Md Ehrar Khan, Asansol V. A.C.I.T Cir - 1,kolkata, Asansol

ITA 999/KOL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5082 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 29-04-2013
• Court: TRIBUNAL
• Department Lawyers: G MALLIKARJUNA
• Assessee Lawyers: ARVIND AGARWAL
• 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.999/KOL/2013 ASSESSMENT YEAR: 2009-10 MD. EHRAR KHAN, (PAN: AOZPK9629J) VS. ASSISTANT C OMMISSIONER OF INCOME-TAX, CIRCLE-1, ASANSOL. ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 04.02.2016 DATE OF PRONOUNCEMENT: 19.02.2016 FOR THE APPELLANT: SHRI ARVIND AGARWAL, ADVOCATE FOR THE RESPONDENT: SHRI G. MALLIKARJUNA, CIT ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A), ASANSOL VIDE APPEAL NO. 166/CIT(A)/ASL/CIR-1/ASL/11-12 DATED 19.03.2013. AS SESSMENT WAS FRAMED BY ACIT, CIRCLE-1, ASANSOL U/S. 143(3) OF THE INCOME TAX ACT, 1961 (HE REINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2009-10 VIDE HIS ORDER DATED 26.12. 2011. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AG AINST THE ORDER OF CIT(A) CONFIRMING THE ACTION OF AO IN DISALLOWING THE TRUCK HIRE CHARGES AMOUNTING TO RS.6,57,22,280/- FOR NON DEDUCTION OF TDS U/S. 194C OF THE ACT THEREBY INVOK ING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE BEFO RE US FILED COMPLETE DETAILS OF PAYMENT OF TRUCK HIRE CHARGES AMOUNTING TO RS.6,57,22,280/- OU T OF WHICH THE PARTIES TO WHOM THE PAYMENTS BELOW RS.50,000/- PER ANNUM IS TO THE EXTENT OF RS. 26,85,129/-. LD. COUNSEL FOR THE ASSESSEE FIRST OF ALL, STATED THAT THIS FACT OF THE PAYMENTS ARE BELOW RS.50,000/- PER ANNUM CAN BE VERIFIED BY THE AO AND ISSUE CAN BE REMITTED BACK TO THE FI LE OF AO. SECONDLY, IN RESPECT TO THE BALANCE PAYMENT OF RS.6,30,37,151/- THE ISSUE CAN BE REMITT ED BACK TO THE FILE OF THE AO WITH A DIRECTION TO VERIFY WHETHER THE RECIPIENTS OF THE INCOME HAVE INCLUDED THE RECEIPTS AS THEIR INCOME IN THE I. T. RETURNS AND PAID TAXES ACCORDINGLY. THE AO WILL APPLY THE AMENDMENT BY VIRTUE OF WHICH THE SECOND PROVISO WAS INSERTED TO SECTION 40(A)(IA) OF THE ACT BY FINANCE ACT, 2013, WHICH WAS HELD TO BE PROSPECTIVE BY HONBLE DELHI HIGH COURT IN THE CASE OF ANSAL LAND MARK TOWNSHIP (P) LTD., ITA NOS. 160 & 161/KOL/2015, WHEREIN IT H AS BEEN HELD AS UNDER: 2 ITA NO.999/KOL/2013 MD. EHRAR KHAN, AY 2009-10 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)(IA) INSER TED BY FINANCE ACT 2013 W.E.F. 1.4.2013 SHOULD BE TREATED AS CURATIVE AND TO HAVE RETROSPEC TIVE EFFECT FROM 1.4.2005. ITAT PRAISED FOR 'THOROUGH ANALYSIS' OF THE PROVISION IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDERS OF TH E LOWER AUTHORITIES AND RESTORE THE MATTER TO THE FILE OF AO FOR FRESH ADJUDICATION IN TERMS OF THE D ECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF ANSAL LAND MARK TOWNSHIP (P) LTD. CITED SUPRA WH EREIN IT IS HELD THAT IN CASE THE RECIPIENTS OF THESE EXPENSES HAVE INCLUDED THE RECEIPTS IN THEIR RESPECTIVE RETURNS OF INCOME FILED WITH THE DEPARTMENT AND PAID TAXES ON THE SAME IN THAT CASE THE DISALLOWANCE IN THE HANDS OF THE ASSESSEE IS TO BE DELETED. THE INFORMATION REGARDING THE REC IPIENTS INCOME TAX PARTICULARS, THEIR PAN ETC. ARE TO BE GIVEN BY THE ASSESSEE TO THE AO. THIS AP PEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 19.02.2016 SD/- SD/- (M. BALAGANESH) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 19TH FEBRUARY, 2016 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1. APPELLANT MD. EHRAR KHAN, PROP. I. T. ENTERPRISE, RAIL PAR, QURESHI MAHALLA, ASANSOL- 713302. 2. RESPONDENT ACIT, CIRCLE-1, ASANSOL 3. CIT(A) , ASANSOL 4. CIT , ASANSOL 5. DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .