La Electroamps, Kolkata v. I.T.O Wd - 40(1),kolkata., Kolkata

ITA 185/KOL/2013 | 2005-2006
Pronouncement Date: 19-11-2014 | Result: Partly Allowed

Appeal Details

RSA Number 18523514 RSA 2013
Assessee PAN AABFL6851D
Bench Kolkata
Appeal Number ITA 185/KOL/2013
Duration Of Justice 1 year(s) 9 month(s) 22 day(s)
Appellant La Electroamps, Kolkata
Respondent I.T.O Wd - 40(1),kolkata., Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 19-11-2014
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted SMC
Tribunal Order Date 19-11-2014
Date Of Final Hearing 01-08-2014
Next Hearing Date 01-08-2014
Assessment Year 2005-2006
Appeal Filed On 28-01-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI MAHAVIR SINGH JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER ITA NO. 185 /KOL/ 2013 ASSESSMENT YEAR: 2005 - 06 LA ELECTROAMPS 22 - C MOTILAL BASAK GARDEN LANE KOLKATA 700 054 [ PAN NO.AABFL 6851 D ] / V/S . INCOME TAX OFFICER WARD - 40(1) PODDAR COURT KOLKATA 700 001 / APPELLANT .. / RESPONDENT / BY APPELLANT SHRI K.M. ROY FCA / BY RESPONDENT SHRI AMITABHA ROY JCIT DR / DATE OF HEARING 19 - 11 - 2014 / DATE OF PRONOUNCEMENT 19 - 11 - 2014 / O R D E R PER SHAMIM YAHYA ACCOUNTANT M EMBER : - THIS A PPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - XXXII KOLKATA DATED 27 - 03 - 2009 AND PERTAINS TO ASSESSMENT YEAR 2005 - 06 AND GROUNDS OF APPEAL IS AS UNDER: - 1. THAT THE LD CIT(A) HAS ERRED IN SUSTAINING TH E DISALLOWANCE OF RS.5 77 770/ - DUE TO LATE DEPOSIT OF TAX DEDUCTED AT SOURCE IGNORING THE BINDING JUDGMENT OF JURISDICTIONAL HIGH COURT OF KOLKATA. ITA NO.185/KOL/2013 A.Y. 2005 - 06 LA ELECTROAMPS V. ITO WD - 40(1) KOL PAGE 2 2. THAT THE DISALLOWANCE OF RS.27 383/ - TOWARDS PERSONAL USE OF MOTOR CAR IS PERVERSE. 2. APROPOS DISALLOWANCE OF RS.5 77 770/ - . T HIS ISSUE PERTAINS TO TOTAL DISALLOWANCE OF A SUM OF RS.6 30 997/ - MADE BY THE ASSESSING OFFICER U/S. 40(A)(IA) OF THE INCOME TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT ). THE AO OBSERVED THAT THE ASSESSEE HAD DEDUCT ED TAX AT SOURCE ON THE PAYMENTS MADE BY IT FOR LABOUR CHARGES BUT DID NOT DEPOSIT THE SAME IN GOVERNMENT ACCOUNT BY THE DUE DATE THEREFORE HE DISALLOWED THE SAME UNDER THE PROVISIONS OF SECTION 40(A)(IA). DURING THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) REPRESENTATIVE OF THE ASSESSEE (THE AR) SUBMITTED THAT THE ASSESSEE HAD DEDUCTED TAX AT SOURCE ON THE LABOUR CHARGES PAID BUT DEPOSITED THE SAME WITH THE GOVERNMENT ACCOUNT ON 07 - 10 - 2005 I.E. BEFORE THE DUE DATE OF FILING OF THE RETURN ALTHOUGH TH E DUE DATE OF DEPOSITING TDS WAS 31 - 05 - 2005. HE FURTHER SUBMITTED THAT IN LIGHT OF THE AMENDMENT BROUGHT INTO SECTION 40(A)(IA) AND PROVISO THEREOF W.E.F. 01.04.2005 THE TAX DEDUCTED AT SOURCE IS TO BE ALLOWED EVEN THOUGH THE SAME IS DEPOSITED BEYOND THE D UE DATE PROVIDED THE SAME IS PAID BEFORE THE DUE DATE OF THE FILING OF THE RETURN. 3. CONSIDERING THE ABOVE LD. CIT(A) HELD AS UNDER: - A PERUSAL OF THE SECTION 40(A)(IA) AS AMENDED SHOWS THAT THE AMOUNT ON WHICH THE TAX DEDUCTED AT SOURCE EVEN IF DEPO SITED AFTER THE DUE DATE HAS BEEN PAID BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME MAY BE ALLOWED AS EXPENDITURE IF THE TDS WAS DEDUCTIBLE AND WAS DEDUCTED DURING THE LAST MONTH OF THE PREVIOUS YEAR (I.E MONTH OF MARCH). ACCORDINGLY THE AR WAS R EQUIRED TO PROVIDE THE DETAILS OF PAYMENTS IN RESPECT OF WHICH TDS WAS DEDUCTIBLE AND WAS DEDUCTED DURING THE MONTH OF MARCH 20005. AS PER THE DETAILS SUPPLIED BY THE AR AMOUNT OF SUCH PAYMENTS WAS RS.53 227/ - ONLY. ACCORDINGLY THE ASSESSING OFFICER IS DIRECTED TO ALLOW SUCH EXPENDITURE TO THE EXTENT OF RS.53 227/ - AFTER VERIFYING THE CLAIM OF THE AR REGARDING THE DEDUCTIBILITY AND DEDUCTION OF TAX AT SOURCE DURING THE MONTH OF MARCH 2005. THE BALANCE AMOUNT HAS ITA NO.185/KOL/2013 A.Y. 2005 - 06 LA ELECTROAMPS V. ITO WD - 40(1) KOL PAGE 3 RIGHTLY BEEN DISALLOWED BY THE AO AND TH E DISALLOWANCE TO THAT EXTENT IS CONFIRMED. AGAINST THE ABOVE ORDER ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD BOTH LD. COUNSEL AND PERUSED THE RECORDS. WE FIND THAT AS PER THE AMENDMENT BROUGH T INTO SECTION 40(A)(IA) OF THE ACT AND PROVISO THER EOF WITH EFFECT FROM 01 - 04 - 2005 THE TAX DEDUCTED AT SOURCE IS TO BE ALLOWED EVEN THOUGH THE SAME IS DEPOSITED BEYOND THE DUE DATE PROVIDED THE SAME IS PAID BEFORE THE DUE DATE OF THE FILING OF RETURN. IN THIS CASE ASSESSEE HAS PAID THE ENTIRE TAX DEDUCTE D AT SOURCE BEFORE DUE DATE OF FILING OF ITS RETURN. THERE IS NO DISPUTE IN THIS REGARD. HENCE THERE IS NO REASON WHY THE EXPENDITURE CLAIMED OF RS.6 30 997/ - SHOULD NOT BE ALLOWED. HENCE WE SET ASIDE THE ORDER OF LD. CIT(A) AND HOLD THAT THE ENTIRE AMOU NT INVOLVED IS TO BE ALLOWED. 5. APROPOS SECOND ISSUE OF DISALLOWANCE OF RS.27 383/ - . O N THIS ISSUE ASSESSING OFFICER NOTED THAT ASSESSEE HAS INCURRED VEHICLE RUNNING EXPENSES INTEREST ON CAR LOAN AND DEPRECIATION ON CAR ALL TOTALING RS.1 36 195/ - . AO AS KED THE ASSESSEE TO PRODUCE LOG BOOK OF THE CAR. IN ABSENCE THEREOF AO DISALLOWED 20% OF TOTAL EXPENSE I.E RS.27 383/ - TO PREVENT LECKAGE OF REVENUE BY CLAIMING PERSONAL EXPENSE IN PROFIT AND LOSS ACCOUNT. UPON ASSESSEE S APPEAL LD. CIT(A) AFFIRMED THE A CTION OF AO. 6. AGAINST THE ABOVE ORDER ASSESSEE IS IN APPEAL BEFORE US. 7. WE HAVE HEARD BOTH LD. COUNSEL AND PERUSED THE RECORD. UPON CAREFUL CONSIDERATION WE NOTE THAT AO HAS MADE THE DISALLOWANCE ON ESTIMATE BASIS @ 20% OF THE TOTAL EXPENDITURE . IN OUR CONSIDERED OPINION DISALLOWANCE @ 10% IN ITA NO.185/KOL/2013 A.Y. 2005 - 06 LA ELECTROAMPS V. ITO WD - 40(1) KOL PAGE 4 THIS REGARD WOULD SERVE THE INTEREST OF JUSTICE. ACCORDINGLY AO IS DIRECTED TO MAKE THE DISALLOWANCE @ 10% UPON THE EXPENDITURE INVOLVED. 8. IN THE RESULT THIS APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 19 / 1 0/2014 SD/ - SD/ - ( MAHAVIR SINGH ) ( SHAMIM YAHYA ) JUDICIAL MEMBER ACCOUNTANT MEM BER KOLKATA *DKP - 19 / 1 0/2014 / COPY OF ORDER FORWARDED TO: - 1 . / APPELLANT LA ELECTROAMPS 22 - C MOTILAL BASAK GARDEN LANE KOLKATA - 5 2 . / RESPONDENT ITO WARD - 40(1) PODDAR COURT KOLKATA - 01 3 . / CONCERNED CIT 4 . - / CIT (A) 5 . / DR ITAT KOLKATA 6 . / GUARD FILE. BY ORDER/ /TRUE COPY/ /