Gopalji Ketaki Khara Masala, Berhampur V. DCIT, Berhampur Circle, Berhampur

ITSSA 29/CTK/2016

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3461 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 23-11-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 26-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: D K SHETH

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PAV AN KUMAR GADALE, JM ( ) ./ IT (SS) A NO. 26 ,27& 29 / CTK /20 1 6 ( / A .YS : 20 08 - 2009, 2009 - 2010 & 2011 - 2012 ) GOPALJI KETAKI KHARA MASALA, ANDHPASARA ROAD, BERHAMPUR - 760002 VS. THE DCIT, BERHAMPUR CIRCLE, BERHAMPUR ./ ./ PAN/GIR NO. : A AHFG 2208 F ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI D.K.SHETH , AR /REVENUE BY : SHRI D.K.PRADHAN , DR / DATE OF HEARING : 23 / 1 1 /201 7 / DATE OF PRONOUNCEMENT 23 / 11 /201 7 / O R D E R PER SHRI N.S.SAINI , A M : TH ESE ARE THE AP PEALS FILED BY THE ASSESSEE AGAINST THE SEPARATE ORDERS OF THE CIT(A) - 3, BHUBANESWAR DATED 29.02.2016 AND 23.12.2015 FOR THE ASSESSMENT YEARS 20 08 - 2009, 2009 - 2010 & 2011 - 2012, RESPECTIVELY. 2. FIRST GROUND I N THE APPEAL FOR THE ASSESSMENT YEAR 2008 - 2009 ( I T(SS)A NO. 26/CTK/2016) IS AS UNDER : - 1. FOR THAT THE ADDITION OF RS.1,46,985/ - AS MADE BY DISALLOWING EXPENSES U/S.40A(3) OF THE I.T.ACT BY THE LEARNED AO IS ARBITRARY AND UNJUSTIFIED. 2.1 BRIEF FACTS OF THE CASE ARE THAT THE AO MADE DISALLOWANCE U/S.40 A(3) OF THE ACT IN MAKING CASH PAYMENTS EXCEEDING RS.20,000/ - TO SIVA SAKTI PRINTERS AND SIV SAKTI GRAPHICS ON 26.3.2008, 01.01.2008 & 05.12.2007. ON APPEAL, THE CIT(A) CONFIRMED THE DISALLOWANCE BY OBSERVING THAT THE AR OF THE ASSESSEE COULD NOT SUBSTANTI ATE HIS IT (SS) A NO. 26, 27 & 29 /CTK/201 6 2 SUBMISSIONS BY PRODUCING EVIDENCE THAT NO PAYMENT IN CASH EXCEEDING RS.20,000/ - WAS MADE TO SIVA SAKTI PRINTERS AND SIV SAKTI GRAPHICS. 2.2 AT THE TIME OF HEARING, THE AR OF THE ASSESSEE SUBMITTED THAT HE IS RELYING ON THE WISDOM OF THE BENCH AND MADE NO SUBMISSION ON THE ABOVE GROUND OF APPEAL. THEREFORE, THIS GROUND OF APPEAL IS DISMISSED FOR WANT OF PROSECUTION. 3. GROUND NO.2 OF THE APPEAL READS AS UNDER : - 1. FOR THAT THE ADDITION OF RS.1, 22 , 400 / - AS MADE BY DISALLOWING EXPENSES U/S. 40(A)(IA) OF THE I.T.ACT BY THE LEARNED AO IS ARBITRARY , UNCALLED FOR AND UNJUSTIFIED. 3.1 FACTS IN BRIEF ARE THAT THE AO FOUND THAT THE ASSESSEE HAS MADE PAYMENT FOR SECURITY SERVICES OF RS.1,22,400/ - WITHOUT DEDUCTING TDS U/S.194C OF THE ACT AND, HENCE, HE DISA LLOWED DEDUCTION FOR THE SAME BY INVOKING SECTION 40(A)(IA) OF THE ACT. ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF AO ON THE GROUND THAT THE ASSESSEE HAD LIABILITY TO DEDUCT TDS AT SOURCE ON PAYMENTS MADE TO CITIZEN SECURITIES, AMBAPUA, BERHAMPUR AND HA VING FAILED TO DO SO, PROVISIONS OF SECTION 40(A)IA) OF THE ACT IS ATTRACTED. HE FURTHER OBSERVED THAT THE CONTENTION OF THE ASSESSEE IS THAT LIABILITY TO DEDUCT TAX AT SOURCE DID NOT ARISE SINCE THERE WAS NO CONTRACT BETWEEN THE ASSESSEE AND CITIZEN SECUR ITIES, AMBAPUA, BERHAMPUR, WAS NOT TENABLE SINCE THE LIABILITY IS ATTRACTED EVEN IN ORAL CONTRACT AND THE INTENT & CONDUCT OF BOTH THE PARTIES EVIDENCE THE SAME. 3.2 AT THE TIME OF HEARING, THE AR OF THE ASSESSEE SUBMITTED THAT HE IS RELYING ON THE WISDOM OF THE BENCH AND MADE NO SUBMISSION ON THE IT (SS) A NO. 26, 27 & 29 /CTK/201 6 3 ABOVE GROUND OF APPEAL. THEREFORE, THIS GROUND OF APPEAL IS DISMISSED FOR WANT OF PROSECUTION. 3.3 THUS, APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2008 - 09 IS DISMISSED. 4. FIRST GROUND IN THE APPEAL FOR THE ASSE SSMENT YEAR 2009 - 20 10 (IT(SS)A NO.2 7 /CTK/2016) IS AS UNDER : - 1. FOR THAT THE ADDITION OF RS. 5,000 / - AS MADE BY DISALLOWING EXPENSES UNDER HEAD PENALTY & INTEREST TREATING THE SAME AS NOT FOR THE PURPOSE OF BUSINESS BY THE LEARNED AO IS ARBITRARY AND UNCA LLED FOR. 4 .1 BRIEF FACTS OF THE CASE ARE THAT THE AO DISALLOWED RS.5000/ - AS PENALTY AND INTEREST BY OBSERVING THAT HAD THE DUE BEEN PAID IN TIME, IT WOULD HAVE NO LIABILITY TO PAY INTEREST AND PENALTY. ON APPEAL, THE CIT(A) CONFIRMED THE SAME OBSERVING THAT THE ASSESSEE HAS NOT EXPLAINED THE EXACT NATURE OF PENALTY AND INTEREST OF RS.5000/ - DEBITED SEPARATELY TO PROFIT AND LOSS ACCOUNT. 4.2 AT THE TIME OF HEARING, THE AR OF THE ASSESSEE SUBMITTED THAT HE IS RELYING ON THE WISDOM OF THE BENCH AND MADE NO SUBMISSION ON THE ABOVE GROUND OF APPEAL. THEREFORE, THIS GROUND OF APPEAL IS DISMISSED FOR WANT OF PROSECUTION. 5. GROUND NO.2 OF THE APPEAL READS AS UNDER : - 1. FOR THAT THE ADDITION OF RS.1, 22 , 400 / - AS MADE BY DISALLOWING EXPENSES U/S. 40(A)(IA) OF THE I.T.ACT BY THE LEARNED AO IS ARBITRARY , UNCALLED FOR AND UNJUSTIFIED. 3.1 FACTS IN BRIEF ARE THAT THE AO FOUND THAT THE ASSESSEE HAS MADE PAYMENT FOR SECURITY SERVICES OF RS.1,22,400/ - WITHOUT DEDUCTING TDS U/S.194C OF THE ACT AND, HENCE, HE DISALLOWED DEDUCTION FOR THE SAME BY IT (SS) A NO. 26, 27 & 29 /CTK/201 6 4 INVOKING SECTION 40(A)(IA) OF THE ACT. ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF AO ON THE GROUND THAT THE ASSESSEE HAD LIABILITY TO DEDUCT TDS AT SOURCE ON PAYMENTS MADE TO CITIZEN SECURITIES, AMBAPUA, BERHAMPUR AND HAVING FA ILED TO DO SO, PROVISIONS OF SECTION 40(A)IA) OF THE ACT IS ATTRACTED. HE FURTHER OBSERVED THAT THE CONTENTION OF THE ASSESSEE IS THAT LIABILITY TO DEDUCT TAX AT SOURCE DID NOT ARISE SINCE THERE WAS NO CONTRACT BETWEEN THE ASSESSEE AND CITIZEN SECURITIES, AMBAPUA, BERHAMPUR, WAS NOT TENABLE SINCE THE LIABILITY IS ATTRACTED EVEN IN ORAL CONTRACT AND THE INTENT & CONDUCT OF BOTH THE PARTIES EVIDENCE THE SAME. 5.2 AT THE TIME OF HEARING, THE AR OF THE ASSESSEE SUBMITTED THAT HE IS RELYING ON THE WISDOM OF THE BENCH AND MADE NO SUBMISSION ON THE ABOVE GROUND OF APPEAL. THEREFORE, THIS GROUND OF APPEAL IS DISMISSED FOR WANT OF PROSECUTION. 5.3 THUS, APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2009 - 10 IS DISMISSED. 6 . FIRST GROUND IN THE APPEAL FOR THE ASSESSMENT YEAR 20 11 - 201 2 (IT(SS)A NO.2 9 /CTK/2016) IS AS UNDER : - 1. FOR THAT THE ADDITION OF RS. 82,968 / - AS MADE BY DISALLOWING EXPENSES U/S. 40(A)(IA) OF THE I.T.ACT BY THE LEARNED AO IS ARBITRARY , UNCALLED FOR AND UNJUSTIFIED. 6 .1 FACTS IN BRIEF ARE THAT THE AO F OUND THAT THE ASSESSEE HAS MADE PAYMENT FOR SECURITY SERVICES OF RS. 82,968 / - WITHOUT DEDUCTING TDS U/S.194C OF THE ACT AND, HENCE, HE DISALLOWED DEDUCTION FOR THE SAME BY INVOKING SECTION 40(A)(IA) OF THE ACT. ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF AO ON THE GROUND THAT THE ASSESSEE HAD LIABILITY TO DEDUCT TDS IT (SS) A NO. 26, 27 & 29 /CTK/201 6 5 AT SOURCE ON PAYMENTS MADE TO G4S SECURITY SERVICES (INDIA) LTD., BERHAMPUR AND HAVING FAILED TO DO SO, PROVISIONS OF SECTION 40(A)IA) OF THE ACT IS ATTRACTED. HE FURTHER OBSERVED THAT THE CONT ENTION OF THE ASSESSEE IS THAT LIABILITY TO DEDUCT TAX AT SOURCE DID NOT ARISE SINCE THERE WAS NO CONTRACT BETWEEN THE ASSESSEE AND G4S SECURITY SERVICES (INDIA) LTD. , BERHAMPUR, WAS NOT TENABLE SINCE THE LIABILITY IS ATTRACTED EVEN IN ORAL CONTRACT AND TH E INTENT & CONDUCT OF BOTH THE PARTIES EVIDENCE THE SAME. 6 .2 AT THE TIME OF HEARING, THE AR OF THE ASSESSEE SUBMITTED THAT HE IS RELYING ON THE WISDOM OF THE BENCH AND MADE NO SUBMISSION ON THE ABOVE GROUND OF APPEAL. THEREFORE, THIS GROUND OF APPEAL IS DISMISSED FOR WANT OF PROSECUTION. 6 .3 THUS, APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 20 11 - 1 2 IS DISMISSED. 7 . IN THE RESULT, ALL THE APPEALS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 / 11 /201 7 . SD/ - ( PAVAN KUMAR GADALE ) SD/ - (N. S. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 23 / 11 /201 7 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - GOPALJI K ETAKI KHARA MASALA, ANDHPASARA ROAD, BERHAMPUR - 760002 2. / THE RESPONDENT - THE DCIT, BERHAMPUR CIRCLE, BERHAMPUR 3. ( ) / THE CIT(A), 4. / CIT IT (SS) A NO. 26, 27 & 29 /CTK/201 6 6 / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//