M/s. MGB Transport, Burdwan V. ITO, Ward - 3(1), Asansol, Asansol

ITA 726/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8202 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-01-2020
• Assessment Year: 2010-2011
• Appeal Filed On: 09-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHRUBAJYODI ROY J
• Assessee Lawyers: DEBANJU BASU THAKUR
• Keywords: TDS
• Section: 143(3); 40(a)(ia); 68; 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 724 TO 726 / KOL / 2019 ASSESSMENT YEARS :2008-09 TO 2010-11 M.G.B. TRANSPORT BABU PARA, P.O. SEARSOLE RAJBARI, RANIGANJ-713358 [ PAN NO.AAOFM 1663 P ] V/S . INCOME TAX OFFICER, WARD-3(1) SAHANA APARTMENT, LOWER CHELIDANGA, ASANSOL- 713304 /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI DEBANJU BASU THAKUR, ADVOCATE /BY REVENUE SHRI DHRUBAJYODI ROY, JCIT-DR /DATE OF HEARING 16-01-2020 /DATE OF PRONOUNCEMENT 22-01-2020 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THESE THREE APPEAL(S) FOR ASSESSMENT YEAR(S) 2008- 09 TO 2010-11 ARISE AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-AS ANSOLS SEPARATE ORDERS DATED 11.01.2011, 16.01.2014 & 23.09.2014 PASSED IN CASE NO.S 271/CIT(A)/ASL/W-3(1)/10-11, 338/CIT(A)/ASL/WD-3(1) /ASL/11-12 & 169/C.I.T(A)/ASL/W-3(1)/ASL/13-14 IN PROCEEDINGS U/ S 143(3) IN FORMER TWO U/S 144 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT IN LAST ASSESSMENT YEAR; RESPECTIVELY. HEARD SHRI THAKUR REPRESENTING ASSESSEE AND SHRI RA Y, JCIT-DR APPEARING AT THE REVENUES BEHEST. ITA NOS.724-726/KOL/2019 A.YS. 08- 09 TO10-11 M.G.B. TRANSPORT VS. ITO WD-3(1), ASL. PAGE 2 2. IT TRANSPIRES DURING THE COURSE OF HEARING THAT THE ASSESSEES FORMER SUBSTANTIVE GRIEVANCE IN ITA NO.724/KOL/2019 AND ONLY SUBSTANTIVE GROUND RAISED IN ASSESSMENT YEAR 2009-10 INVOLVING ITA NO.725/KOL/2019 SEEKS TO REVERSE BOTH THE LOWER AUTHORITIES ACTION DISALLOW ING ITS HIRE CHARGES AMOUNTING TO 45,70,140/- AND 19,77,460/-; ASSESSMENT YEAR-WISE (RESPECTIVELY), ON ACCOUNT OF NON-DEDUCTION OF TDS INVOKING SEC. 40(A)(IA) OF THE ACT. THERE IS NO DISPUTE THAT THIS ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN TRANSPORTATION BUSINESS. IT HAD MADE THE PAYMENT S IN QUESTION TO THE PAYEES / RECIPIENTS FOR TRANSPORTING THE GOODS FROM CUSTOMERS TO THEIR RESPECTIVE DESTINATION. THE ASSESSING AUTHORITY OF THE VIEW THAT THE ASSESSEE HAD NEITHER OBTAINED / DEPOSITED FORM15-I NOR SUBMI TTED FORM-15-J BEFORE THE CIT. AND ALSO THAT THE IMPUGNED SUB-CONTRACTUAL PAY MENTS EXCEEDED THE CORRESPONDING THRESHOLD LIMIT AND THEREFORE, IT WAS BOUNDEN DUTY OF THE ASSESSEE TO COMPLY SEC. 194-C OF THE ACT. ALL THIS HAS RESULTED IN THE IMPUGNED DISALLOWANCE. 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL PLEADINGS AGAINST AND IN SUPPORT OF THEIR STANDS ADOPTED THROUGHOUT. WE NOTICE AT THE OUTSET THAT THE ASSESSEES CASE HAS BEEN THAT NO TDS WAS DEDUCT ED QUA THE IMPUGNED PAYMENT SINCE THERE WAS NO CONTRACTOR / SUB-CONTRAC TOR RELATIONSHIP WITH THE PAYEES. THE REVENUES CASE ON THE OTHER HAND IS THA T ALL THE IMPUGNED PAYMENTS HAVE MADE BEEN IN A PARTICULAR MANNER WHIC H SUFFICIENTLY SUGGESTS THAT ORAL TRANSPORTATION CONTRACTS VERY WELL EXISTE D BEFORE THEM. WE FIND NO MERIT IN REVENUES ARGUMENTS. WE MAKE IT CLEAR THAT APART FROM DRAWING AN INFERENCE OF EXISTENCE OF ORAL CONTRACTS BETWEEN AS SESSEE AND ITS PAYEES, THERE IS NOT AN IOTA OF DISCUSSION OR FINDING IN TH E LOWER AUTHORITIES RESPECTIVE ORDER(S) THAT THE PAYEES HAD EVER UNDERTAKEN ANY CO NTRACTUAL LIABILITY IN CASE OF TRANSPORTATION OF GOODS. HON'BLE JURISDICTIONAL HIGH COURTS DECISION IN COMMISSIONER OF INCOME TAX KOLKATA-XVI VS. M/S STUM M INDIA IN ITA NO. 127 OF 2009 DATED 16.08.2010 HOLDS THAT THE IMPUGNED DISALLOWA NCE DOES NOT APPLY IN ABSENCE OF CONTRACT THAT RELATIONSHIP BETW EEN PAYER / PAYEES SO AS TO ITA NOS.724-726/KOL/2019 A.YS. 08- 09 TO10-11 M.G.B. TRANSPORT VS. ITO WD-3(1), ASL. PAGE 3 ATTRACT SEC. 194-C OF THE ACT. THE ASSESSEE SUCCEED S IN THE INSTANT ISSUE THEREFORE. ITS FORMER SUBSTANTIVE GROUND AND SOLE S UBSTANTIVE GRIEVANCE IN THESE TWO ASSESSMENT YEAR(S) (SUPRA) ARE ACCEPTED. ITA NO.725/KOL/2019 FOR ASSESSMENT YEAR 2009-10 SUCCEEDS THEREFORE. 4. WE STAY BACK IN ASSESSMENT YEAR 2008-09 WHEREIN ASSESSEES APPEAL ITA NO.724/KOL/2019 RAISES THE SECOND SUBSTANTIVE ISSUE OF CORRECTNESS OF SEC. 68 ADDITION AMOUNTING TO 13,48,894/- MADE BY THE ASSESSING OFFICER AND RESTRICTED TO THE EXTENT OF 4,92,856/- IN THE LOWER APPELLATE PROCEEDINGS. SUFFICE TO SAY, THE IMPUGNED SUM IS IN THE NATURE O F CAPITAL IN PARTNERS ACCOUNT ONLY. HON'BLE GUJARAT HIGH COURTS DECISION IN PCIT VS. VAISHNODEVI REFOILS & SOLVEX (2018) 89 TAXMANN.COM 80 (GUJ) HOLDS THAT SUCH A S UM IN PARTNERS CAPITAL ACCOUNT CANNOT BE ADDED AS UNEXPL AINED CASH CREDITS U/S 68 OF THE ACT. WE THEREFORE DELETE THE IMPUGNED LATTER ISSUE AS WELL. THIS ASSESSEES APPEAL ITA NO.724/KOL/2019 IS ALSO ALLOWED. 5. COMING TO LAST ASSESSMENT YEAR 2010-11 INVOLVING ASSESSEES APPEAL ITA NO.726/KOL/2019, WE NOTICE THAT THE CIT(A) PASS ED HIS LOWER APPELLATE ORDER EX PARTE AFTER HOLDING THAT THE ASSESSEE HAD NOT PUT IN APP EARANCE DESPITE SERVICE OF NOTICE. LEARNED DEPARTMENTAL REP RESENTATIVE FAILS TO DISPUTE THAT THE CIT(A)S ORDER UNDER CHALLENGE HAS NOWHERE DISCUSSED MERITS OF THE VARIOUS ISSUES AS CONTEMPLATED U/S.250(6) OF THE AC T REQUIRING FRAMING OF POINTS OF DETERMINATION FOLLOWED A DETAILED ADJUDIC ATION. WE THEREFORE DEEM IT APPROPRIATE TO RESTORE THE ASSESSEES INSTANT LAST APPEAL BACK TO CIT(A) FOR AFRESH ADJUDICATION AS PER LAW AFTER AFFORDING ADEQ UATE OPPORTUNITIES OF HEARING. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE CIT(A) ON OR BEFORE 30.06.2020 ALONG WITH A COPY OF THE INSTANT COMMON ORDER FOR FURTHER CONSEQUENTIAL PROCEEDINGS. THIS LAST APPEAL ITA NO. 726/KOL/2019 IS ACCEPTED FOR STATISTICAL PURPOSES. NO OTHER GROUND HAS BEEN AGITATED BEFORE US AT THE ASSESSEES BEHEST DURING THE COURSE OF HEARING. ITA NOS.724-726/KOL/2019 A.YS. 08- 09 TO10-11 M.G.B. TRANSPORT VS. ITO WD-3(1), ASL. PAGE 4 6. THE ASSESSEES FORMER TWO APPEAL(S) ITA NO. 724 AND 725/KOL/2019 ARE ALLOWED AND LAST APPEAL ITA NO.726/KOL/2019 IS ALLOWED FOR STATISTICAL PURPOSES IN ABOVE TERMS. A COPY OF THE INSTANT COMMON ORDER BE PLACED IN THE RESPECTIVE CASE FILES. ORDER PRONOUNCED IN THE OPEN COURT 22/01/2020 SD/- SD/- ( ) () ) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP *- 22/01 /20 20 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-M.G.B. TANSPORT BABU PARA, P.O.SEARSOLE R AJBARI RANIGANJ-713358 2. /REVENUE-ITO WARD-3(1), SAHANA APARTMENT,LOWER CHEL IDANGA, ASANSOLS-713304 3. 5 6 / CONCERNED CIT KOLKATA 4. 6- / CIT (A) KOLKATA 5. 9 ))5, 5, / DR, ITAT, KOLKATA 6. > / GUARD FILE. BY ORDER/ , /TRUE COPY/ 5,