ITO, WD-50(3), KOLKATA, Kolkata V. Debayan Bhattacharya, Kolkata

MA 2/KOL/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5234 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-01-2017
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 20-01-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 08-01-2016
• Court: TRIBUNAL
• Section: 40A(3)

Judgement Text

M.A.NO.02/KOL/2016 A/O ITA NO.493/KOL/2010-SHRI DE BAYAN BHATTACHARYA. A.Y.2006-07 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C KOL KATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI WAS EEM AHMED, AM ] M.A.NO.02/KOL/2016 (A/O ITA NO.493/KOL/2010) ASSESSMENT YEAR : 2006-07 I.T.O., WARD-50(3) -VERSUS- SHRI DEBAYAN BHATTAC HARYA KOLKATA KOLKATA (PAN:AAJPB2128D) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI SALLONG YADEN, ADDL. CI T(DR) FOR THE RESPONDENT: NONE DATE OF HEARING : 20.01.2017 DATE OF PRONOUNCEMENT : 20.01.2017. ORDER PER N.V.VASUDEVAN, JM: THE REVENUE HAS FILED A MISCELLANEOUS APPLICATION U /S.254(2) OF THE INCOME TAX ACT, 1961 (ACT) PRAYING THAT ORDER OF THE TRIBUNAL SUFFERS FROM APPARENT ERRORS AND THEREFORE THE APPEAL SHOULD BE HEARD AFRESH. 2. ONE OF THE ISSUE THAT AROSE FOR CONSIDERATI ON IN THE APPEAL FILED BY THE ASSESSEE WAS THE ISSUE OF DISALLOWANCE MADE U/S 40(A)(IA) O F THE ACT. THE ASSESSEE PAID COMMISSION ON WHICH NO TDS WAS DEDUCTED AND THEREFO RE A SUM OF RS.56,400/- WAS DISALLOWED U/S 40(A)(IA) OF THE ACT. IT WAS THE PLE A OF THE ASSESSEE THAT THE SUM IN QUESTION WAS PAID TO DIFFERENT INDIVIDUALS AND PAYM ENT TO EACH OF THE INDIVIDUAL HAD NOT EXCEEDED RS.2,500/- AND THEREFORE THERE WAS NO OBLIGATION TO DEDUCT TAX AT SOURCE ON COMMISSION U/S 194H OF THE ACT. IT WAS ALTERNATI VELY SUBMITTED THAT THE PAYMENT IN QUESTION WAS IN THE NATURE OF DISCOUNT ALLOWED IN T HE COURSE OF BUSINESS OF SALE OF RECHARGE VOUCHERS ETC OF VODAFONE CELLULAR OPERTOR. BOTH THESE CONTENTIONS WERE REJECTED BY CIT(A). THE TRIBUNAL HOWEVER ACCEPTED T HE ALTERNATIVE CONTENTION BY RELYING ON THE DECISION OF KOLKATA BENCH OF THE TRI BUNAL IN THE CASE OF SHRI ASHIM MITRA VS ITO IN ITA NO.173/KOL/2012 DATED 22.05.201 5. M.A.NO.02/KOL/2016 A/O ITA NO.493/KOL/2010-SHRI DE BAYAN BHATTACHARYA. A.Y.2006-07 2 3. IT IS THE PLEA OF THE REVENUE IN THE MISCELL ANEOUS APPLICATION THAT THE DECISION RELIED UPON BY THE TRIBUNAL WAS RENDERED IN THE CON TEXT OF THE PROVISION OF SECTION 40A(3) OF THE ACT WHEREAS THE DISALLOWANCE IN THE C ASE OF THE ASSESSEE WAS MADE U/S 40(A)(IA) OF THE ACT. THEREFORE THE TRIBUNAL WAS NO T JUSTIFIED IN ALLOWING RELIEF TO THE ASSESSEE. 4. WE HAVE HEARD THE SUBMISSION OF THE LD. DR, WHO RELIED ON THE STAND TAKEN BY THE REVENUE IN THE MISCELLANEOUS APPLICATION. WE ARE OF THE VIEW THAT THERE IS NO MERIT IN THIS MISCELLANEOUS APPLICATION. FIRSTLY IN THE GARB OF MISCELLANEOUS APPLICATION THE REVENUE CANNOT SEEK REVIEW OF THE ORDER OF THE TRIB UNAL. SECONDLY THE DISALLOWANCE IN THE CASE OF SHRI ASHIM MITRA (SUPRA) WAS ALSO WITH REFERENCE TO TDS U/S 194H OF THE ACT AND THEREFORE THE DECISION CITED WAS IN THE CON TEXT OF SECTION 40(A)(IA) OF THE ACT THOUGH IT HAS BEEN WRONGLY MENTIONED AS SEC.40A(3) IN THE ORDER. WE THEREFORE FIND NO MERIT IN THIS MISCELLANEOUS APPLICATION. 5. IN THE RESULT THE MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. O RDER PRONOUNCED IN THE COURT ON 20.01.2017. SD/- SD/- [WASEEM AHMED ] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 20.01.2017. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.SHRI DEBAYAN BHATTACHARYA, DB-29, B-4, SECTOR-1, SALT LAKE CITY, KOLKATA-700064. 2. .I.T.O., WARD-50(3), KOLKATA 3. C.I.T.(A)-XXXII, KOLKATA 4. C.I.T.- XV II, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, ASST. REGISTRAR, ITAT, KOLKATA BENCHES