Mohammed Dawood, Hooghly V. ITO, Ward - 28(2), Kolkata, Kolkata

ITA 688/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54686 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2011
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 08-04-2010
• Court: TRIBUNAL
• Department Lawyers: S K ROY
• Assessee Lawyers: SOMNATH GHOSH
• Section: 194C

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A, KOLKATA () BEFORE . .. . , , , , , SHRI N.VIJAYAKUMARAN, JUDICIAL MEMBER. ! ! ! ! /AND . .. .'# '#'# '#. .. . , $% SHRI C.D.RAO, ACCOUNTANT MEMBER !& !& !& !& / ITA NO .688 /KOL/2010 '( )*/ ASSESSMENT YEAR : 2006-07 (,- / APPELLANT ) MOHAMMED DAWOOD, KOLKATA (PAN: AGPPD 6417 R) - - - VERSUS - . (/0,-/ RESPONDENT ) I.T.O., WARD-28(2), KOLKATA ,- 1 2 $/ FOR THE APPELLANT: SHRI SOMNATH GHOSH /0,- 1 2 $/ FOR THE RESPONDENT: SHRI S.K.ROY 3 1 #% /DATE OF HEARING : 11.11.2011. 4) 1 #% /DATE OF PRONOUNCEMENT : 18.11.2011. $5 / ORDER ( (( ( . .. .'# '#'# '#. .. . ) )) ), , , , $% PER SHRI C.D.RAO, AM THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 07.01.2010 OF THE CIT(A)-XIV, KOLKATA PERTAINING TO A.YR. 2006-07. 2. THE ONLY ISSUE RAISED BY ASSESSEE IS RELAT ING TO THE DISALLOWANCE OF RS.46,26,684/- BY APPLYING THE PROVISIONS OF SECTIO N U/S 40(A)(IA) OF THE IT ACT. 3. THE BRIEF FACTS OF THIS ISSUE ARE THAT WHI LE DOING THE SCRUTINY ASSESSMENT ASSESSING OFFICER HAS DISALLOWED AN AMOUNT OF RS.46 ,26,684/- BY OBSERVING THAT 2 THE ASSESSEE DURING THE FINANCIAL YEAR WAS ENGAGED IN THE BUSINESS OF HIRING AND TRANSPORTATION AS A CONTRACTOR UNDER THE NAME A ND STYLE M/S. DELTA ENGG. & CONSTRUCTION CO. THE ASSESSEE FILED HIS RETURN ALO NG WITH AUDITED PROFIT & LOSS ACCOUNT AND BALANCE SHEET. THE ASSESSEE IN HIS PROF IT AND LOSS ACCOUNT FILED WITH THE RETURN HAS CLAIMED EXPENSES UNDER THE HEAD TRA NSPORT CHARGES A SUM OF RS.5464181/-. IN COURSE OF ASSESSMENT PROCEEDINGS T HE ASSESSEE PRODUCED BANK STATEMENT, BOOKS OF ACCOUNTS AND SUPPORTING BILLS & VOUCHERS. IT APPEARED FROM THE BOOKS OF ACCOUNT OF THE ASSESSEE THAT THE ASSES SEE HAS CLAIMED EXPENSES UNDER THE HEAD TRANSPORT CHARGES A SUM OF RS.5464 181/-. THE ASSESSEE PRODUCED LIST OF THE PARTIES TO WHOM SUCH EXPENSES WERE PAID BY HIM. IN COURSE OF HEARING THE AUTHORISED REPRESENTATIVE OF THE ASS ESSEE SRI J.K.MUKHERJEE, ACCEPTED THAT THE ASSESSEE DID NOT DEDUCT ANY TDS F ROM THE PAYMENT ON ACCOUNT OF TRANSPORT CHARGES. FROM THE ABOVE MENT IONED LIST IT APPEARED THAT IN THE FOLLOWING CASES TRANSPORT CHARGES WERE PAI D ABOVE THE LIMIT PRESCRIBED IN SEC.40A(IA) OF THE INCOME TAX ACT. 3.1. ON APPEAL THE LD. CIT(A) HAS CONFIRMED TH E SAME. 3.2. AGGRIEVED BY THIS ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. AT THE TIME OF HEARING THE LD. COUNSEL AP PEARING ON BEHALF OF ASSESSEE SUBMITTED THAT BY REFERRING TO THE VARIOUS TRIBUNAL JUDGEMENTS OF KOLKATA BENCHES THAT PROVISION OF SECTION 194C OF THE IT ACT IS NOT APPLICABLE IN THE CASE OF INDIVIDUALS. FOR A.YR. 2006-07 CONSEQUENTLY THE ADD ITION MADE U/S40(A)(IA) OF THE IT ACT IS NOT APPLICABLE IN THE PRESENT FACTS AND CIRC UMSTANCES OF THE CASE. 5. ON THE OTHER HAND, THE LD. DR APPEARIN G ON BEHALF OF THE REVENUE HAS RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON PERUSAL OF MATERIALS AVAILABLE ON RECORD THE UNDISPUTED FACT IS THAT IN THIS CASE THE ASSESSEE IS AN INDIVIDUAL AND IT IS ALSO A FACT THAT THIS TRIBUNAL HAS CONSISTENTLY TAKING A VIEW THAT THE PROVISION OF SECTION 194C(1) IS APPLICABLE TO THE INDIVIDUAL ASSESSEE W. E.F 01.06.2007. SINCE THE ASSESSMENT YEAR INVOLVED IN THIS APPEAL IS 2006-07 WE ARE OF THE VIEW THAT THE REVENUE IS NOT JUSTIFIED IN DISALLOWING EXPENDITURE U/S 40A(IA) OF THE ACT. 6.1. FOR READY REFERENCE WE REPRODUCE THE OBSE RVATIONS OF THE TRIBUNAL IN THE CASE OF AJAY RAWLA VS DCIT.CIRCLE-28, KOLKATA VIDE ITA N O.353/KOL/2010 DATED 22.06.2011 WHICH IS AS UNDER :- 3. AFTER HEARING THE RIVAL SUBMISSIONS AND ON PERUSAL OF MATERIALS AVAILABLE ON RECORD THE UNDISPUTED FACT IS THAT IN THIS CASE THE ASSESSEE IS AN 3 INDIVIDUAL AND THIS TRIBUNAL HAS CONSISTENTLY TAKIN G A VIEW THAT THE PROVISION OF SECTION 194C(1) IS APPLICABLE TO THE INDIVIDUAL ASS ESSEE W.E.F 01.06.2007. SINCE THE ASSESSMENT YEAR INVOLVED IN THIS APPEAL IS 2006 -07 WE ARE OF THE VIEW THAT THE REVENUE IS NOT JUSTIFIED IN DISALLOWING EXPENDI TURE U/S 40A(IA) OF THE ACT BY STATING THAT THE ASSESSEE HAS NOT DEDUCTED TDS AS R EQUIRED U/S 194C OF THE ACT. THEREFORE, THE ACTION OF THE REVENUE AUTHORITIES IS NOT SUSTAINABLE AS PER LAW. WE SET ASIDE THE ORDER OF THE REVENUE AUTHORITIES A ND DIRECT THE AO NOT TO MAKE ANY DISALLOWANCE U/S 40(A)(IA) OF THE IT ACT. 6.2. RESPECTFULLY FOLLOWING THE SAME WE ALLOW T HE APPEAL OF ASSESSEE AND DIRECT THE AO NOT TO MAKE ANY DISALLOWANCE U/S 40(A)(IA) OF T HE IT ACT. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 18.11.2011. . .. . ' ' ' ' N.VIJAYAKUMARAN, JUDICIAL MEMBER . .. .'# '#'# '#. .. . , , , , $% $% $% $% , C.D.RAO, ACCOUNTANT MEMBER DATED : 18.11.2011. RG(PS) $5 1 /'' 6$)7- COPY OF THE ORDER FORWARDED TO: 1. MOHAMMED DAWOOD, C/O ADVOCATE SHRI SOMNATH GHOSH, SEBEN BROTHERS LODGE, P.O. BUROSHIBTALA, P.S.CHINSURAH, DIST. HOO GHLY. PIN:712105. 2 THE I.T.O., WARD-28(2), KOLKATA 3. THE CIT, 4. THE CIT(A)-XIV, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA 0 /'/ TRUE COPY, $5/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES