHRI DIL IP KUMAR MITRA, ADDITIONAL CIT, SR. D.R., FOR THE DEPARTMENT SHRI J.M. THARD , ADVOCATE , FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : DEC EM BER 10 , 2 01 4 DATE OF PRONOUNCING THE ORDER : DEC EM BER 11 , 201 4 O R D E R PER GEORGE MATHAN : THIS IS AN APPEAL FILED BY THE REVENU E AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) - XXXII , KOLKATA IN APPEAL NO. 67/ CIT( A ) - XXXII/11 - 12/CIR.1. BWN/KOL. DATED 1 1 . 0 1 .201 2 FOR TH E ASSESSMENT YEAR 200 8 - 0 9 . 2 . SHRI DILIP KUMAR MITRA, ADDL. CIT, SR. D .R., REPRESENTED ON BEHALF OF THE REVENUE AND SHRI J.M. THARD , ADVOCATE, REPRESENTED ON BEHALF OF THE ASSESSEE . I.T.A. NO . 448 /KOL./201 2 ASSESSMEN T YEAR: 200 8 - 20 0 9 PAGE 2 OF 4 3 . AT THE TIME OF HEARING, IT WAS SUBMITTED BY THE LD. SR. D .R. THAT THE ASSESSEE IS A CLEARING & FORWARDING AGENT FOR TWO CEMENT COMPANIES, N AMELY M/S. ULTRATECH CEMENT LIMITED AND M/S. GRASIM INDUSTRIES LIMITED. IT WAS THE SUBMISSION THAT IN THE COURSE OF ASSESSMENT, IT WAS NOTICED THAT THE ASSESSEE HAD CLAIMED TRANSPORTATION CHARGES PAID IN ITS PROFIT & LOSS A/C. BUT NO TDS HAD BEEN DEDUCTED UNDER SECTION 194C OF THE ACT. CONSEQUENTLY THE ASSESSING OFFICER HAD INVOKED THE PROVISIONS OF SECTION 40(A)(IA) AND HAD DISALLOWED THE TOTAL EXPENDITURE IN RESPECT OF THE TRANSPORTATION CHARGES CLAIMED. IT WAS THE SUBMISSION THAT NO DETAILS HAD BEEN PROD UCED BY THE ASSESSEE IN THE COURSE OF ASSESSMENT PROCEEDINGS. IT WAS THE SUBMISSION THAT ON APPEAL, LD. CIT(APPEALS) HAD DELETED THE ADDITION BY HOLDING THAT THE IMPUGNED PAYMENTS TO THE DEALERS FOR THE REIMBURSEMENT OF THE TRANSPORT EXPENDITURE INCURRED B Y THE DEALERS OF M/S. ULTRATECH CEMENT LIMITED AND M/S. GRASIM INDUSTRIES LIMITED. IT WAS THE SUBMISSION THAT THE LD. CIT(APPEALS) FURTHER ERRED IN HOLDING THAT THE ASSESSING O FFICER HAD NOT GIVEN ANY FINDING THAT THE IMPUGNED PAYMENTS WERE MADE TO A CONTR ACTOR OR SUB - CONTRACTOR UNDER A CONTRACT. IT WAS THE SUBMISSION THAT THE ORDER OF THE LD. CIT(APPEALS) WAS LIABLE TO BE REVERS ED. 4 . IN REPLY, LD. A .R. DREW OUR ATTENTION TO PAGE 1 OF THE PAPER BOOK WHICH WAS THE REPLY FILED BY THE ASSESSEE TO THE SHOW - CA USE NOTICE ISSUED BY THE ASSESSING OFFICER. THE REPLY IS DATED 27.12.2010 AND IT CONTAINS THE SEAL OF THE ASSESSING OFFICER DATED 27.12.2010. IT WAS THE SUBMISSION THAT THE ASSESSEE HAD NOT MADE ANY PAYMENT TO THE TRANSPORT CONTRACTORS. IT WAS THE SUBMISS ION THAT THE ASSESSEE HAD ONLY REIMBURSED THE COST INCURRED BY THE DEALERS IN RESPECT OF THE TRANSPORTATION OF THE CEMENT FROM THE FACTORY GODOWN TO THE DEALERS PREMISES. LD. A.R. DREW OUR ATTENTION TO PAGES 28 TO 31 OF THE PAPER BOOK, WHICH WERE COPIES O F THE BILLS RAISED BY THE ASSESSEE TO M/S. GRASIM INDUSTRIES LIMITED AS ALSO M/S. ULTRATECH CEMENT LIMITED. IT WAS THE SUBMISSION THAT THE DEALERS USED TO SUBMIT THE DETAILS OF THE TRANSPORTATION COST AND THE ASSESSEE USED TO I.T.A. NO . 448 /KOL./201 2 ASSESSMEN T YEAR: 200 8 - 20 0 9 PAGE 3 OF 4 RAISE THE BILLS ON M/S. ULTRAT ECH CEMENT LIMITED AND M/S. GRASIM INDUSTRIES LIMITED FOR THE SAME AND THE ASSESSEE WAS GRANTED SERVICE CHARGES OF 5% FOR ACTING AS A CLEARING AND FORWARDING AGENT. THE TRANSPORTATION BILLS RAISED BY THE DEALERS WERE REIMBURSED BY THE ASSESSEE ON BEHALF OF M/S. GRASIM INDUSTRIES LIMITED AND M/S. ULTRATECH CEMENT LIMITED. IT WAS THE SUBMISSION THAT THE ASSESSEE WAS IN EFFECT ONLY A GO BETWEEN FOR COLLECTING AND PAYING THE BILLS OF M/S. ULTRATECH CEMENT LIMITED AND M/S. GRASIM INDUSTRIES LIMITED. IT WAS THE S UBMISSION THAT EVEN THE LEDGER ACCOUNT CLEARLY SHOWS NO PAYMENTS TO ANY TRANSPORTERS BUT THE AMOUNTS CLEARLY SHOW AS PAYMENTS TO THE DEALERS. IT WAS THE SUBMISSION THAT THE AMOUNTS WERE SHOWN IN THE PROFIT & LOSS ACCOUNT ONLY BECAUSE M/S. GRASIM INDUSTRIES LIMITED AND M/S. ULTRATECH CEMENT LIMITED USED TO DEDUCT TDS ON THE PAYMENTS MADE TO THE ASSESSEE AND FOR THE PURPOSE OF CLAIMING THE CREDIT OF THE TDS, THE AMOUNTS HAD TO BE SHOWN IN THE PROFIT & LOSS ACCOUNT. IT WAS THE SUBMISSION THAT ALL THESE DETAILS WERE BEFORE THE ASSESSING OFFICER AND THE LD. CIT(APPEALS) HAD RIGHTLY DELETED THE ADDITION. 5 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT THE ASSESSING OFFICER MENTIONS THAT THE ASSESSEE HAS NOT PROVIDED THE DETAILS. HOWEVER, A PERUSAL OF THE REPLY FILED BY THE ASSESSEE ON 27.12.2010 CLEARLY SHOWS THAT THE SHOW - CAUSE NOTICE WAS ISSUED TO THE ASSESSEE ON 21.12.2010 AND THE ASSESSEE HAS REPLIED TO THE SAME WITH ALL THE DETAILS ON 27.12.2010. IN THESE CIRCUMSTANC ES, CLEARLY THE FINDING OF THE ASSESSING OFFICER THAT THE ASSESSEE HAS FAILED TO PROVIDE THE FULL PARTICULARS IS WRONG. NOW COMING TO THE FINDING OF THE LD. CIT(APPEALS), IT IS NOTICED THAT THE LD. CIT(APPEALS) HAS DELETED THE DISALLOWANCE ON THE GROUND THAT THE FACTS CLEARLY SHOW THAT THE IMPUGNED PAYMENTS WERE MADE TO THE DEALERS OF M/S. ULTRATECH CEMENT LIMITED AND M/S. GRASIM INDUSTRIES LIMITED AND NOT TO ANY TRANSPORTER. THIS FINDING OF THE LD. CIT(APPEALS) IS CLEARLY I.T.A. NO . 448 /KOL./201 2 ASSESSMEN T YEAR: 200 8 - 20 0 9 PAGE 4 OF 4 SUPPORTED BY THE LEDGER EXTRACTS IN RESPECT OF EACH OF THE DEALERS, AS HAS BEEN PLACED BEFORE US. THIS IS ALSO SUPPORTED BY COPY OF THE BILLS AS FOUND IN THE PAPER BOOK. THIS FINDING IS ALSO ITS LINE WITH THE SUBMISSIONS MADE BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. IN FACT, THE FAC TS THAT THE ASSESSEE HAS PAID TO THE DEALERS AND NOT TO THE TRANSPORTERS WHICH IS ALSO SUPPORTED BY THE EVIDENCES HAVE NOT BEEN DISLODGED BY THE REVENUE. IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE FINDING OF THE LD. CIT(APPEALS) ON THIS ISSUE IS O N THE RIGHT FOOTING AND DOES NOT CALL FOR ANY INTERFERENCE. 6 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH DEC EM BER, 2014. SD/ - SD/ - SHAMIM YAHYA GEORGE MATHAN ( ACCOUNTANT MEMBER) ( JUDICIAL MEMBER) KOLKATA, THE 11 TH D AY OF DEC EM B ER , 201 4 COPIES TO : (1) INCOME TAX OFFICER, WARD - 1(2), BURDWAN, COURT COMPOUND, BURDWAN - 713 101 (2) M/S. CEMCO MARKETING, BHANGA KUTHI, G.T. ROAD, BURDWAN - 713 101 (3) COMMISSIONER OF INCOME TAX (APPEALS) ( 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.