Rajendra Kumar Rathi, Kolkata V. ITO, WD-33(1), KOLKATA, Kolkata

ITA 862/KOL/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6213 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 28-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHARJEE CIT LD
• Assessee Lawyers: D C MODAK LD
• Section: 40A(3); 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : D BE NCH, KOLKATA BEFORE : SHRI P.M. JAGTAP, ACCOUNTANT MEMB ER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO. 862/KOL/2016 A.Y 2010-11 RAJENDRA KUMAR RATHI VS. INCOME TAX OFFICER PAN: ACQPR5536 WARD 33(1), KOLKATA [APPELLANT ] [RESPONDENT ] APPELLANT/ ASSESSEE BY : SHRI D.C. MODAK, LD. AR RESPONDENT/ DEPARTMENT BY : SHRI A. BHATTACHA RJEE, ADDL.CIT, LD.SR.DR DATE OF HEARING : 12-04-2018 DATE OF PRONOUNCEMENT : 04-07-2018 ORDER SHRI S.S.VISWANETHRA RAVI, JM: THE ABOVE APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DT. 29- 02-2016 OF THE CIT-A, 9, KOLKATA FOR THE A.Y 2010- 11. 2. GROUND NOS. 1 TO 4 ARE RELATING TO CONFIRMATION OF DISALLOWANCE OF RS.25 LAKHS MADE ON ACCOUNT OF VIOLATION OF PROV ISIONS OF SECTION 40A(3) OF THE ACT. 3. BRIEF FACT OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS OF COMMISSION AGENT, SERVIC ING, TRADING & TRAVEL AGENCY. THE ASSESSEE FILED HIS RETURN OF INC OME FOR THE A.Y UNDER CONSIDERATION ON 13-10-2010 DISCLOSING RS. N IL. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO FOUND THAT THE ASSESSEE MADE PAYMENTS WITHOUT DEDUCTING TDS AND AS SUCH DIS ALLOWED AN AMOUNT OF RS. 25 LAKHS BY INVOKING THE PROVISIONS O F SECTION 40A(3) OF THE ACT. 4. BEFORE THE CIT-A, IT WAS CONTENDED BY ASSESSEE T HAT THE AMOUNT OF RS. 25 LAKHS WAS CASH TRADE ADVANCE PAID TO M/S. SONAM TROPHEL, BHUTAN FOR CONDUCTING TOUR OPERATIONS IN B HUTAN ON BEHALF OF ITA NO.862/KOL/2016 RAJENDRA KUMAR RATHI 2 THE ASSESSEE. THE CIT-A DID NOT CONSIDER THIS SUBMI SSION OF ASSESSEE. BUT, HE CONFIRMED THE SAME AS MADE BY THE AO ON THI S ISSUE. 5. THE LD. AR REITERATED HIS SAME SUBMISSIONS AS M ADE BEFORE THE AO AND CIT-A. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDERS OF THE AO/CIT-A. 6. HEARD RIVAL SUBMISSIONS AND PERUSED THE RECORD. IT IS NOTICED FROM AOS ORDER AT PAGE-3 THAT THE ASSESSEE MADE SU BMISSIONS THAT HE MADE AN ADVANCE PAYMENT OF RS. 25 LAKHS TO M/S. SONAM TROPHEL, BHUTAN FOR CONDUCTING TOURS IN BHUTAN ON BEHALF OF ASSESSEE, WHICH WERE RELEASED BY PHASE BY PHASE ON FOUR OCCASION ON DIFFERENT DATES TO THE SAID ENTITY. IT IS CLEAR FROM THE ORDER OF THE CIT-A THAT THE ASSESSEE MADE SAME SUBMISSION REGARDING THE PAYMENT OF ADVANCE TO M/S. SONAM TROPHEL AND THE SAME WERE RELEASED P HASE BY PHASE TO THE SAID ENTITY. THE CIT-A DID NOT DISPUTE THE SAME. WE FIND THAT BOTH THE AUTHORITIES BELOW DID NOT DISPUTE THE RECE IPT OF ADVANCE FOR THE PURPOSE OF CONDUCTING THE TOURS ON BEHALF OF AS SESSEE BY THE SAID ENTITY IN BHUTAN. WE FIND THAT THE AMOUNTS OF RS.7, 50,000/- WERE RELEASED ON 30-12-09 AND 13-01-2010 AND RS. 5,00,00 0/- WERE RELEASED ON 04-02-2010 AND 06-03-2010 RESPECTIVELY. HOWEVER, THE ALLEGATION OF AUTHORITIES BELOW WAS THAT THE PAYM ENTS MADE IN CASH EXCEEDING THE MONETARY LIMIT PRESCRIBED U/S. 40A(3) . SINCE THE PROVISIONS OF SECTION 40A(3) ARE APPLICABLE ONLY WH EN PAYMENT OF EXPENSES IS MADE IN CASH IN THE SUM EXCEEDING RS. 2 0,000/- AND NOT TO THE PAYMENT OF ADVANCES, WE ARE OF THE VIEW THAT ADDITION MADE U/S. 40A(3) IS TOTALLY UNWARRANTED. THE SAME IS AC CORDINGLY DELETED & GROUND NOS. 1 TO 4 ARE ALLOWED. 7. REGARDING GROUND NO. 5, THE LD. AR SUBMITS THAT THE ASSESSEE IS NOT INTENDED TO PROSECUTE THIS GROUND OF ASSESSE ES APPEAL. HENCE, THE SAME IS DISMISSED AS NOT PRESSED. ITA NO.862/KOL/2016 RAJENDRA KUMAR RATHI 3 8. GROUND NO. 6 IS RELATING TO CONFIRMATION OF ADDI TION OF RS. 1,53,118/- MADE U/S. 40A(3) OF THE ACT. 9. AFTER HEARING BOTH THE PARTIES, WE FIND THAT THE DETAILS RELATING TO THIS ISSUE WERE NOT SUBMITTED EITHER BEFORE THE AO OR THE CIT-A. BEFORE US THE LD. AR SUBMITS THAT NOW HE IS READY T O PRODUCE THE SAME BEFORE THE AO, IF THE TRIBUNAL PLEASES TO REMA ND THE ISSUE TO THE FILE OF THE AO FOR HIS VERIFICATION. IN VIEW OF THE SAME, WE REMAND THE ISSUE TO THE FILE OF AO FOR HIS FRESH VERIFICAT ION. THE ASSESSEE IS AT LIBERTY TO FILE NECESSARY EVIDENCES, IF ANY, TO SUB STANTIATE HIS CLAIM AND CONTENTION. GROUND NO. 6 RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 04-07-2018 SD/- SD/- P.M. JAGTAP S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : -07-2018 **PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT/ASSESSEE: M/S. R AJENDRA KUMAR RATHI, 6 PRETORIA STREET, KOLKATA 700 071. 2 RESPONDENT/DEPARTMENT: INCOME TAX OFFICER, WARD 33( 1), KOLKATA, 10B MIDDLETON ROW, 3 RD FLOOR, KOLKATA-700 071. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER SR.P.S,H.O.O, ITAT.K OL