Shri Tanay Kundu , Kolkata V. ITO, Ward - 50(1), Kolkata , Kolkata

ITA 777/KOL/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6176 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 23-04-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANJOY MUKHERJEE
• Assessee Lawyers: S UBHAM DAS
• Section: 194C

Judgement Text

1 ITA NO.777/KOL/2018 SRI TANAY KUNDU A.Y.2011-12 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH SMC K OLKATA [BEFORE HONBLE SHRI N.S.SAINI, AM ] ITA NO.777/KOL/2018 ASSESSMENT YEAR : 2011-12 SRI TANAY KUNDU -VERSUS- I.T.O., WARD 50 (1) KOLKATA KOLKATA (PAN:ANHPK 3338 D) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI SUBHAM DAS, ADVOCATE FOR THE RESPONDENT: SHRI SANJOY MUKHERJEE, ADDL. CI T DATE OF HEARING : 12.07.2018. DATE OF PRONOUNCEMENT : 13.07.2018. ORDER PER N.S.SAINI, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER DATED 11.01.2018 OF C.I.T-(A)-15, KOLKATA FOR A.Y. 2011-12. 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF FREIGHT CHARGES OF RS.7,59,056/- MA DE BY THE ASSESSING OFFICER BY INVOKING THE PROVISION OF SECTION 40(A)(IA) OF THE ACT AS THE ASSESSEE FAILED TO DEDUCT TDS FROM THE PAYMENTS MADE. 3. HE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSI NG OFFICER OBSERVED THAT DURING THE YEAR THE ASSESSEE HAS MADE PAYMENT OF FREIGHT OF RS .7,59,056/- TO DIFFERENT PARTIES AGAINST PURCHASES. HE OBSERVED THAT ON EXAMINATION OF THE LEDGER COPIES OF FREIGHT ON PURCHASE IT IS FOUND THAT THE ASSESSEE HAS PAID FRE IGHT ABOVE RS.20,000/- IN A SINGLE TRANSACTION AND RS.50,000/- AND ABOVE DURING THE FI NANCIAL YEAR 2010-11 TO DIFFERENT PARTIES WITHOUT DEDUCTING TDS U/S 194C OF THE ACT A ND THEREFORE BY INVOKING THE 2 ITA NO.777/KOL/2018 SRI TANAY KUNDU A.Y.2011-12 PROVISION OF SECTION 40(A)(IA) OF THE ACT HE DISALL OWED DEDUCTION OF RS.7,59,056/- TO THE ASSESSEE. 4. ON APPEAL THE CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER OBSERVING THAT ACCORDING TO THE PROVISION OF SECTION 194C (6) OF THE ACT NO DEDUCTION SHALL BE MADE FROM ANY SUM CREDITED OR PAID OR LIKELY TO BE CREDITED OR PAID DURING THE PREVIOUS YEAR TO THE ACCOUNT OF A CONTRACTOR DURING THE COURSE OF BUSINESS OF PLYING, HIRING, OR LEASING GOODS CARRIAGES WHERE SUCH CONTR ACTOR OWNS TEN OR LESS GOODS CARRIAGES AT ANY TIME DURING THE PREVIOUS YEAR AND FURNISHES A DECLARATION TO THE EFFECT ALONG WITH HIS PERMANENT ACCOUNT NUMBER, TO THE PER SON PAYING OR CREDITING SUCH SUM AND THE PERSON RESPONSIBLE FOR PAYING OR CREDIT ING ANY SUM TO THE PERSON REFERRED TO SHALL FURNISH TO THE PRESCRIBED INCOME TAX AUTHO RITY OR THE PERSON AUTHORISED BY IT, SUCH PARTICULARS, IN SUCH FORM AND WITHIN SUCH TIME AS MAY BE PRESCRIBED. HE OBSERVED THAT THE ASSESSEE HAS NOT SUBMITTED DECLARATION ALO NG WITH PERMANENT ACCOUNT NUMBER FROM CONTRACTORS WHO HAD PROVIDED THE VEHICL ES FOR WHICH FREIGHT WAS PAID AND HENCE DISMISSED THE GROUNDS OF APPEAL OF THE AS SESSEE. 5. BEFORE ME IT WAS THE SUBMISSION OF THE AUTHORISE D REPRESENTATIVE OF THE ASSESSEE THAT THERE IS AN AMENDMENT IN PROVISION TO SECTION 40(A)(IA) OF THE ACT READ WITH FIRST PROVISO TO SECTION 201, WHEREIN, IF ANY PAYEE HAS PAID THE TAX BY OFFERING/DISCLOSING THE SAID RECEIPT IN HIS/HER RET URN OF INCOME, THEN THE PAYER SHOULD NOT BE TREATED AS ASSESSEE IN DEFAULT AND NO DISALL OWANCE U/S 40(A)(IA) OF THE ACT COULD OPERATE IN THAT SCENARIO. THE SAID PROVISO THOUGH I NSERTED BY THE FINANCE ACT 2012 W.E.F. 01.04.2013 HAS BEEN HELD TO BE RETROSPECTIVE IN OPERATION BY THE RECENT DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS ANSAL LAND MARK TOWNSHIP (P)LTD [2015] TAXMAN.COM 45 (DEL). THEREFORE IT WAS THE SUBMISSION OF THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE THAT AS T HE ISSUE HAS NOT BEEN EXAMINED ACCORDING TO THE ABOVE PROVISION EITHER BY THE ASSE SSING OFFICER OR BY THE CIT(A) THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE A SSESSING OFFICER FOR ADJUDICATION OF 3 ITA NO.777/KOL/2018 SRI TANAY KUNDU A.Y.2011-12 THE ISSUE AFRESH AS PER LAW AND THE ASSESSEE IS IN A POSITION TO PRODUCE ALL THE EVIDENCE IN RELATION TO THE ISSUE. 6. LEARNED DEPARTMENTAL REPRESENTATIVE HAD NO OBJEC TION TO THE ABOVE SUBMISSIONS OF THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE. 7. IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE , I SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND RESTORE THE MATTER BACK TO TH E FILE OF THE ASSESSING OFFICER FOR ADJUDICATION OF THE ISSUE AFRESH AFTER EXAMINING WH ETHER THE TRANSPORTERS TO WHOM TO THE ASSESSEE HAS MADE THE PAYMENT OF RS.7,59,056/- HAS DISCLOSED THE AMOUNT IN THE RETURN OF INCOME AND PAID DUE TAXES THEREON. IF IT IS FOUND TO BE SO THEN NO DISALLOWANCE U/S 40(A)(IA) OF THE ACT IS WARRANTED. NEEDLESS TO MENTION THAT HE SHALL ALLOW REASONABLE OPPORTUNITY OF HEARING TO THE ASS ESSEE BEFORE ADJUDICATING THE ISSUE AFRESH. THUS THE GROUNDS OF APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON 13.07.2018. SD/- [ N.S.SAINI ] ACCOUNTA NT MEMBER DATED : 13.07.2018. [RG SR.PS] COPY OF THE ORDER FORWARDED TO: 1.SHRI TANAY KUNDU, RISHI BANKIM SARANI, HRIDAYPUR, BARASAT, KOLKATA-700127. 2. I.T.O., WD-50 (1), KOLKATA 3. C.I.T.(A)-15, KOLKATA 4. C.I.T.- 17, KOLKATA.. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, SENIOR PRIVATE SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHES 4 ITA NO.777/KOL/2018 SRI TANAY KUNDU A.Y.2011-12