Ashok Kumar Mondal, Burdwan V. ITO, Ward - 2(2), Asansol, Asansol

MA 184/KOL/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6282 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 22-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business expenditure
• Section: 40A(3)

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER (MISC. APPLICATION) M.ANO.184/KOL/2017 (ARISING OUT ITA NO.163/KOL/2014) / ASSESSMENT YEAR:2010-11 ASHOK KUMAR MONDAL BEGUNIA MORE, POST BARAKAR, DIST. BURDWAN, PIN 713 324 [ PAN NO. ADZPM 7709 G ] / V/S . INCOME TAX OFFICER, WARD-2(2), ASANSOL, SAHANA APARTMENT, LOWER CHELIDANGA, ASANSOL-713304 (ORIGINAL APPELLANT) (ORIGINAL R ESPONDENT) (APPLICANT) .. (RESPONDENT) / BY APPLICANT !' / BY RESPONDENT SHRI S.DASSGUPTA, ADDL. CIT-SR- DR / DATE OF HEARING 16-02-2018 / DATE OF PRONOUNCEMENT 16-02-2018 / ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER:- BY WAY OF THIS MISCELLANEOUS APPLICATION (MA) THE A SSESSEE SEEKS TO RECTIFY THE MISTAKE APPARENT FROM RECORD IN THE ORDER OF TR IBUNAL IN ITA NO.163/KOL/2014 PASSED ON 16.09.2016. 2. AT THE TIME OF HEARING NOBODY APPEARED FROM THE SIDE OF ASSESSEE, HOWEVER, WE FIND THAT THE MA FILED BY THE ASSESSEE CAN BE DI SPOSED OF WITHOUT THE APPEARANCE OF LD. AR FOR THE ASSESSEE. THEREFORE, WE PROCEED T O ADJUDICATE THE ISSUE RAISED BY ASSESSEE IN HIS MA AFTER HEARING LD. DR FOR THE REV ENUE. 3. THE GRIEVANCE RAISED BY ASSESSEE IS THAT AMOUNT INVOLVED IN DISPUTE WAS AT 68,15,748/- ONLY. HOWEVER WHILE DECIDING THE APPEAL, THE TRIBU NAL INADVERTENTLY HAS RECORDED THE AMOUNT OF 62,68,458/-. THUS, IT WAS PRAYED TO MAKE THE NECESS ARY RECTIFICATION IN THE ORDER OF TRIBUNAL. MA NO184/KOL/2017 ASHOK KR. MONDAL VS. ITO WD-2(2), ASL PAGE 2 4. LD. DR CONCEDED THE MISTAKE APPARENT FROM RECORD BUT DREW OUR ATTENTION ON THE GROUND OF APPEAL RAISED BY ASSESSEE IN MEMO OF APPEAL IN FORM 36 AND SUBMITTED THAT THE GROUND RECORDED IN THE ORDER OF TRIBUNAL AND THE GROUND RAISED BY ASSESSEE IN MEMO OF APPEAL IN FORM NO. 36 ARE DIFFE RENT. 5. WE HAVE HEARD LD. DR AND PERUSED THE MATERIALS A VAILABLE ON RECORD. WE NOTE THAT ASSESSEE IN HIS APPEAL HAS RAISED THE FOL LOWING GROUNDS OF APPEAL, WHICH ARE REPRODUCED BELOW:- 1) FOR THAT THE ORDER OF LD. CIT(A) IS ARBITRARY, E XCESSIVE AND HENCE BAD IN LAW. 2) FOR THAT ON THE FACTS OF THE CASE THE LD. AO WAS NOT JUSTIFIED IN DISALLOWING THE PAYMENT TO THE CREDITORS WORTH RS.6815748/- U/S. 40A(33) OF THE IT ACT 1961. THE PAYMENT AS MADE TO THE CREDITORS IS ALLOWED UNDER R ULE 6DD(B) AND THE ADDITION AS MADE FOR VIOLATION OF SECTION 40A(3) IS NOT APPLICA BLE IN THE INSTANT CASE AND HENCE IT SHOULD BE DELETED. 3) FOR THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTE R, AND AMEND ANY FURTHER GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. IT IS UNDISPUTED FACT THAT TRIBUNAL HAS RECORDED OT HER GROUNDS WHILE ADJUDICATING THE ISSUE RAISED IN THE GROUNDS OF APPEAL. THE GROUNDS RECORDED BY TRIBUNAL IN ITS ORDER HAS ALREADY BEEN RECORDED IN ITA NO.163/KOL/2014, W HICH IS ALSO REPRODUCED BELOW:- (1) FOR THAT THE ORDER OF THE LD. CIT(A) IS ARBITR ARY, ILLEGAL AND BAD IN LAW. (2) FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.62,68,458/- BEING THE AMOUNT PAID FOR PURCHASE OF COUNTRY LIQUOR UNDER T HE RULES AND DIRECTIONS FRAMED BY THE GOVERNMENT, PAID AS SUCH, THE PROVISIONS OF SEC TION 40A(3) WERE NOT APPLICABLE. (3) FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.62,68,458/- WHEN THE PAYMENT WAS DIRECTLY MADE IN THE BANK ACCOUNT OF TH E SELLER AND A SUCH THE PROVISIONS OF SEC. 40A(3) WERE NOT APPLICABLE. (4) FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.62,68,458/- WHEN VILLAGE WHERE THE ASSESSEES SHOP WAS ESTABLISHED H AD NO BANKING FACILITY AND THE PAYMENT MADE DIRECTLY TO THE BANK ACCOUNT OF THE SE LLER WAS NOT HIT BY THE PROVISIONS OF SEC.40A(3) (5) FOR THAT EVEN OTHERWISE HAVING REGARD TO THE NA TURE AND EXTENT OF BANKING FACILITIES AVAILABLE CONSIDERATION OF BUSINESS EXPE DIENCY AND OTHER RELEVANT FACTORS THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION MAD E BY THE AO U/S 40A(3). (6) FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.20,640/- FROM CARRIAGE INWARD RS.2,57/- FROM TEL. AND MOBILE EXPE NSES RS.6,143/- FROM SHOP EXPENSES RS.6,807/- FROM ELECTRIC EXPENSES ON ADHOC BASIS WHEN THE EXPENSES WERE FULLY INCURRED FOR BUSINESS EXPENSES AND CONSI DERING THE TURNOVER OF THE BUSINESS THE EXPENSES INCURRED WERE QUITE FAIR AND REASONABLE. (7) FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER OF THE CIT(A) BE MODIFIED AND THE ASSESSEE BE GIVEN THE RELIEF PRAYE D FOR. HOWEVER ON PERUSAL OF THE GROUNDS OF APPEAL RAISED BY ASSESSEE AS WELL AS GROUND RECORDED BY TRIBUNAL, THE ISSUE AROSE WITH REGARD T O VIOLATION OF PROVISION OF SECTION 40A(3) OF THE INCOME TAX ACT, 1961. THUS, THE ORDER RENDERED BY THE TRIBUNAL CANNOT BE SAID ERRONEOUS MERELY THAT THE GROUNDS RECORDED BY THE TRIBUNAL ARE DIFFERENT WITH MA NO184/KOL/2017 ASHOK KR. MONDAL VS. ITO WD-2(2), ASL PAGE 3 THE GROUNDS FILED IN MEMO OF APPEAL IN FORM 36. AS THE GRIEVANCE IN THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AS WELL AS IN THE GRO UND RECORDED BY THE TRIBUNAL ARE COMMON, THUS, THE PRINCIPLE ON WHICH THE ORDER WAS RENDERED BY THE TRIBUNAL SUFFERS NO INFIRMITY EXCEPT THE AMOUNT INVOLVED. ACCORDINGL Y, WE HOLD THAT THE GROUND RECORDED BY THE TRIBUNAL WILL BE SUBSTITUTED WITH T HE GROUNDS RAISED BY ASSESSEE. SIMILARLY, THE DISPUTED AMOUNT RECORDED BY THE TRIB UNAL FOR 62,68,458/- WILL BE SUBSTITUTED WITH THE AMOUNT OF RS.68,15,748/- . THUS, THE GRIEVANCE RAISED BY ASSESSEE IS ANSWERED ACCORDINGLY. HENCE, THE ASSESS EE WILL BE ENTITLED TO KEEP RELIEF FOR AN AMOUNT OF RS.68,15,748/- ONLY. WE ORD ER ACCORDINGLY. CONSEQUENTLY, MA OF ASSESSEE IS ALLOWED. 6. IN THE RESULT, MA OF ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING I.E. 16 TH FEBRUARY, 2018 . SD/- SD/- ( () ( () (N.V.VASUDEVAN) (WASEE M AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP *- 16/02 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ASHOK KR.MONDAL, BEGUNIA MORE, POST BARAKAR, DIST. BURDWAN,PIN 713324 2. !' /RESPONDENT-INCOME TAX OFFICER, WARD-2(2), SAHANA AP ARTMENT, LOWER CHELIDANGA, ASANSOL-713304 3. 5 6 / CONCERNED CIT 4. 6- / CIT (A) 5. !5, 5, KOLKATA / DR, ITAT, KOLKATA 6. / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY HEAD OF OFFICE/DDO 5,