D.C.I.T Cir - 11,Kolkata., Kolkata V. M/s B.S.Sea Foods Pvt Ltd, North 24 Parganas

ITA 817/KOL/2013

• Counselvise Citation: 81723514 RSA 2013
• Duration Of Justice: 2 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 12-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K BISWAS JCIT SRDR
• Assessee Lawyers: SAUBARATA KOLEY; B N ROY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND SHRI N.V.VASUDEVAN, JUDICIAL MEMBER ITA NO.817/KOL/2013 ASSESSMENT YEAR:2009-10 DCIT, CIRCLE-11, P-7, CHOWRINGHEE SQURE, KOLKATA 700 069 / V/S . M/S B.S.SEA FOODS PVT. LTD. 17, JESSORE ROAD NORTH, UDAYRAIPUR MADHYAMGRAM, BARASAT, 24 PARGANAS (N) 700 129 [ PAN NO.AABCB 1898 B ] /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI M.K.BISWAS, JCIT SR-DR /BY RESPONDENT SHRI B.N.ROY, ADVOCATE & SHRI SAUBARATA KOLEY, ACA /DATE OF HEARING 20-10-2015 /DATE OF PRONOUNCEMENT 20-10-2015 /O R D E R PER P.M.JAGTAP, ACCOUNTANT MEMBER:- THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST TH E ORDER OF CIT(A)-XII, KOLKATA DATED 19.12.2012 AND IN THE SOLITARY GROUND RAISED THEREIN, THE REVENUE HAS CHALLENGED THE ACTION OF THE CIT(A) IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER U/S 40(A)(IA) OF THE INCOME TAX A CT TO THE EXTENT OF RS.10 LAKH FOR THE DELAY ON THE PART OF ASSESSEE IN THE P AYMENT OF TAX DEDUCTED AT SOURCE. 2. THE ASSESSEE IN THE PRESENT IS A COMPANY WHICH F ILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 29.09.2009DECLA RING TOTAL INCOME OF ITA NO.817/KOL/2013 A.Y. 2009-10 DCIT CIR-11,KOL. V. M/S B.S. SEA FOODS PVT. LTD . PAGE 2 RS.6,72,051/-. IN THE ASSESSMENT COMPLETED U/S. 143 (3) OF THE ACT VIDE ORDER DATED 14.12.2011, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT RS.1,60,59,327/- AFTER MAKING ADDITION INTER ALIA ON ACCOUNT OF DISALLOWANCE U/S 40(A)(IA) OF THE ACT AMOUNTING TO RS.33 LAKH FOR TH E DELAY ON THE PART OF THE ASSESSEE IN MAKING PAYMENT OF TAX DEDUCTED AT SOURC E FROM THE LABOUR CHARGES PAID TO TWO PARTIES NAMELY M/S S. ENTERPRISE (P) LTD. AND M/S Z.A. FOOD PRODUCTS. ON APPEAL, THE CIT(A) DELETED THE SAID DI SALLOWANCE AFTER HAVING FOUND THAT THE TAX DEDUCTED AT SOURCE FROM THE RELE VANT PAYMENTS MADE BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION WAS PA ID BY THE ASSESSEE BEFORE DUE DATE OF FILING OF RETURN FOR THE YEAR UNDER CON SIDERATION. THIS RELIEF GIVE BY THE CIT(A) IS DISPUTED BY THE REVENUE TO THE EXTENT OF RS.10 LAKH ON THE GROUND THE CORRESPONDING TAXES HAVING BEEN DEDUCTED FROM T HE SAID PAYMENTS PRIOR TO MARCH, 2009, ASSESSEE WAS REQUIRED TO DEPOSIT THE S AME WITHIN THE PREVIOUS YEAR UNDER CONSIDERATION. 3. WE HAVE HEARD ARGUMENTS OF BOTH THE SIDES AND AL SO PERUSING THE RELEVANT RECORDS. IT IS OBSERVED THAT THE ISSUE INVOLVED IN THIS APPEAL OF THE REVENUE IS SQUARELY COVERED BY THE DECISION OF HON'BLE JURISDI CTIONAL HIGH COURT IN THE CASE OF CIT V. VIRGIN CREATIONS (ITAT NO. 302 OF 2011) GA 3200/2011 DATED 23.11.2011, WHEREIN IT WAS HELD THAT THE TAX DEDUCT ED AT SOURCE BY THE ASSESSEE DURING THE PERIOD FROM APRIL 2005 TO MARCH 2006 HAV ING BEEN PAID WELL BEFORE THE DUE DATE OF FILING THE RETURN INCOME FOR THE RE LEVANT YEAR, THE DISALLOWANCE MADE BY THE ASSESSING OFFICER U/S 40(A)(IA) OF THE ACT WAS NOT JUSTIFIED KEEPING IN VIEW THE FIRST PROVISO TO SEC. 40(A)(IA) AS AMEN DED BY THE FINANCE ACT, 2000 W.E.F. 01.04.2010, WHICH IS APPLICABLE RETROSPECTI VELY. FOR THIS CONCLUSION, HON'BLE JURISDICTIONAL HIGH COURT RELIED ON THE DEC ISION OF HON'BLE SUPREME COURT IN THE CASE OF ALLIED MOTORS PVT. LTD., 224 ITR 677 (SC) AND IN THE CASE OF ALOM EXTRUSIONS LTD., . 319 ITR 306 (SC). RESPECTFULLY FOLLOWING THE SAID DECISIONS OF HON'BLE SUPREME COURT AS WELL AS THE D ECISION OF HON'BLE ITA NO.817/KOL/2013 A.Y. 2009-10 DCIT CIR-11,KOL. V. M/S B.S. SEA FOODS PVT. LTD . PAGE 3 JURISDICTIONAL HIGH COURT IN THE CASE OF VIRGIN CREATIONS (SUPRA), WE UPHOLD THE IMPUGNED ORDER OF CIT(A) DELETING THE ADDITION OF R S.10 LAKH MADE BY AO U/S. 40(A)(IA) OF THE ACT AND DISMISS THE APPEAL OF REVE NUE. 4. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 20/10/2015 SD/- SD/- (N.V.VASUDEVAN) (P.M.JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBE R *DKP ! - 20/10/2015 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-DCIT, CIRCLE-11, P-7, CHOWRINGHEE SQUARE , KOL-69 2. /RESPONDENT-B.S.SEA FOODS PVT. LTD., 17, JESSORE RO AD, NORTH, UDAYRAIPUR MADHYAMGRAM, BA RASAT, 24 PGS.(N) 700 129 3. '# % / CONCERNED CIT 4. % - / CIT (A) 5. &'( ))'# , '# / DR, ITAT, KOLKATA 6. (*+ / GUARD FILE. BY ORD ER/ , /TRUE COPY/ / '#,