Syed Anwar Hussain, Kolkata V. I.T.O Wd - 43(4),kolkata, Kolkata

ITA 794/KOL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5027 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 12-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT KR KUREEL JCIT SRDR
• Assessee Lawyers: S L KOCHAR; ANIL KUMAR ARS
• Section: 143(3); 133(6); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI N.V.VASUSDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 794 / KOL / 2013 ASSESSMENT YEAR :2009-10 SYED ANWAR HUSSAIN, C/O S.L.KOCHAR, ADVOCATE, 86, CANNING STREET, KOLKATA-700001 [ PAN NO.ABCPH 4580 P ] V/S . ITO WARD-43(4), 3 GOVT. PLACE WEST, KOLKATA /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI S.L.KOCHAR, & SHRI ANIL KUMAR, ARS /BY RESPONDENT SHRI RAJAT KR KUREEL, JCIT-SR-DR /DATE OF HEARING 03-03-2016 /DATE OF PRONOUNCEMENT 09-03-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER O F COMMISSIONER OF INCOME TAX (APPEALS)-XXX, KOLKATA IN APPEAL NO.265/ CIT(A)-XXX/WD-43(4)/ 2011-12 DATED 28.01.2013. ASSESSMENT WAS FRAMED BY ITO WARD-43(4), KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HER EINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 30.12.2011 FOR ASSESSMEN T YEAR 2009-10. SHRI S.L.KOCHAR AND SHRI ANIL KUMAR, LD. AUTHORIZED REPRESENTATIVES APPEARING ON BEHALF OF ASSESSEE AND SHRI RAJAT KRKU REEL, LD. DEPARTMENTAL REPRESENTATIVE APPEARING ON BEHALF OF REVENUE. 2. AT THE TIME OF HEARING, LD. AR FRANKLY STATED TH AT HE HAS BEEN INSTRUCTED BY ASSESSEE NOT TO PRESS GROUNDS 3, 6 & 7, HENCE, W E DISMISS THE SAME AS NOT PRESSED. ITA NO.794/KOL/2013 A.Y. 2009-10 SYED ANWAR HUSSAIN V. ITO WD-43(4), KOL. PAGE 2 3. NEXT COMMON ISSUE RAISED BY ASSESSEE IN GROUNDS NO. 2, 4 AND 5 ARE HEARD AND CLUBBED TOGETHER FOR THE SAKE OF CONVENIE NCE TO PASS A CONSOLIDATED ORDER. COMMON ISSUE ARE THAT LD. CIT(A) ERRED IN CONFIRMIN G THE ACTION OF ASSESSING OFFICER BY DISALLOWING THE COMMISSION EXPENSE AND F REIGHT CHARGES ON ACCOUNT OF VIOLATION OF TAX DEDUCTED AT SOURCE (TDS ) PROVISION. 4. FACTS IN BRIEF ARE THAT ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF EXPORT. DURING THE YEAR, ASSESSEE HAS CLAIMED COMMISSION EXPENSE FOR 35,10,178 (4,12,256/ PLUS 30,97,922/-) AND FREIGHT CHARGE OF 8,14,053/-. DURING THE COURSE OF ASSESSMENT PROCEE DINGS, AO OBSERVED THAT ASSESSEE HAS FAILED TO DEDUCT TDS U/S 194H AND 194C OF THE ACT RESPECTIVELY. THEREFORE, AO DISALLOWED THE SAME AND ADDED BACK TO THE INCOME OF ASSESSEE. 5. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A) WHO CONFIRMED THE ACTION OF AO. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) ASSESSE E PREFERRED SECOND APPEAL BEFORE US. 6. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. BEFORE US LD. AR SUBMITTED THAT THERE IS AN AMENDMENT U/S 40(A)(IA) OF THE ACT WHICH WAS BROUGHT BY THE FINAN CE ACT, 2012. AS PER THE AMENDED PROVISION, IF THE RECIPIENT OF THE ABOVE AM OUNT DECLARED THE INCOME TAX IN ITS RETURN THEN THE DISALLOWANCE CANNOT BE M ADE. ACCORDINGLY, LD AR PRAYED TO BENCH TO RESTORE THE MATTER TO THE FILE O F AO FOR FRESH ADJUDICATION AND REVERSE THE ORDERS OF AUTHORITIES BELOW. ON THE CONTRARY, LD DR VEHEMENTLY RELIED ON THE ORDERS OF AUTHORITIES BELO W. 6.1 FROM THE AFORESAID DISCUSSION WE FIND THAT ON T HE SIMILAR FACTS AND CIRCUMSTANCE THIS HONBLE TRIBUNAL IN THE CASE OF VAS ELECTRONICS V. ACIT IN ITA NO. 662/KOL/2013 DATED 24.11.2015 RESTORED THE FILE TO THE AO FOR F RESH ITA NO.794/KOL/2013 A.Y. 2009-10 SYED ANWAR HUSSAIN V. ITO WD-43(4), KOL. PAGE 3 ADJUDICATION IN THE LIGHT OF AMENDED PROVISIONS OF THE ACT. THE RELEVANT EXTRACT OF THE ORDER IS REPRODUCED BELOW:- 5. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. WE ARE INCLINED TO SET A SIDE THE ISSUE TO THE FILE OF THE AO AND ACCORDINGLY, WE DIRECT THE AO TO VERIFY WHETHER THE RECIPIENTS HAVE INCLUDED THE INCOME IN THEIR RESPECTIVE RETURN S AND ALSO PAID TAXES ON THE SAME. THE ASSESSEE WILL PROVIDE THE DETAILS OF RECIPIENTS I.E, THEIR ASSESSMENT PARTICULARS ETC., TO THE AO SO THAT THE AO CAN VERIFY. IN CASE THE RECIPIENT PARTIES ARE NOT COOPERATING IN PROVIDING DETAILS, THE AO CAN CALL FOR THE INFORMATION U/S 133(6) OF THE ACT FOR VERIFICAT ION OF THE SAME. ACCORDINGLY, THIS ISSUE IS REMITTED BACK TO THE FIL E OF AO TO DECIDE IN TERMS OF THE ABOVE DIRECTIONS. THIS ISSUE OF ASSESSEES APPE AL IS ALLOWED FOR STATISTICAL PURPOSES. TAKING A CONSISTENT VIEW OF THE MATTER IN THE CASE OF VAS ELECTRONICS (SUPRA) WE RESTORE THE MATTER TO THE FILE OF AO WITH THE DI RECTION TO ADJUDICATE THE MATTER AFRESH AS PER LAW IN THE LIGHT OF AMENDED PR OVISIONS OF FINANCE ACT 2012. IT IS NOT NEEDLESS TO MENTION THAT ASSESSEE S HOULD CO-OPERATE IN THE ASSESSMENT PROCEEDINGS. IN THIS REGARD, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSE ORDER PRONOUNCED IN THE OPEN COURT 09/03/2016 SD/- SD/- (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 09 / 03 /201 6 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANTSYED ANWAR HUSSAIN, C/O S.L.KOCHAR, ADVOC ATE, 86, CANNING ST.KOL-1 2. /RESPONDENT-ITO WD-43(4), 3 GOVT. PLACE, WEST, KOLK ATA 3. ) *+ , , - / CONCERNED CIT KOLKATA 4. , , -- / CIT (A) KOLKATA 5. 012 33*+, , *+ , / DR, ITAT, KOLKATA 6. 267 89 / GUARD FILE. BY ORDER/ , , /TRUE COPY/ / , *+ ,