NAVINKUMAR K SHARMA, MUMBAI V. ITO 15(1)(2), MUMBAI

ITA 5374/MUM/2012

• Counselvise Citation: 537419914 RSA 2012
• Duration Of Justice: 2 year(s) 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 25-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 27-08-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: P K PARIDA; SANJUKTA CHOWDHARY
• Keywords: Opportunity of being heard

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO.5374/MUM/2012 ASSESSMENT YEAR: 2008-09 MR. NAVINKUMAR K. SHARMA, 304, VEENA CHAMBERS, 4 TH CLIVE CROSS ROAD, DANA BUNDER, MASJID BUNDER (E), MUMBAI-400009 / VS. ITO, WD.15(1)(2), MATRUMANDIR, TARDEO ROAD, MUMBAI-400007 ( ! ' /ASSESSEE) ( # / REVENUE) P.A. NO. AXYPS1823Q # / REVENUE BY SHRI JEETENDRA KUMAR-DR ! ' / ASSESSEE BY SHRI P.K.PARIDA & SANJUKTA CHOWDHARY $ #% & ' ' / DATE OF HEARING : 25/06/2015 & ' ' / DATE OF ORDER: 24/07/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 03/01/2012 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. MR. NAVINKUMAR K. SHARMA ITA NO.5374/MUM/2012 2 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD, SHRI P.K.PARIDA, ALONG WITH SANJUKTA CHOWDHARY, LD. COUNSEL FOR THE ASSESSEE AND SHRI JEETENDRA KUMAR, LD. DR. THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS GROU NDS NO.1, 2 AND 5 TO 7, RAISED IN THE GROUNDS OF APPEAL, THER EFORE, THESE GROUNDS ARE DISMISSED AS NOT PRESSED. 2.1. THE NEXT GROUND, RAISED BY THE ASSESSEE IS WI TH RESPECT TO ADDING A SUM OF RS.16, 56,315/- AS UNDIS CLOSED INCOME BEING DIFFERENCE IN TRANSPORT CHARGES RECEIV ED AND AS PER NSDL E-TDS RECORD. THE CLAIM OF THE ASSESSEE I S THAT THE RECONCILIATION STATEMENTS WERE FILED ALONG WITH THE SUBMISSIONS ON 19/09/2011 BEFORE THE LD. COMMISSION ER OF INCOME TAX (APPEALS). HOWEVER THE LD. DR DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER. 2.2. WE HAVE PERUSED THE RECORD AND CONSIDERED THE SUBMISSIONS OF THE ASSESSEE. WE NOTE THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS MADE DISCU SSION WITH RESPECT TO THE AMOUNT OF RS.16,56,315/- (THRO UGH GROUND NO.1) PAGE-1) OF THE IMPUGNED ORDER. WE HAV E ALSO PERUSED THE PAPER BOOK AND FIND THAT AT PAGE-35, RECONCILIATION OF TDS FOR THE PERIOD FROM 01/04/200 7 TO 31/03/2008 WERE FILED BY THE ASSESSEE BEFORE THE LD . COMMISSIONER OF INCOME TAX (APPEALS). HOWEVER, THE SAME WAS NOT FILED BEFORE THE ASSESSING OFFICER. EVEN, T HERE IS NO FINDING ON THE ISSUE OF RECONCILIATION BY THE LD.CI T(A) AS IS EVIDENT FROM PARA-3.2 (PAGE-3) OF THE IMPUGNED ORDE R. THUS, IN THE INTEREST OF JUSTICE, WE REMAND THIS IS SUE TO THE MR. NAVINKUMAR K. SHARMA ITA NO.5374/MUM/2012 3 FILE OF THE LD. ASSESSING OFFICER TO EXAMINE THE CL AIM OF THE ASSESSEE AND DECIDE AFRESH IN ACCORDANCE WITH LAW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD WITH F URTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT HIS CLAIM. THUS, THIS GROUND OF THE ASSESSEE IS ALLOWED FOR ST ATISTICAL PURPOSES. 3. THROUGH GROUND NO.4, THE ASSESSEE HAS CHALLENGED DISALLOWING A SUM OF RS.66,74,260/- U/S 40(A)(IA) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) BEING FREIGHT CHARGES. AS PER THE PROCEDURE, THE A SSESSEE APPROACHES AGENTS/SUPPLIERS, WHO ARRANGE THIRD PART Y TRUCKS AND PAYMENTS ARE DIRECTLY MADE TO THE TRUCK OWNERS AT THE TIME OF LOADING. THE AGENTS WHO ARRANGE THE TRUCKS ARE NOT THE OWNER OF ANY VEHICLE. THE LD. ASSESSIN G OFFICER DISALLOWED THE FREIGHT PAYMENTS. IN VIEW OF THESE FACTS AND THE CLEAR PROVISIONS OF THE ACT SECTION 40(A)(IA) O F THE ACT IS NOT APPLICABLE AS THESE ARE FREIGHT CHARGES. SECTIO N 40(A)(IA) DEALS WITH INTEREST, COMMISSION OR BROKERAGE, ETC P AYABLE TO A RESIDENT FOR PROFESSIONAL SERVICES OR FEE FOR TEC HNICAL SERVICES OR AMOUNTS PAYABLE TO CONTRACTS AND SUB- CONTRACTORS FOR CARRYING OUT ANY WORK, THUS, THERE ARISES NO QUESTION OF DISALLOWANCE UNDER THIS PROVISION WHERE THE TRANSPORTATION CHARGES ARE INCURRED BY AGENT ON BEH ALF OF THE ASSESSEE AND THE ASSESSEE IS NOT REQUIRED TO DE DUCT THE TAX. WE FIND SUPPORT FROM THE DECISION OF HONBLE G UJARAT HIGH COURT IN THE CASES OF CIT VS GUJARAT NARMADA VALLEY FERTILIZERS COMPANY LTD. (2014) 361 ITR 192(GUJ.), CIT VS B.M.S. PROJECTS P. LTD.(2014) 361 ITR 195 (GUJ.) AN D FROM MR. NAVINKUMAR K. SHARMA ITA NO.5374/MUM/2012 4 THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS S.K. TEKTRIWAL (2014) 361 ITR 432 (CAL.) THUS THIS GROUN D OF THE ASSESSEE IS ALLOWED. FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOW ED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 25/06/2015. SD/ - (RAJENDRA) SD/ - (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER $ % MUMBAI; ( DATED : 24/07/2015 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 0 0 $ 1' ( *+ ) / THE CIT, MUMBAI. P4. 0 0 $ 1' / CIT(A)- , MUMBAI 5. 3#4 .' , 0 *+' * 5 , $ % / DR, ITAT, MUMBAI 6. 6 7% / GUARD FILE. / BY ORDER, /3+' .' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , $ % / ITAT, MUMBAI