M/s ITT Shippping Pvt Ltd, Kolkata V. D.C.I.T Cir - 9,kolkata, Kolkata

ITA 854/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100201 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 18-04-2013
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Assessee Lawyers: N O N E
• Keywords: Retrospective amendment
• Section: 143(3); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI M. BALAGANES H, AM] I.T.A NO.854/KOL/2013 ASSESSMENT YEAR: 2009-10 M/S. I T T SHIPPING PVT. LTD. VS. DEPUTY COMMISS IONER OF INCOME-TAX, (PAN: AAACI5499Q) CIRCLE-9, KOLKATA. ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 27.11.2015 DATE OF PRONOUNCEMENT: 04.12.2015 FOR THE APPELLANT: N O N E FOR THE RESPONDENT: SMT. RANU BISWAS, JCIT ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-VIII, KOLKATA IN APPEAL NO.95/CIT(A)-VIII/KOL/11-12 DATED 22.01.2013. ASSES SMENT WAS FRAMED BY DCIT, CIRCLE-9, KOLKATA U/S. 143(3) OF THE INCOME-TAX ACT , 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2009-10 VIDE HIS ORDER DA TED 21.09.2011. 2. THE FIRST ISSUE IN THIS APPEAL OF ASSESSEE IS AG AINST THE ORDER OF CIT(A) CONFIRMING THE ADDITION MADE BY AO ON ACCOUNT OF DIFFERENCE IN SUNDRY DEBTORS BALANCE. FOR THIS, ASSESSEE HAS RAISED FOLLOWING GROUND NO. 2: 2. FOR THAT THE ASSESSEE TOOK A BILL AMOUNTING TO RS.7,77,459/- IN EXCESS BUT THE PARTY, M/S. RAJU ENTERPRISE, DID NOT TAKE THE BILL AMOUN T IN ITS LEDGER. THE DIFFERENCE IS IN PURCHASE. THE ADDITION IS REQUESTED TO BE MADE ON N. P. WITH THE TOTAL INCOME OF THE ASSESSEE. 3. WE HAVE HEARD LD. DR AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT AN INSPECTION WAS MADE IN THE PREMISES OF M/S. RAJU ENTERPRISES, A PARTY OF THE ASSESSEE FROM WHERE IT WAS FOUND THAT THE ASSESSEE S ACCOUNTS WAS DEBITED BY A SUM OF RS.2,39,948/- I.E. SUNDRY DEBTOR WAS DECLARED BY AS SESSEE FOR THIS AMOUNT. ON THE CONTRARY, THE AO DURING THE COURSE OF SCRUTINY PROC EEDING NOTED THAT IN THE ASSESSEES ACCOUNTS THE PARTY IS SHOWN AS CREDITOR TO THE EXTE NT OF RS.10,17,407/-. ACCORDING TO AO, NO REPLY WAS FILED BY THE ASSESSEE. HENCE, HE MADE ADDITION OF THE DIFFERENTIAL AMOUNT. THE CIT(A) CONFIRMED THE ADDITION BECAUSE ACCORDING TO HIM, ASSESSEE ADMITTED THAT THE ADDITION CAN BE MADE ON THE PROFIT. AGGRIEVED, NOW ASSESSEE IS IN APPEAL BEFORE US. 2 ITA NO.854/K/2013 ITT SHIPPING PVT. LTD. AY 2009-10 4. WE FIND FROM THE ABOVE FACTS THAT PRIMARILY THER E IS DIFFERENCE IN THE BALANCE OF BOTH THE PARTIES. THE ASSESSEE CLAIMED BEFORE THE LOWER AUTHORITIES THAT IT HAS TAKEN BILL ISSUED BY RAJU ENTERPRISES IN ITS ACCOUNT AND ACCOU NTED FOR THE SAME. BUT THAT PARTY M/S. RAJU ENTERPRISES HAS NOT INCLUDED THE SAME IN ITS A CCOUNTS. THE ASSESSEE FILED RECONCILIATION BEFORE THE CIT(A) BUT WAS NOT CONSID ERED. IN VIEW OF THE ABOVE FACTS, WE FEEL THAT THE ISSUE NEEDS RE-EXAMINATION. HENCE, WE SET ASIDE THIS ISSUE TO THE FILE OF AO AND ALLOW ONE MORE OPPORTUNITY TO THE ASSESSEE TO E XPLAIN HIS CASE. ACCORDINGLY, THIS ISSUE OF ASSESSEES APPEAL IS ALLOWED FOR STATISTIC AL PURPOSES. 4. THE NEXT ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) CONFIRMING THE DISALLOWANCE OF REPAIR AND MAINTENANCE CHARGES PAID TO KOLKATA PORT TRUST (KPT) WITHOUT DEDUCTION OF TDS U/S. 194C OF THE ACT THERE BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT AMOUNTING TO RS.25,39,726/-. WE FIND FROM THE ASSESSMENT ORDER THAT ACCORDING TO AO, THE ASSESSEE HAS NOT DEDUCTED TDS ON THE FOLLOWING PAYMENTS MADE TO KPT: SL. NO. NAME OF THE PARTY ACCOUNT HEAD AMOUNT FOR W HICH TDS NOT DEDUCTED 1. 2. 3. 4. RE ENGG WORKS T. HOSSAIN PROJECT (P) LTD. KOLKATA PORT TRUST ITTPL SHIP MAINTENANCE SHIP REPAIRING DRY DOCK EXPENSES CPT CHARGES TOTAL RS. 93,462/- RS. 18,00,000/- RS.18,76,299/- RS. 4,69,965/- RS.25,39,726/- THE CIT(A) ALSO CONFIRMED THE ACTION OF AO DESPITE THE FACT THAT THE ASSESSEE PLEADED THAT IN VIEW OF THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANSAL LAND MARK TOWNSHIP (P) LTD., ITA NOS. 160 & 161/201 5 DATED 26.08.2015, WHEREIN IT HAS BEEN HELD AS UNDER: NO S. 40(A)(IA) DISALLOWANCE FOR FAILURE TO DEDUCT TDS ON PAYMENT IF PAYEE HAS OFFERED AMOUNT TO TAX. SECOND PROVISO TO S. 40(A)(I A) INSERTED BY FINANCE ACT 2013 W.E.F. 1.4.2013 SHOULD BE TREATED AS CURATIVE AND T O HAVE RETROSPECTIVE EFFECT FROM 1.4.2005. ITAT PRAISED FOR 'THOROUGH ANALYSIS' OF T HE PROVISION 5. IN VIEW OF THE ABOVE, THE ISSUE NEEDS TO BE SET ASIDE TO THE FILE OF AO. ON QUERY FROM THE BENCH, LD. SR. DR HAS NOT OBJECTED TO THE PROPOSAL. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE ARE OF THE CONSIDERED VIEW TH AT LET THE AO EXAMINE THE DETAILS OF RECIPIENTS OF PAYMENTS, WHICH ARE TO BE FILED BY AS SESSEE AND IN CASE THESE RECEIPTS ARE INCLUDED IN THEIR RESPECTIVE RETURN OF INCOME AND P AID TAXES THEREON, THE AO WILL DELETE THE 3 ITA NO.854/K/2013 ITT SHIPPING PVT. LTD. AY 2009-10 DISALLOWANCE MADE U/S. 40(A)(IA) OF THE ACT IN VIEW OF THE DECISION IN THE CASE OF ANSAL LAND MARK TOWNSHIP (P) LTD., SUPRA. THIS ISSUE OF ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, ALL THE APPEALS OF REVENUE ARE DI SMISSED. 7. ORDER IS PRONOUNCED IN THE OPEN COURT ON 04.12.2 015. SD/- SD/- (M. BALAGANESH) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 04TH DECEMBER, 2015 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT M/S. ITT SHIPPING PVT. LTD., 623, 6 TH FLOOR, 4, FAIRLIE PLACE, KOLKATA-01. 2 RESPONDENT DCIT, CIRCLE-9, KOLKATA. 3 . THE CIT(A), KOLKATA 4. 5. CIT KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .