Rakshit Transpost, Burdwan V. CIT-Burdwan, Burdwan

ITA 809/KOL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3175 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2013
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 21-05-2012
• Court: TRIBUNAL
• Department Lawyers: A K MAHAPATRA
• Section: 194C; 263

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE . . . . . . . . , !' /AND ##$ %& %& %& %&, , , , ) [BEFORE SHRI K. K. GUPTA, AM & SHRI GEORGE MATHAN, JM] '' '' '' '' / I.T.A NO. 809/KOL/2012 (&) !*+ (&) !*+ (&) !*+ (&) !*+/ // / ASSESSMENT YEAR: 2007-08 RAKSHIT TRANSPORT VS. COMMISSIONER OF INCOME-T AX, BURDWAN (PAN: AAGFR5242K) (%- /APPELLANT ) (./%-/ RESPONDENT ) DATE OF HEARING: 22.05.2013 DATE OF PRONOUNCEMENT: 22.05.2013 FOR THE APPELLANT: SHRI SOUMITRA CHOUDHURY, ADVOCATE FOR THE RESPONDENT: SHRI A. K. MAHAPATRA, CIT(DR) 0 / ORDER PER SHRI GEORGE MATHAN, JM: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER PASSED U/S. 263 BY THE CIT, BURDWAN IN MEMO NO. R-31/06/BWN/2011-12/3604-3606 D ATED 20/27.03.2012 FOR ASSESSMENT YEAR 2007-08. 2. SHRI SOUMITRA CHOUDHURY, ADVOCATE APPEARED ON B EHALF OF ASSESSEE AND SHRI A. K. MAHAPATRA, CIT(DR) APPEARED ON BEHALF OF REVENUE. 3. IN ASSESSEES APPEAL THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. FOR THAT ON THE FACTS OF THE CASE THE ORDER PAS SED U/S. 263 BY THE LD. C.I.T., BURDWAN IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 2. FOR THAT ON THE FACTS OF THE CASE THE LD. C.I.T. , BURDWAN WAS WRONG IN PASSING THE ORDER U/S. 263 WITHOUT CONSIDERING THE FACTS THAT T HE A.O. HAS CONSIDERED THE TOTAL PAYMENT OF TRANSPORTATION CHARGES AMOUNTING TO RS.1 ,20,52,564/- AND HAS DISALLOWED RS.24,10,512/-, THEREFORE, THE ORDER PASSED U/S. 26 3 IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 3. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T ., BURDWAN WAS WRONG IN NOT CONSIDERING THE FACT THAT THE DISALLOWANCE U/S.40A(IA) OF THE I .T.ACT ON TRANSPORTATION CHARGES IS PENDING BEFORE C.I.T.(A), BURDWAN, THEREFORE, ON SI MILAR ISSUE ORDER PASSED U/S. 263 IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGA1. 2 ITA NO.809/K/2012 RAKSHIT TRANSPORT, AY 2007-08 4. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T ., BURDWAN SHOULD HAVE CONSIDER THE FACT THAT THE ASSESSEE WAS NOT LIABLE TO DEDUCT TDS UNDE R SECTION 194C OF THE INCOME TAX ACT, THEREFORE, NO DISA1LOWANCE U/S. 40A(IA) SHOULD HAVE BEEN MADE BY THE LD. C.I.T. WHICH IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 5. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T ., BURDWAN WAS WRONG IN NOT CONSIDERING THE FACT THAT THE DISA1LOWANCE U/S. 40A(IA) WOULD H AVE UTMOST BE MADE ON AMOUNTS PAYABLE, AND NOT THE AMOUNT ALREADY PAID, THEREFORE , THE ORDER U/S. 263 IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 6. FOR THAT THE APPELLANT RESERVES THE RIGHT TO ADD UCE ANY FURTHER GROUND OR GROUNDS, IF NECESSARY, AT OR BEFORE THE HEARING OF THE APPEAL. 4. IT WAS SUBMITTED BY LD. AR THAT THE ASSESSEE IS IN THE BUSINESS OF TRANSPORTATION. IT WAS THE SUBMISSION THAT FOR THE AY 2006-07 THE ASSESSEE HAD FILED ITS RETURN OF INCOME ON 25.10.2007. IT WAS THE SUBMISSION THAT THE ASSESSM ENT HAD BEEN COMPLETED U/S. 143(3 ON 29.12.2009 WHEREIN THE AO HAD MADE VARIOUS ADDITION S INCLUDING THE ISSUE OF NON-DEDUCTION OF TDS IN RESPECT OF THE TRANSPORT CONTRACTORS AND THE CONSEQUENTIAL DISALLOWANCE UNDER THE PROVISIONS OF SECTION 40(A)(IA) OF THE I. T. ACT, 1 961. IT WAS THE SUBMISSION THAT SUBSEQUENTLY ON 22.02.2012 THE ASSESSEE WAS SERVED WITH A NOTICE U/S. 263 OF THE I. T. ACT, 1961 ON THE GROUND THAT THE AO HAD DISALLOWED THE TRANSPORT CHA RGES ONLY ON ESTIMATE BASIS. IT WAS THE SUBMISSION BY THE LD. AR THAT THE ISSUE OF NON-DEDU CTION OF TDS IN RESPECT OF THE TRANSPORT CHARGES HAD BEEN CONSIDERED BY THE AO IN THE COURSE OF THE ORIGINAL ASSESSMENT. THE LD. AR FURTHER DREW OUR ATTENTION TO THE COPIES OF THE ORD ER SHEET NOTINGS AT PAGES 29 TO 31 OF THE PAPER BOOK WHEREIN ON 16.11.2009, THE AO HAD SPECIFICALLY DISCUSSED THIS ISSUE OF THE TRANSPORT CHAGES PAID DIRECTLY TO THE TRUCK OWNERS AND THE RE IMBURSEMENT OF BILL BY THE ASSESSEE TO CEMENT DEALERS. IT WAS ALSO MENTIONED THAT THE DET AILS WERE PRODUCED AND WERE RANDOMLY CHECKED. IT WAS THE SUBMISSION THAT AFTER THE VERI FICATION, THE AO MADE THE DISALLOWANCE AFTER DUE APPLICATION OF MIND. THE LD. AR FURTHER DREW O UR ATTENTION TO THE ORDER PASSED U/S. 263 OF THE I. T. ACT, 1961 IN THE LAST PAGE LAST PARA WHER EIN THE LD. CIT HAS HELD THAT HE WAS OF THE CONSIDERED VIEW THAT THE INSTANT CASE NEEDS FURTHER RE-EXAMINATION AND RE-VERIFICATION. IT WAS THE SUBMISSION THAT RE-EXAMINATION AND RE-VERIFICAT ION WAS NOT AN ISSUE WHICH COULD BE DIRECTED UNDER REVISIONARY PROCEEDINGS U/S. 263 OF THE I. T. ACT, 1961. IT WAS THE SUBMISSION THAT THE ORDER PASSED U/S. 263 OF THE I. T. ACT, 1961 IS LIA BLE TO BE ANNULLED. 5. IN REPLY, THE LD. DR VEHEMENTLY SUPPORTED THE OR DER OF THE CIT. IT WAS THE SUBMISSION THAT THE AO HAD NOT DONE INDEPTH VERIFICATION OF TH E ASSESSEES CLAIM OF THE TRANSPORTATION 3 ITA NO.809/K/2012 RAKSHIT TRANSPORT, AY 2007-08 CHARGES. IT WAS THE SUBMISSION THAT THE ORDER OF T HE LD. CIT PASSED U/S. 263 OF THE I. T. ACT, 1961 IS LIABLE TO BE UPHELD. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PER USAL OF THE ASSESSMENT ORDER DATED 29.12.2009 IN THE PRESENT CASE WHICH IS THE SUBJEC T MATTER OF THE REVISION U/S. 263 OF THE I. T. ACT, 1961, IT IS NOTICED THAT THE AO HAD DONE A DET AILED EXAMINATION AND HAD APPLIED HIS MIND ON THE ISSUE OF THE DISALLOWANCE OF THE TRANSPORT C HARGES ON WHICH TDS WAS NOT ALLEGEDLY DEDUCTED. A PERUSAL OF THE ORDER SHEET NOTING RECO RDED IN THE COURSE OF ASSESSMENT ALSO CLEARLY SUPPORTS THIS VIEW. FURTHER, A PERUSAL OF THE ORDE R PASSED U/S. 263 OF THE I. T. ACT, 1961 CLEARLY SHOWS THAT THE LD. CIT HAS DIRECTED THE RE-EXAMINAT ION AND RE-VERIFICATION OF AN ISSUE WHICH IS ALREADY BEING VERIFIED AND ASSESSED BY THE AO. THE POWERS U/S. 263 OF THE I. T. ACT, 1961 CANNOT BE USED FOR DIRECTING A REVERIFICATION. ONC E AN OPINION HAS BEEN FORMED BY THE AO THE LD. CIT BY TAKING RECOURSE TO THE POWERS U/S. 263 O F THE I. T. ACT, 1961 CANNOT TAKE A STAND THAT THE EXAMINATION DONE BY THE AO WAS NOT ADEQUATE. A DEQUATE ENQUIRY IS A SUBJECTIVE ISSUE AND JUST BECAUSE THE LD. CIT FEELS THAT THE AO SHOULD H AVE DONE MORE ENQUIRIES DOES NOT MAKE IT A CASE FOR INVOKING THE POWERS U/S. 263 OF THE I. T. ACT, 1961. THIS VIEW OF OURS ALSO FINDS SUPPORT FROM THE DECISION OF THE COORDINATE BENCH O F THIS TRIBUNAL IN THE CASE OF ELITE SHOE COMPANY IN ITA NO.772/KOL/2011 DATED 22.05.2012 WHE RE UNDER SIMILAR CIRCUMSTANCES THE REVISION ORDER PASSED U/S. 263 OF THE I. T. ACT, 19 61 HAVE BEEN QUASHED. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT THE REVISION AS DIRECTED BY THE LD. CIT BY INVOKING HIS POWERS U/S. 263 OF THE I. T. ACT, 1961 CANNOT BE SUSTAINED AND CONS EQUENTLY THE SAID ORDER STANDS QUASHED. 7. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. 8. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- . . . . . . . . , ##$ %& %& %& %& , (K. K. GUPTA) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER ( 1 1 1 1) )) ) DATED : 22 ND MAY, 2013 !23 (&4# (5! JD.(SR.P.S.) 4 ITA NO.809/K/2012 RAKSHIT TRANSPORT, AY 2007-08 0 6 .((7 87*9- COPY OF THE ORDER FORWARDED TO: 1 . %- / APPELLANT RAKSHIT TRANSPORT, 18, BAHIR SARBAMANGA L ROAD, BURDWAN-713 101. 2 ./%- / RESPONDENT CIT, BURDWAN. 3 . A CIT, CIRCLE-2, BURDWAN 4. 7!>( .(& / DR, KOLKATA BENCHES, KOLKATA /7 .(/ TRUE COPY, 0&?/ BY ORDER, @ '# /ASSTT. REGISTRAR .