Sri Bidyut Kumar Sarbajna, Kolkata V. DCIT, Cir-49, Kolkata, Kolkata

ITA 573/KOL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99740 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 31-03-2014
• Court: TRIBUNAL
• Department Lawyers: MD GHAYASUDDIN JCIT LD
• Assessee Lawyers: D K BANDYOPADHYAY FCA CA LD
• Section: 143(3)

Judgement Text

ITA NO . 573 /KOL /1 4 SMC - MVS SRI BIDYUT KUMAR SARBAJNA 1 IN THE INCOME TAX APPELLATE TRIBUNAL, SMC BENCH: KOLKATA BEFORE HON BLE SRI MAHAVIR SINGH, JM I.T.A NO . 573 /KOL/201 4 A.Y 200 7 - 08 SRI BIDYUT KUMAR SARBAJNA V S. D. C I T CIR - 49, KOLKATA PAN: A DFPB 4482P ( APPELLANT ) ( RESPONDENT ) FOR THE APPELLANT/ASSESSEE: SHRI D.K BANDYOPADHYAY, FCA, CA, LD.AR FOR THE RESPONDENT/DEPARTMENT : MD. GHAYASUDDIN, JCIT / LD. SR. DR DATE OF HEARING: 2 9 - 07 - 20 15 DATE OF PRONOUNCEMENT : - 0 8 - 201 5 10/09/2015 ORDER TH IS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE ORDER OF LD. C IT(A) , KOLKATA IN APPEAL NO. 11/XXXII/10 - 11/CIR - 49/KOL DATED 10 - 12 - 2013. ASSESSMENT WAS FRAMED BY DCIT, CIRCLE - 49, KOLKAT A FOR THE ASSESSMENT YEAR 200 7 - 08 U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) VIDE HIS ORDER DATED 22 - 12 - 2009. 2. T HE ONLY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL IS AGAINST THE ORDER OF THE CIT(A) CONFIRMING TH E DISALLOWANCE MADE ON ACCOUNT OF LABOUR CHARGES PAID TO VARIOUS PARTIES AMOUNTING TO R S. 5,65,531/ - FOR NON DEDUCTION OF TDS BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE A CT. THE RELEVANT GROUND IS GROUND NO.1, WHICH READS AS UNDER: - FOR THAT TH E AUTHORITIES BELOW HAS ERRED IN LAW AND IN FACT BY DISALLOWING A SUM OF RS.5,65,531/ - UNDER THE HEAD 40(A)(IA) ON ACCOUNT OF LABOUR CHARGES PAID ALLEGED TO BE MADE EXCEEDING RS. 20,000/ - IN A SINGLE PAYMENT AND RS.50,000/ - IN THE AGGREGATE WHICH IS VER Y MUCH ARBITRARY, UNLAWFUL AND UNJUST. 3. BRIEFLY STATED THE FACTS ARE THAT THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS MADE DISALLOWANCE OF LABOUR CHARGES PAID WITHOUT DEDUCTION OF TDS BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT OF R S.5,65,531/ - . THE AO CATEGORIZED THESE DISALLOWANCES IN TWO CATEGORIES. FIRST CATEGORY IS THAT THE AMOUNT OF R S.1,91,627/ - WAS CLAIMED TO HAVE BEEN MADE AS THE PAYMENT WAS ABOVE OF RS.20,000/ - IN A SINGLE VOUCHER AND FOR BALANCE AMOUNT OF ITA NO . 573 /KOL /1 4 SMC - MVS SRI BIDYUT KUMAR SARBAJNA 2 RS.3,73,904/ - THE ASSESSEE COULD NOT PRODUCE THE VOUCHERS FOR VERIFICATION THAT AMOUNT OF PAYMENT WAS BELOW RS.20,000/ - . 4. AGGRIEVED , ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A) , WHO ALSO CONFIRMED THE ACTION OF THE AO AFTER TAKING INTO CONSIDERATION THE RE MAND REPORT OBTAINED FROM THE AO AND SUSTAINED THE ADDITION BY OBSERVING AS UNDER: - AS THE AO HAS NEVER MENTIONED THE INDIVIDUAL COMPONENT OF THE DISALLOWANCE OF RS. 1,91,627/ - , THE ABOVE DETAILS ARE SUBSTITUTED IN ITS PLACE. THE ASSESSEE WAS CONFRONTED I N REGARD TO THE ABOVE DETAILS AND IN ITS REPLY DATED 04.09.13 , THE AR COULD ONLY CLAIM THAT THE PAYMENT TO RAM BAHADUR SINGH WAS BY CHEQUE AND TDS WAS ALSO DONE. HOWEVER, THE ISSUE IS NOT OF PAYMENT BY CASH OR CHEQUE BUT OF NON - TDS . IN THIS REGARD THE AS SESSEE HAS FILED NO DETAILS. IN VIEW OF THE ABOVE FACTS, THE ADDITIONS OF RS.1,91,627/ - TO RESTRICTED TO RS.1,84,536/ - U/S. 40(A)(IA) OF THE ACT AND THE ASSESSEE GET PART RELIEF. AS REGARDS THE NON FURNISHING OF BILLS/VOUCHERS FOR RS.3,73,904/ - THE POSIT ION REMAINS THE SAME EVEN AFTER THE ENTIRE EXERCISE NOTED ABOVE. THE VOUCHERS NOW PRODUCED IN APPELLATE PROCEEDING WERE NOT PRODUCED BEFORE THE AO AS ADMITTED IN THE GROUND OF APPEAL ALSO. FURTHER THE VOUCHERS PRODUCED NOW ARE FULL OF IRREGULARITIES AS P OINTED OUT ABOVE AND NO VOUCHER HAS ANY REVENUE STAMP TO RENDER IT AN ADMISSIBLE EVIDENCE OF PAYMENT. THE DISCREPANCIES NOTED BY THE UNDERSIGNED AND THOSE NOTED IN THE REMAND REPORT TOGETHER RENDER THE CLAIM OF THE ASSESSEE DUBI OUS. THEREFORE, THE ADDITI ON OF RS.3,73,904/ - IS SUSTAINED. THEREFORE, OUT OF TOTAL ADDITION OF RS.5,65,531/ - THE ASSESSEE GETS A RELIEF OF ONLY RRS.7091/ - AND THE BALANCE OF RS.5,58,440/ - IS SUSTAINED. 5. AGGRIEVED, NOW THE ASSESSEE IS IN SECOND APPEAL BEFORE THE TRIBUNAL . 6 . I HAVE HEARD THE RIVAL CONTENTIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. BEFORE ME THE LD. COUNSEL FOR THE ASSESSEE HAS FILED A PAPER BOOK CONSISTING OF PAGES 1 - 15 WHEREIN AT PAGES 7 - 8 THE COMPLETE DETAILS OF PAYMENT ARE REFLECTED. HE ALSO STATED THAT NONE OF THE PAYMENT EXCEEDS RS. 50,000/ - IN A YEAR IN AGGREGATE . THESE DETAILS ARE ALSO AVAILABLE BEFORE THE AO AS ALSO BEFORE THE CIT(A) . I FIND FROM THE DETAILS THAT TOTAL LABOUR CHARGES WAS RS. 1 1 ,78,484/ - OUT OF WHICH THE AO HAS DISA LLOWED A SUM OF RS.5,65,531/ - . IN NONE OF THE CASE S THE PAYMENT IS EXCEEDING RS.50,000/ - IN AGGREGATE AND SINGLE PAYMENT EXCEEDS RS.20,000/ - . IN THIS CONNECTION, SECTION 194C(5) OF THE ACT STATES AS UNDER: ITA NO . 573 /KOL /1 4 SMC - MVS SRI BIDYUT KUMAR SARBAJNA 3 (5) NO DEDUCTION SHALL BE MADE FROM THE AMOUNT OF ANY SUM CREDITED OR PAID OR LIKELY TO BE CREDITED OR PAID TO THE ACCOUNT OF, OR TO, THE CONTRACTOR, IF SUCH SUM DOES NOT EXCEED * [ THIRTY] THOUSAND RUPEES: PROVIDED THAT WHERE THE AGGREGATE OF THE AMOUNTS OF SUCH SUMS CREDITED OR PAID OR LIKELY TO B E CREDITED OR PAID DURING THE FINANCIAL YEAR EXCEEDS ** [SEVENTY - FIVE] THOUSAND RUPEES, THE PERSON RESPONSIBLE FOR PAYING SUCH SUMS REFERRED TO IN SUB - SECTION (1) SHALL BE LIABLE TO DEDUCT INCOME - TAX UNDER THIS SECTION. * SUBSTITUTED FOR TWENT Y BY THE FINANCE ACT, 2010 W.E.F 1 - 7 - 2010 **SUBSTITUTED FOR FIFTY . 7. FROM THE ABOVE, IT IS CLEAR THAT SINGLE PAYMENT DOES NOT EXCEED RS.20,000/ - AND IN AGGREGATE SHOULD NOT EXCEED RS.50,000/ - . IN THAT CASE THERE IS NO REQUIREMENT OF DEDUC TION OF TAXING AT SOURCE BY THE ASSESSEE. IN THE PRESENT CASE , THE PAYMENT DOES NOT EXCEED THE PRESCRIBED LIMIT. THEREFORE, THE AO SHOULD NOT DISALLOW THE AMOUNT. ACCORDINGLY, I DELETE THIS DISALLOWANCE AS MADE BY THE AO AND CONFIRMED BY THE CIT(A) . APPE AL OF ASSESSEE IS ALLOWED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON - 0 8 - 2015 10/09/2015 SD/ - DATED : - 0 8 - 2015 [ MAHAVIR SINGH, JUDICIAL MEMBER ] 10/09/2015 *PP /SR.P.S. COPY OF THE ORDER FORWARDED TO: 1. APPELLANT - SRI BIDYUT KUMAR SARBAJNA C/O D.K BANDYOPADHYAY & CO. CHARTERED ACCOUNTANTS, 87 LENIN SARANI, 2 ND FL., KOL - 13. 2 RESPONDEN T : DY. COMMISSIONER OF INCOME TAX, CIR - 49, KOLKATA UTTARAPAN BUILDING 2 ND FL., MANICKTALA CIVIC CENTRE, ULTADANGA, KOL - 54. 3 . THE CIT, 4 . THE CIT(A), KOLKATA 5 . DR, KOLKATA BENCHES, KOLKATA TRUE COPY, / BY ORDER A SSTT. REGISTRAR