I.T.O. Wd-46(2), Kol, Kolkata v. Md. Mosaraf Middey, Howrah

ITA 1880/KOL/2009 | 2006-2007
Pronouncement Date: 13-02-2012

Appeal Details

RSA Number 188023514 RSA 2009
Assessee PAN AIQPM3131Q
Bench Kolkata
Appeal Number ITA 1880/KOL/2009
Duration Of Justice 2 year(s) 3 month(s) 3 day(s)
Appellant I.T.O. Wd-46(2), Kol, Kolkata
Respondent Md. Mosaraf Middey, Howrah
Appeal Type Income Tax Appeal
Pronouncement Date 13-02-2012
Appeal Filed By Department
Bench Allotted B
Tribunal Order Date 13-02-2012
Date Of Final Hearing 18-07-2011
Next Hearing Date 18-07-2011
Assessment Year 2006-2007
Appeal Filed On 10-11-2009
Judgment Text
B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE /AND . . . . ' '' ''# '#'# '# $% ) [BEFORE SHRI MAHAVIR SINGH JM & SHRI ABRAHAM P. GEORGE AM] & & & & / I.T.A NO. 1880/KOL/2009 '( )* '( )* '( )* '( )*/ // / ASSESSMENT YEAR: 2006-07 INCOME-TAX OFFICER WD-46(2) KOLKATA VS. MD. MOSA RAF MIDDAY (PAN: AIQPM3131Q) ( - /APPELLANT ) (./ -/ RESPONDENT ) DATE OF HEARING: 05.02.2014 DATE OF PRONOUNCEMENT: 13.02.2014 FOR THE APPELLANT: SHRI APURBA KR. DAS JCIT DR FOR THE RESPONDENT: SHRI V. N. PUROHIT $0 / ORDER PER SHRI MAHAVIR SINGH JM: THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A)-XXX KOLKATA IN APPEAL NO. 367/CIT(A)-XXX/WARD-46(2)/2008-09 DATED 26.08.2009. ASSESSMENT WAS FRAMED BY ITO WARD-46(2) KOLKATA U/S. 143(3) OF THE INCOME-TAX A CT 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2006-07 VIDE HIS ORDER D ATED 23.12.2008. 2. THE FIRST ISSUE IN THIS APPEAL OF REVENUE IS AGA INST THE ORDER OF CIT(A) RESTRICTING THE DISALLOWANCE MADE BY AO OF PURCHASES AT RS. 2 LACS AS AGAINST THE DISALLOWANCE MADE AT RS.9 02 950/-. FOR THIS REVENUE HAS RAISED FOLLOW ING GROUND NO.1: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) IS NOT JUSTIFIED TO RESTRICT THE DISALLOWANCE TO RS.2 00 000/- ON PU RCHASE OF JORRY MATERIAL WITHOUT ANY CONCRTE CONTEMPORANEOUS EVIDENCE AND IN ABSENCE OF DETAILS IN SUPPORT OF THE PURCHASES CLAIMED BY THE ASSESSEE. 3. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH FA CTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE AO NOTICED FROM THE ACCOUNTS OF TH E ASSESSEE THAT IT HAS SHOWN PURCHASES AT RS.45 14 750/- AND ASSESSEE COULD NOT FILE DETAILS OF PURCHASES AND IN THE ABSENCE OF THE EVIDENCE HE MADE DISALLOWANCE OF 20% OF THE PURCHAS ES AT RS.9 02 950/-. AGGRIEVED ASSESSEE PREFERRED APPEAL BEFORE CIT(A) WHO RESTRICTED THE DISALLOWANCE AT RS. 2 00 000/- BY OBSERVING AS UNDER: THE APPELLANT CLAIMED PURCHASES OF JORRY MATERIALS OF RS.45 14 750/-. THE A.O. CALLED FOR THE EVIDENCES IN SUPPORT OF THE PURCHASES. IN THE ABSENCE OF EVIDENCE THE AO MADE ESTIMATED DISALLOWANCE OF 20% OF THE PURCHASES. TH E QUANTUM OF DISALLOWANCE MADE BY THE A.O IS ON THE HIGH SIDE. A DISALLOWANCE OF RS. 2 00 000/- WOULD MEET THE ENDS OF 2 ITA NO.1880/K/2009 MD. MOSARAF MIDDAY AY:2006-07 JUSTICE. THE DISALLOWANCE OF RS.2 00 000/- IS SUST AINED. THE APPELLANT GETS A RELIEF OF RS.7 02 950/- 9 02 950 2 00 000). WE FIND THAT THE ASSESSEE COULD NOT CONTEST THAT HE HAS NOT FILED THE EVIDENCE OF PURCHASES BEFORE THE CIT(A). WE FIND THAT THE CIT(A) HAS MAD E A FURTHER ESTIMATION OF RS.2 00 000/- WHILE RESTRICTING THE DISALLOANCE TO THAT EXTENT AS AGAINST THE DISALLOWANCE MADE BY AO AT RS.9 02 950/-. IT IS PURELY AN ESTIMATE AND NOTHIN G ELSE. AS THE AO HAS MADE ESTIMATE AND CIT(A) HAS ALSO MADE HIS OWN ESTIMATE WE DO NOT WA NT TO INTERFERE IN THE SAME. ACCORDINGLY THE ORDER OF CIT(A) ON THIS ISSUE IS CONFIRMED AND THIS ISSUE OF REVENUES APPEAL IS DISMISSED. 4. THE SECOND ISSUE IN THIS APPEAL OF REVENUE IS AS REGARDS TO THE ORDER OF CIT(A) DELETING THE DISALLOWANCE OF DEDUCTION OF RS.95 66 334/- BEI NG PAYMENT TO LABOURERS FOR NON-DEDUCTION OF TDS U/S. 194C OF THE ACT AND DISALLOWING BY INVO KING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. FOR THIS REVENUE HAS RAISED THE FOLLOWIN G GROUND NO.2: 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LD. CIT(A) IS NOT JUSTIFIED TO DELETE THE ADDITION OF RS.95 66 334/- IN SPITE OF T HE FACT THAT THE ASSESSEE VIOLATED THE PROVISION OF SECTION 194C OF THE I. T. ACT 1961 FO R NOT DEDUCTING TAX ON PAYMENT EXCEEDING RS.50 000/- TO THE PARTIES WHO WERE UNDOU BTEDLY SUBCONTRACTORS OF THE ASSESSEE WHICH WAS ADMITTED BY THE AR OF THE ASSESSEE DURIN G THE HEARING ON 18.08.08 (VIDE ORDER SHEET NOTE) AND THE FACT OF SUBCONTRACT WAS FURTHER CONFIRMED FROM LOCAL ENQUIRY (VIDE ITIS REPORT DT. 03.08.09 DURING REMAND PROCEEDINGS .) 5. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND THE RELEVANT ASSESSMENT YEAR INVOLVED IS 2006-07. HOWEVER REVENUES CONTE NTION IS THAT THIS IS A SUB-CONTRACT BUT ASSESSEES CONTENTION IS THAT IT IS IN THE BUSINESS OF JORRI EMBROIDERY WORK AND IT HAS GOT IT DONE THROUGH 70 PERSONS ON CONTRACT BASIS AND THIS IS NO T A SUB-CONTRACT IT IS A DIRECT CONTRACT. WE FIND THAT THE PAYMENTS WERE MADE TO PERSONS INDIVID UALLY AS PER LIST SUBMITTED AND ASSESSEE HIMSELF HAS GIVEN CONTRACT AND IT IS NOT A SUB-CONT RACT. ONCE THIS IS THE POSITION ASSESSEES CASE FALLS U/S. 194C(1) OF THE ACT AND ONCE THIS IS A CO NTRACT AND ASSESSEE BEING AN INDIVIDUAL AND PAYMENTS ARE ALSO MADE TO INDIVIDUALS THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. SHRI RINKU MALLICK ITAT NO. 96 OF 2012 IN G.A. NO. 1368 OF 2012 DATED 15.06.2012 AND STATED THAT THE FOLLOWING SUBSTANTIAL QUESTIONS OF LAW WERE PLACED BEFORE THE HONBLE COURT: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE TRIBUNAL WAS JUSTIFIED IN LAW IN DELETING THE DISALLOWANCE UNDER SECTION 4 0(A)(IA) READ WITH SECTION 194C(2) ON THE GROUND THAT THE ASSESSEE IS AN INDIVIDUAL. II) WHETHER ON THE FACTS AND IN THE CIRCUSTANCES OF THE CASE THE TRIBUNAL WAS JUSTIFIED IN LAW IN HOLDING THE ASSESSEE IS AN INDIVIDUAL DESPIT E THE FACT THAT THE PROVISION OF SECTION 194C(1) IS APPLICABLE TO AN INDIVIDUAL WITH EFFECT FROM 1.6.2007 WHICH IS CONTRARY TO THE ASSESSMENT YEAR INVOLVED IN THE INSTANT CASE. 3 ITA NO.1880/K/2009 MD. MOSARAF MIDDAY AY:2006-07 AND THE HONBLE HIGH COURT DISMISSED THE REVENUES APPEAL BY OBSERVING AS UNDER: WE HAVE HEARD THE LD. COUNSEL SMT. SINHA (DAS DE) APPEARING FOR THE APPELLANT AND WE HAVE GONE THROUGH THE IMPUGNED JU DGMENT AND ORDER. WE ARE OF THE VIEW THAT THIS APPEAL DOES NOT REQUIRE ADMIS SION FOR HEARING AS THE APPLICABILITY OF LAW INVOLVED HEREIN IS ADMITTEDLY SETTLED. IT IS ADMITTED POSITION THAT THE MATTER RELATES TO THE ASSESSMENT YEAR 2006 -07 WHEREAS SECTION 194C(1) HAS BEEN MADE APPLICABLE TO THE INDIVIDUAL ASSESSEE WITH EFFECT FROM 1.6.2007. THERE IS NO DISPUTE THAT THE RESPONDENT IS AN INDIV IDUAL ASSESSEE. CONSIDERING THE POSITION OF THE LAW THE LEARNED TR IBUNAL HAS CONSISTENTLY HELD THAT SECTION 194C(1) CANNOT BE MADE APPLICABLE FOR THE ASSESSMENT YEAR 2006- 07. IN VIEW OF THE ABOVE PRINCIPLE LAID DOWN BY HONBLE JURISDICTIONAL HIGH COURT THAT THE PROVISIONS OF SECTION 194C(1) OF THE ACT HAS BEEN M ADE APPLICABLE TO THE INDIVIDUALS W.E.F. 01.06.2007 THIS PROVISIONS WILL NOT APPLY TO THE F ACTS OF THE PRESENT CASE. RESPECTFULLY FOLLOWING THE DECISION CITED SUPRA WE DISMISS THIS GROUND OF APPEAL OF REVENUE. 6. IN THE RESULT APPEAL OF REVENUE IS DISMISSED. 7. ORDER IS PRONOUNCED IN THE OPEN COURT ON 13 TH FEB. 2014 SD/- SD/- . . . . ' '' ''# '#'# '# $% (ABRAHAM P. GEORGE) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 13TH FEBRUARY 2014 12 '3' 4 JD.(SR.P.S.) $0 5 . 6$ )7- COPY OF THE ORDER FORWARDED TO: 1 . - / APPELLANT ITO WARD-46(2) KOLKATA 2 ./ - / RESPONDENT MD. MOSARAF MIDDAY VILL. BRINDABAN PUR ULUBERIA HOWRAH-711 316. 3 . 0' ( )/ THE CIT(A) KOLKATA 4. 5. 0' / CIT KOLKATA <= .' / DR KOLKATA BENCHES KOLKATA / ./ TRUE COPY $0'>/ BY ORDER ' /ASSTT. REGISTRAR .