M/s. Shree Builders, Jagatsinghpur v. ACIT, Cuttack

ITA 212/CTK/2015 | 2008-2009
Pronouncement Date: 20-10-2016 | Result: Allowed

Appeal Details

RSA Number 21222114 RSA 2015
Assessee PAN AABCB6149H
Bench Cuttack
Appeal Number ITA 212/CTK/2015
Duration Of Justice 1 year(s) 5 month(s) 15 day(s)
Appellant M/s. Shree Builders, Jagatsinghpur
Respondent ACIT, Cuttack
Appeal Type Income Tax Appeal
Pronouncement Date 20-10-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 20-10-2016
Assessment Year 2008-2009
Appeal Filed On 05-05-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH CUTTACK BEFORE SHRI N. S SAINI ACCOUNTANT MEMBER ITA NO.212 /CTK/2015 ASSESSMENT YEAR : 2008 - 2009 M/S. SHREE BUILDERS QR. NO.NB/237 NUA BAZAR PARADEEP DIST: JAGATSINGHPUR VS. ACIT CIRCLE - 1(2) CUTTACK PAN/GIR NO. AABCB 6149 H (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI A.P.MISHRA AR REVENUE BY : SHRI SUVENDU DUTTA DR DATE OF HEARING : 20 /10 / 2016 DATE OF PRONOUNCEMENT : 20 /10 / 2016 O R D E R THIS I S AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - CUTTACK DATED 29.12.2014 FOR THE ASSESSMENT YEAR 2008 - 2009 . 2. THE SOLE GRIEVANCE OF THE ASSESSEE IN THIS APPEAL IS THAT THE LD CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF RS.2 80 264/ - UNDER THE HEAD TRANSPORTATION CHARGES AND RS.9 52 147/ - UNDER THE HEAD HIRING CHARGES 2 ITA NO.212/CTK/2015 ASSESSMENT YEAR :2008 - 2009 FOR NON - DEDUCTION OF TDS FROM THE PAYMEN TS MADE BY THE ASSESSEE UNDER SECTION 40(A)(IA) OF THE ACT. 3. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE UNDISPUTED FACTS OF THIS CASE ARE THAT THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS PAID TRANSPORTATI ON C HARGES OF RS.2 80 264/ - AND HIRING CHARGES OF RS.9 52 147/ - WITHOUT DEDUCTING TDS FROM THE SAID PAYMENTS THEREFORE BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT HE DISALLOWED THE EXPENSES CLAIMED BY THE ASSESSEE. 4. BEFORE THE LD CIT(A) IT WAS SUBMITTED BY THE ASSESSEE THAT THERE IS NO OUTSTANDING FOR PAYMENT TOWARDS TRANSPORTATION AND HIRING CHARGES IN THE BALANCE SHEET AND THEREFORE THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT ARE NOT ATTRACTED. 5. THE LD CIT(A ) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE OBSERVED THAT THE HONBLE HIGH COURT OF CALCUTTA IN THE CASE OF CRESCENT EXPORT SYNDICATES AND IN THE CASE OF MD. JAKIR HUSSAIN MANDAL AND HONBLE GUJURAT HIGH COURT IN THE CASE OF SIKANDAR KHAN N. TUN VA R HAS HELD THAT EVEN AMOUNTS ALREADY PAID HAVE TO BE DISALLOWED UNDER SECTION 40(A)(I A) OF THE ACT. THEREFORE HE CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 6. BEFORE ME LD A.R. OF THE ASSESSEE SUBMITTED THAT THE HONBLE ALLAHABAD HIGH COURT IN THE CA SE OF CIT VS. VICTOR SHIPPING SERVICES (P) LTD. 3 ITA NO.212/CTK/2015 ASSESSMENT YEAR :2008 - 2009 (2013) 357 IT R 642(ALL) HAS HELD THAT FOR DISALLOWING EXPENSES FROM BUSINESS AND PROFESSION ON THE GROUND THAT TAX HAS NOT BEEN DEDUCTED AT SOURCE THE AMOUNT SHOULD BE PAYABLE AND NOT IT HAS BEEN PAID BY THE END OF THE YEAR . THE TRIBUNAL HAD NOT COMMITTED ANY ERROR IN RECORDING A FINDING OF FACT AND NO QUESTION OF LAW AROSE FOR CONSIDERATION IN THE MATTER. HE ALSO SUBMITTED THAT THAT TH E SLP FILED AGAINST THE DECISION OF HONBLE ALLAHABAD HIGH COURT HAS BEEN DISMISSED BY THE HONBLE SUPREME COURT VIDE JUDGMENT DATED 2.7.2014 IN CC NO.(S) 8068/2014. 7. LD A.R. OF THE ASSESSEE FURTHER SUBMITTED THAT AS PER SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT WHERE AN ASSESSEE FAILS TO DEDUCT THE WHOLE OR ANY PART OF THE TAX IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER XVII - B ON ANY SUCH SUM BUT IS NOT DEEMED TO BE AN ASSESSEE IN DEFAULT UNDER THE FIRST PROVISO TO SUB - SECTION (1) OF SECTION 201 THEN FOR THE PURPOSE OF THIS SUB - CL AUSE IT SHALL BE DEEMED THAT THE ASSESSEE HAS DEDUCTED AND PAID TAX ON SUCH SUM ON THE DATE OF FURNISHI NG OF RETURN OF INCOME BY THE RESIDENT PAYEE REFERRED TO IN THE SAID PROVISO. 8. HE FURTHER SUBMITTED THAT ACCORDING TO PROVISO TO SECTION 201(1) OF THE ACT WHERE ANY PERSON INCLUDING THE PRINCIPAL OFFICER OF A COMPANY WHO FAILS TO DEDUCT THE WHOLE OR AN Y PART OF THE TAX IN ACCORDANCE WITH THE PROVISIONS OF THIS CHAPTER ON THE SUM PAID TO A RESIDENT OR ON THE SUM CREDITED TO THE 4 ITA NO.212/CTK/2015 ASSESSMENT YEAR :2008 - 2009 ACCOUNT OF RESIDENT SHALL NOT BE DEEMED TO BE AN ASSESSEE IN DEFAULT IN RESPECT OF SUCH TAX IF SUCH RESIDENT (I) HAS FURNISHE D HIS RETURN OF INCOME UNDER SECTION 139 (II) HAS TAKEN INTO ACCOUNT SUCH SUM FOR COMPUTING INCOME IN SUCH RETURN OF INCOME; AND (III) HAS PAID THE TAX DUE ON THE INCOME DECLARED BY HIM IN SUCH RETURN OF INCOME A ND THE PERSON FURNISHES A CERTIFICATE TO T HIS EFFECT FROM AN ACCOUNTANT IN SUCH FORM AS MAY BE PRESCRIBED. IT WAS THEREFORE THE SUBMISSION OF THE LD A.R. OF THE ASSESSEE THAT THE ISSUE SHOULD BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR EXAMINING WHETHER THE RECIPIENT OF THE AMOUNT PAID BY THE ASSESSEE HAS INCLUDED THE SAID AMOUNT IN THE RETURN OF INCOME FILED AND PAID DUE TAX THEREON. IF THAT BE SO THEN THE DISALLOWANCE MADE IN THE HANDS OF THE ASSESSEE OF THE EXPENSES CLAIMED SHOULD BE DELETED. HE ALSO SUBMITTED THAT THE ASSESSI NG OFFICER SHOULD ALSO BE DIRECTED TO VERIFY IF NO AMOUNT IS OUTSTANDING AND PAYABLE AT THE E ND OF THE YEAR TOWARDS PAYMENT OF TRANSPORTATION CHARGES AND HIRING CHARGES THEN NO DISALLOWANCE COULD BE MADE IN THE HANDS OF THE ASSESSEE IN VIEW OF THE DECISIO N OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF VICTOR SHIPPING SERVICES (P) LTD (SUPRA). 5 ITA NO.212/CTK/2015 ASSESSMENT YEAR :2008 - 2009 HE SUBMITTED THAT WHERE THERE ARE CONTRARY DECISIONS OF HONBLE HIGH COURTS ON AN ISSUE AND NONE OF WHICH IS HONBLE JURISDICTIONAL HIGH COURT THEN THE DECISION IN FAVOUR OF THE ASSESSEE SHOULD BE FOLLOWED IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. VEGETABLE PRODUCTS LTD. 88 ITR 192 (SC). 9. ON THE OTHER HAND LD D.R. RELIED ON THE ORDERS OF LOWER AUTHORITIES. 10. IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE I AM OF THE CONSIDERED VIEW THAT IT IS A FIT CASE FOR REMANDING THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR VE RIFICATION WHETHER ANY AMOUNT IS OUTSTANDING OR PAYABLE AS AT THE END OF THE YEAR UNDER THE HEAD TRANSPO RTATION CHARGES AND HIRING CHARGES BY THE ASSESSEE OR NOT. IF NO AMOUNT IS OUTSTANDING AND PAYABLE AT THE END OF THE YEAR THEN NO DISALLOWANCE IS TO BE MADE IN THE HANDS OF THE ASSESSEE U/S.40(A)(IA) OF THE ACT IN VIEW OF THE DECISION OF HONBLE ALLAH ABAD HIGH COURT IN THE CASE OF VICTOR SHIPPING SERVICES (P) LTD (SUPRA) AS THE REVENUE HAS NOT POINTED OUT ANY DECISION OF HONBLE JURISDICTIONAL HIGH COURT OR HONBLE SUPREME COURT IN FAVOUR OF THE REVENUE. STILL FURTHER THE AO SHALL VERIFY WHETHER RECI PIENT OF THE AMOUNT OF TRANSPORTATION CHARGES AND HIRING CHARGES HAS FILED RETURN OF INCOME AND INCLUDED THE AMOUNTS PAID TO THEM IN THE RETURN OF INCOME AND PAID THE DUE TAX THEREON. IF THE ASSESSING OFFICER FINDS THAT RECIPIENT OF THE AMOUNT HAS PAID TH E TAX DUE ON THE SAID AMOUNTS THEN NO DISALLOWANCE IN THE HANDS OF 6 ITA NO.212/CTK/2015 ASSESSMENT YEAR :2008 - 2009 THE ASSESSEE IS CALLED FOR. THE ASSESSEE SHALL FILE NECESSARY EVIDENCE IN SUPPORT OF THE SAME BEFORE THE ASSESSING OFFICER AS AND WHEN CALLED UPON TO DO SO. I ORDER ACCORDINGLY. THUS T HE GROU NDS OF APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PUR P OSES. 11. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCE D IN THE OPEN COURT ON 20 /10 /2016 IN THE PRESENCE OF PARTIES. SD/ - ( N. S SAINI ) A CCOUNTANT MEMBER CUTTACK; DATED 20 /10 /2016 B.K.PARIDA SPS COPY OF THE ORDER FORWARDED TO : BY ORDER ASST.REGISTRAR ITAT CUTTACK 1. THE APPELLANT : M/S. SHREE BUILDERS QR. NO.NB/237 NUA BAZAR PARADEEP DIST: JAGATSINGHPUR 2. THE RESPONDENT. ACIT CIRCLE - 1(2) CUTTACK 3. THE CIT(A) CUTTACK 4. CIT CUTTACK 5. DR ITAT CUTTACK 6. GUARD FILE. //TRUE COPY//