Sri Harihar Roy, Burdwan V. CIT,Burdwan, Burdwan

ITA 844/KOL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83070 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2014
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 04-08-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 25-05-2012
• Court: TRIBUNAL
• Department Lawyers: RAVI JAIN
• Assessee Lawyers: J M THARD
• Section: 143(3); 194C; 263

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE , /AND , ! ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI SHAMIM YAHYA, AM] ' / I.T.A NO.844/KOL/2012 #$ %&/ ASSESSMENT YEAR: 2007-08 SHRI HARIHAR ROY VS. COMMISSIONER OF INCOME-TA X, BURDWAN (PAN: ADKPR7895P) (() /APPELLANT ) (*+()/ RESPONDENT ) DATE OF HEARING: 07.08.2014 DATE OF PRONOUNCEMENT: 11.08.2014 FOR THE APPELLANT: SHRI J. M. THARD, ADVOCATE FOR THE RESPONDENT: SHRI RAVI JAIN, CIT / ORDER PER SHRI MAHAVIR SINGH, JM : THIS APPEAL BY ASSESSEE IS ARISING OUT OF REVISION ORDER OF CIT, BURDWAN IN M. NO. R- 31/09/CIT/BWN2011-12/3601-3603 DATED 26/27.03.2012. ASSESSMENT WAS FRAMED BY ACIT, CIRCLE-2, BURDWAN U/S. 143(3) OF THE INCOME-TAX ACT , 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2007-08 VIDE HIS ORDER DA TED 18.12.2009. 2. THE ONLY ISSUE IN THIS APPEAL OF THE ASSESSEE IS AGAINST THE ORDER OF CIT PASSED U/S. 263 OF THE ACT, REVISING THE ASSESSMENT FRAMED BY AO U/ S. 143(3) OF THE ACT, FOR NON-DEDUCTION OF TDS U/S. 194H OF THE ACT ON COMMISSION PAYMENTS, U/ S. 194C OF THE ACT ON TRANSPORTATION CHARGES, U/S. 194A OF THE ACT ON INTEREST AND U/S. 194-I OF THE ACT ON RENT. 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE HAS TAKEN THE ISSUE THAT IN VIEW OF THE PROVISIONS OF SECTIONS 194H, 194C, 194A AND 194 -I OF THE ACT THAT THE ASSESSEE IS NOT LIABLE TO AUDIT OF ACCOUNTS IN CLAUSE (A) OR (B) OF SECTIO N 44AB OF THE ACT DURING THE FINANCIAL YEAR IMMEDIATELY PRECEDING THE FINANCIAL YEAR IN WHICH S UCH SUM IS CREDITED OR PAID. LD. COUNSEL DREW OUR ATTENTION TO GROUND NO. 5, WHICH READS AS UNDER: 5. WIHTOUT PREJUDICE TO THE FOREGOING GROUNDS, THE LD. CIT ERRED IN HOLDING THAT THE APPELLANT WAS LIABLE TO DEDUCT TAX AT SOURCE (TDS) FROM CERTAIN EXPENSES INASMUCH AS IN THE IMMEDIATELY PRECEDING YEAR I.E. ASST. YR. 20 06-07. THE COMMISSION RECEIVED OF THE APPELLANT WRE BELOW RS.40,00,000/- AND HENCE TH E APPELLANT BEING AN INDIVIDUAL WAS NOT OBLIGED TO DEDUCT TAX AT SOURCE IN THIS YEA R IN VIEW O THE PROVISIONS OF SEC. 194(1) READ WITH EXPLN. I)(1) OF THE ACT. 2 ITA NO.844/K/2012 SHRI HARIHAR ROY AY 2007-08 WHEN THIS WAS CONFRONTED TO LD. CIT, DR, HE STATED THAT HE IS NOT AWARE WHETHER IN THE IMMEDIATELY PRECEDING YEAR THERE WAS A TAX AUDIT OR NOT IN THE CASE OF THE ASSESEE. ON THIS, LD. COUNSEL FOR THE ASSESEE SHRI J. M. THARD MADE A STA TEMENT AT BAR THAT DURING THE FINANCIAL YEAR IMMEDIATELY PRECEDING THE FINANCIAL YEAR IN WHICH SUCH SUM IS CREDITED OR PAID, THE ASSESSEES ACCOUNTS ARE NOT LIABLE TO AUDIT UNDER ANY OF THE P ROVISIONS OF THIS ACT. LD. COUNSEL MADE A CATEGORICAL STATEMENT AND ON THIS, LD. CIT, DR CONC EDED THAT IN CASE THE ACCOUNTS OF IMMEDIATELY PRECEDING ASSESSMENT YEAR ARE NOT LIABL E TO AUDIT THEN ASSESSEE IS NOT LIABLE TO TDS IN ANY CASE. IN SUCH CIRCUMSTANCES, WE FEEL THAT T HE VERY BASIS OF REVISION PROCEEDING GOES. THE REVISION PROCEEDINGS WERE CARRIED OUT ONLY ON T HE BASIS THAT THE TDS ON ACCOUNT OF PAYMENT LIKE TRANSPORTATION CHARGE, INTEREST, RENT AND COMMISSIOIN WAS NOT DEDUCTED BY ASSESSEE AND CLAIMED THESE EXPENSES IN HIS RETURN O F INCOME. WE FIND THAT ONCE THE ASSESSEE IS NOT LIABLE TO DEDUCT TDS IN THE RELEVANT ASSESSMENT YEAR, NO REVISION PROCEEDINGS ON THAT PRETEXT CAN BE CARRIED OUT. HENCE, WE QUASH THE RE VISION ORDER PASSED BY CIT U/S. 263 OF THE ACT AND APPEAL OF ASSESSEE IS ALLOWED. 4. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. 5. ORDER IS PRONOUNCED IN THE OPEN COURT 11.08.2014 SD/- SD/- , ! , (SHAMIM YAHYA ) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 11TH AUGUST, 2014 ,- #./ 0 JD.(SR.P.S.) 1 *2 3 2%4- COPY OF THE ORDER FORWARDED TO: 1 . () / APPELLANT SHRI HARIHAR ROY, SUBHASHPALLY ROAD, SH YAM SAYER (N), BURDWAN-713 146. 2 *+() / RESPONDENT CIT, BURDWAN 3 . # ( )/ THE CIT(A), 4. 5. # / CIT 2:; *# / DR, KOLKATA BENCHES, KOLKATA +2 */ TRUE COPY, #