Smt. Kavita Kothari, Kolkata V. I.T.O. Ward(40(2), Kolkata

ITA 94/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2964 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 11-06-2019
• Assessment Year: 2007-2008
• Appeal Filed On: 21-01-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SAN JAY MUKHERJEE CIT LD
• Keywords: Set aside
• Section: 40(a)(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , C BENCH , KOLKATA BEFORE SHRI A.T, VARKEY , JM & DR. A .L. SAINI, AM ITA N O . 94 / KOL /201 9 ( ASSESSMENT YEAR : 20 07 - 08) SMT. KAVITA KOTHARI PAN: AFLPK4043B VS. I.T.O., WARD 40(2), KOLKATA ( / APPELLANT) .. ( / RESPONDENT) APPELLANT BY : NONE REVENUE BY : SHRI SAN JAY MUKHERJEE, ADDL. CIT, LD. SR.DR DATE OF HEARING : 1 1 / 0 6 /201 9 DATE OF PRONOUNCEMENT: 21 /0 8 /2019 / O R D E R PER DR. A. L. SAINI, AM : THE CAPTIONED APPEA L FILED BY THE ASSESSEE , PERTAINING TO ASSESSMENT YEAR 20 07 - 08 , IS DIRECTED AGAINST THE ORDER DATED 18 - 12 - 2018 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL) , 12, KOLKATA , WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFI CER U/S 14 3 (3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 2 2.12.2009 . 2. GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS FOLLOWS: - 1. FOR T HAT THE LD. CIT (A) ERRED IN CONFIRMING THE DISALLOWANCE UNDER SEC. 40(A)(IA) WHEN THE DEDUCTEE HAD PAID TAXES ON THE INCOME RECEIVED FROM THE APPELLANT AND FILED ITS RETURN OF INCOME AND THEREFORE THE DISALLOWANCE WAS NOT IN ACCORDANCE WITH LAW. 2. FOR THAT LD. CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF HANDLING CHARGES OF RS.47,578/ - WHEN THE SAM E WERE FULLY INCURRED FOR BUSINESS PURPOSES. 3. FOR THAT LD. CIT(A) ERRED IN CONFIRMING THE ESTIMATED DISALLOWANCE OF RS.5430/ - UNDER THE HEAD TELEPHONE EXPENSES WHEN ITA NO. 94 / KOL/2019 SMT. KAVITA KOTHARI 2 THE SAME WERE FULLY INCURRED FOR BUSINESS PURPOSES AND WERE ALLOWABLE REVENUE EXPENSES. 3. AT THE TIME OF HEARING NONE APPEARED ON BEHALF OF ASSESSEE IN SPITE OF ISSUANCE OF NOTICE FOR HEARING MORE THAN ONE OCCASIONS. THE LEARNED DEPARTMENTAL REPRESENTATIVE ( LD.DR) WAS PRESENT FOR THE APPELLANT REVENUE. IN THE ABSENCE OF ANY APPEARANCE OF THE ASSESSEE, THE APPEAL IS BEING DISPOSED OF EX PARTE QUA THE ASSESSE AFTER HEARING THE LD. DR FOR THE REVENUE ON MERITS IN TERMS OF RULE 24 OF ITAT RULES, 1963. 4. AT THE OUTSET ITSELF WE NOTE THAT IN THIS CASE THE ASSESSEE HAS RAISED GROUND NO.1 AND S TATED THAT THE DISALLOWANCE U/S. 40(A)(IA) OF THE ACT SHOULD NOT BE MADE, WHEN THE DEDUCTEE HAD PAID TAXES ON THE INCOME RECEIVED BY THE ASSESSEE AND FILED HER RETURN OF INCOME. THE LD. DR FOR THE REVENUE ALSO AGREED THAT IF THE DEDUCTEE HAD PAID TAXES O N THE INCOME , NO DISALLOWANCE SHOULD BE MADE. 5. AFTER HEARING THE LD. DR FOR THE REVENUE, WE NOTE THAT IT IS A FIT CASE TO REMIT BACK TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO EXAMINE WHETHER THE DEDUCTEE HAS PAID THE TAXES ON TH E INCOME RECEIVED FROM THE ASSESSEE OR NOT. IF THE DEDUCTEE HAD NOT PAID TAXES THEREON, THEN THERE SHOULD BE NO DISALLOWANCE. THEREFORE, WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) AND REMIT THIS ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO EXAMINE WHETHER THE DEDUCTEE HAD PAID THE TAXES ON THE INCOME RECEIVED BY THE ASSESSEE . THE ASSESSEE IS DIRECTED TO PRODUCE THE EVIDENCES/EXPLANATION TO PROVE THAT DEDUCTEE HAD PAID THE TAXES ON THE INCOME RECEIVED FROM THE ASSESSEE. ITA NO. 94 / KOL/2019 SMT. KAVITA KOTHARI 3 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOU NCED IN THE OPEN COURT ON THIS 21 /0 8 /201 9 . SD/ - ( A.T. VARKEY ) SD/ - ( A. L. SAINI ) / JUDICIAL MEMBER /ACCOUNTANT MEMBER /KOLKATA ; DATED: 21 / 0 8 /201 9 *PP , S R. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - SMT. KAVITA KOTHARI, 13C METRO HEIGHTS, 114 DR. LALMOHAN BHATTACHARJEE ROAD , KOLKATA - 14. 2. / THE RESPONDENT. - INCOME TAX OFFICER, WARD - 40(2), 3 GOVT PLACE(W), KOLKATA . 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, KOLKATA 6. / GUARD FILE. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR, I.T.A.T, KOLKATA BENCHES, KOLKATA