ITO, Ward-46(2), Kolkata, Kolkata V. Mohasin Mollah, Howrah

MA 58/KOL/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9137 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-09-2012
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 09-05-2012
• Court: TRIBUNAL
• Department Lawyers: D CHATTERJEE
• Assessee Lawyers: B K DAS
• Keywords: Retrospective amendment

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH A, KOLKATA () BEFORE , , , , , SHRI MAHAVIR SINGH, JUDICIAL MEMBER. /AND . .. . ! ! ! !. .. . , '# SHRI C.D.RAO, ACCOUNTANT MEMBER $ $ $ $ / M.A.NO.58/KOL/2012 A/O ITA NO . 383/KOL/2011 & C.O.NO.24/KOL/2011 %& '(/ ASSESSMENT YEAR : 2006-07 (*+ / APPELLANT ) I.T.O., WARD-46(2), KOLKATA - % - - VERSUS - . (-.*+/ RESPONDENT ) MOHASIN MOLLAH, KOLKATA (PAN: AIOPM 4438 N) *+ / 0 '/ FOR THE APPELLANT: SHRI B.K.DAS -.*+ / 0 '/ FOR THE RESPONDENT: SHRI D.CHATTERJEE 1%2 / !# /DATE OF HEARING : 21.09.2012 3' / !# /DATE OF PRONOUNCEMENT : 21.09.2012. '4 / ORDER ( (( ( . .. . ! ! ! !. .. . ) )) ), , , , '# PER SHRI C.D.RAO, AM THE ABOVE MISCELLANEOUS APPLICATION HAS BEEN FILED BY REVENUE TO RECTIFY THE ORDER OF TRIBUNAL DATED 02.06.2011 VIDE ITA NO.383/ KOL/2011 PERTAINING TO A.YR. 2006-07. 2. BY THIS MISCELLANEOUS APPLICATION THE REVENUE W ANTS TO RECTIFY THE ORDER OF TRIBUNAL DATED 02.06.2011 BY STATING THAT THAT THE GROUND OF APPEAL WAS THAT THE ASSESSEE CL AIMED OF LABOUR CHARGES FOR EMBROIDERY WORK TO THE TUNE OF RS.80,35,270/- FOR E XECUTION OF CONTRACT WORK. THE A.O. NOTICED THAT THE ASSESSEE MADE PAYMENT OF RS.80,35, 270/- TO 34 PERSONS WHERE PAYMENT TO EACH PERSON EXCEEDED RS.50,000/- AND THE ASSESSE E MADE PAYMENT TO THE ABOVE PERSONS ON SUB-CONTRACT BASIS. ON THE BASIS OF TURN OVER, THE ASSESSEE WAS LIABLE TO GET HIS 2 ACCOUNTS COMPULSORY AUDITED U/S 44AB OF I.T.ACT, 19 61 AND TO DEDUCT TAX AT THE TIME OF MAKING PAYMENT TO SUB-CONTRACTORS. BUT THE ASSESSEE FAILED TO DEDUCT TAX AS PER PROVISION OF SECTION 194C(2) OF I.T.ACT. SO THE AO DISALLOWED THE ENTIRE PAYMENT AS PROVISION OF SECTION 40A(IA) IS CLEARLY ATTRACTABLE IN THIS CASE. BUT THE LD. ITAT, A BENCH, KOLKATA DID NOT CONSIDER THE PROVISION OF SE CTION 194C(2) AND PROVISION OF SECTION 40A(IA). WHEREAS SECTION 194C(1)(K) WAS DIS CUSSED BUT IT WAS NOT PART OF THE GROUND OF THE APPEAL FILED BY THE REVENUE. 3. AT THE TIME OF HEARING THE LD. DR APPEARING ON BEHALF OF THE REVENUE HAS REITERATED THE ABOVE SUBMISSIONS AND REQUESTED TO R ECALL THE ORDER OF THE TRIBUNAL DATED 02.06.2011. 3. 1. ON THE OTHER HAND, THE LD. COUNSEL APPEARING ON BEHALF OF ASSESSEE BY REFERRING TO THE GROUNDS OF APPEAL TAKEN BY ASSESSEE BEFORE T HE TRIBUNAL AND BY PLACING RELIANCE ON THE ORDER OF JURISDICTIONAL HIGH COURT WHEREIN T HE JURISDICTIONAL HIGH COURT HAS CONFIRMED THE ORDERS OF THE TRIBUNAL DATED 02.06.20 11 AGAINST WHICH THE PRESENT MISCELLANEOUS APPLICATION LIES. HE FURTHER SUBMITTE D THAT SINCE THE ORDER OF TRIBUNAL HAS BEEN MERGED WITH THE ORDER OF JURISDICTIONAL HI GH COURT THE MISCELLANEOUS APPLICATION OF THE REVENUE MAY BE DISMISSED. 4. AFTER HEARING THE RIVAL SUBMISSIONS AND ON PERUS AL OF THE MATERIALS AVAILABLE ON RECORD, IT IS OBSERVED THAT THE HONBLE JURISDICTIO NAL HIGH COURT HAS OBSERVED AGAINST THE ORDER OF THE TRIBUNAL DATED 02.06.2011 ON WHICH THE REVENUE HAS PREFERRED THIS MISCELLANEOUS APPLICATION. THE REVENUE HAS ALSO GON E TO THE HONBLE JURISDICTIONAL HIGH COURT IN ITAT NO.317 OF 2011 CONTESTING THE SA ME ARGUMENTS. HOWEVER, THE HONBLE HIGH COURT HAS CONFIRMED THE ORDER OF THE T RIBUNAL BY OBSERVING AS UNDER :- WE HAVE HEARD MR. BHOWMICK AND WE HAVE GONE THROUG H THE IMPUGNED JUDGMENT AND ORDER. THE COMMISSIONER OF INCOME TAX (APPEAL) HELD THAT INSERTION OF SECTION 194C(1)(K) HAS BEEN MADE WITH EFFECT FROM 1 .6.2007. THE MATTER RELATES TO THE ASSESSMENT YEAR 2006-2007. IN VIEW OF THE AFORESAID FINDING OF THE COMMISSIONE R OF INCOME TAX (APPEAL) AND HAVING FOUND NO INFIRMITY THEREIN THE LEARNED T RIBUNAL HAS DISMISSED THE APPEAL SUMMARILY. WE ARE IN TOTAL AGREEMENT WITH THE LEARN ED TRIBUNAL AS THE AFORESAID AMENDMENT HAS NO RETROSPECTIVE EFFECT. MR. BHOWMICK SUBMITS THAT THE LEARNED TRIBUNAL HAS NOT DECIDED THE RIGHT POINT WHICH IS INVOLVED IN THIS MATTER WE FIND THIS POINT WAS NOT RAISED OR AGITATED BEFORE THE LEARNED TRIBUNAL, HENCE WE THINK THAT WE CANNOT ADM IT THE GROUND ON THAT POINT AND 3 THOSE POINTS MAY BE AGITATED, IF SO ADVISED, BEFORE THE LEARNED TRIBUNAL ITSELF IN ACCORDANCE WITH LAW. HENCE, WE DISMISS THE APPEAL . 4.1. SINCE THE HONBLE JURISDICTIONAL HIGH COURT HA S CONFIRMED THE ORDERS OF THE TRIBUNAL DATED 02.06.2011 THE APPEAL PREFERRED BY T HE REVENUE IS LIABLE TO BE DISMISSED. THEREFORE WE DISMISS THE SAME IN VIEW OF THE FACT THAT THE ORDERS OF THE TRIBUNAL HAS MERGED WITH THAT OF THE JURISDICITONAL HIGH COURT WHICH IS AGAINST THE REVENUE. THEREFORE WE DISMISS THE MISCELLANEOUS APP LICATION OF THE REVENUE. 5. IN THE RESULT THE MISCELLANEOUS APPLICATION OF T HE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21.09.2012. SD/- SD/- , , , , MAHAVIR SINGH, JUDICIAL MEMBER . .. . ! ! ! !. .. . , , , , '# '# '# '# , C.D.RAO, ACCOUNTANT MEMBER. ( (( (!# !# !# !#) )) ) DATE: 21.09.2012. '4 / -5 6'5'7- COPY OF THE ORDER FORWARDED TO: 1. MOHASIN MOLLAH, VILL.BELDUBI(NORTH), P.O.BELDUBI, P .S.PANCHALA, HOWRAH- 711322. 2 I.T.O., WARD-46(2), KOLKATA 3. THE CIT-XVI, KOLKATA, 4. THE CIT(A)-XXX, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA .5 -/ TRUE COPY, '4%1/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.)