M/s Davesmen India, Kolkata v. Income Tax Officer, Ward - 33(1), Kolkata, Kolkata

ITA 2542/KOL/2013 | 2009-2010
Pronouncement Date: 19-10-2016

Appeal Details

RSA Number 254223514 RSA 2013
Assessee PAN AACFD4040M
Bench Kolkata
Appeal Number ITA 2542/KOL/2013
Duration Of Justice 2 year(s) 11 month(s) 14 day(s)
Appellant M/s Davesmen India, Kolkata
Respondent Income Tax Officer, Ward - 33(1), Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 19-10-2016
Appeal Filed By Assessee
Bench Allotted C
Tribunal Order Date 19-10-2016
Date Of Final Hearing 23-08-2016
Next Hearing Date 23-08-2016
Assessment Year 2009-2010
Appeal Filed On 05-11-2013
Judgment Text
ITA NO. 2542/KOL/2013 M/S. DAVESMEN INDIA 1 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH KOLKATA BEFORE SHRI M.BALAGANESH ACCOUNTANT MEMBE R AND SHRI S.S.VISWANETHRA RAVI JUDICIAL MEMBE R I.T.A. NO. 2542/KOL/2013 A.Y: 2009-10 M/S. DAVESMEN INDIA VS. INCOME-TAX OFFICER PAN: AACFD 4040M WARD 33(1) KO LKATA (APPELLANT) (RESPONDENT) APPEARANCES BY: SHRI M.K. DATTA FCA LD.AR FOR THE ASSESSEE SHRI RAJAT KUMAR KUREEL JCIT LD.SR.DR FOR THE REVE NUE DATE OF HEARING : 24-08-2016 DATE OF PRONOUNCEMENT : 19-10-2016 O R D E R SHRI S.S. VISWANETHRA RAVI JM :- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 27-08-2013 OF THE COMMISSIONER OF INCOME TAX (APPEALS) KOLKATA FOR THE ASSESSMENT YEAR 2009-10. 2. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FO LLOWING GROUND OF APPEAL:- 1. THAT THE LD. CIT(APPEALS)-XIX KOLKATA HAS GROSS LY ERRED BOTH ON LAW AS WELL AS ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING ADDITION O F THE ASSESSING OFFICER AN AMOUNT OF RS.3 00 001/- U/S. 40(A)(IA) OF THE INCOME TAX ACT 1961 FOR ALLEGED N ON- DEDUCTION OF TAX AT SOURCE. 3. BRIEF FACTS OF THIS CASE ARE THAT THE ASSESSEE I S A FIRM AND INVOLVED IN THE BUSINESS OF TRADING OF TYRE AND PRO DUCTION OF CHEMICALS AND IRON. THE ASSESSEE FILED ITS RETURN O F INCOME ITA NO. 2542/KOL/2013 M/S. DAVESMEN INDIA 2 DECLARING A TOTAL INCOME OF RS.6 73 260/-. THE CASE WAS SELECTED FOR SCRUTINY BY ISSUING NOTICE U/S. 143(2) OF THE ACT. IN RESPONSE TO WHICH THE ASSESSEE FILED ITS BOOKS OF ACCOUNT BANK STATEMENTS AND OTHER EVIDENCES INCLUDING DETAILS OF TDS. 4. DURING SUCH PROCEEDINGS THE AO FOUND THAT THE A SSESSEE DEBITED AN AMOUNT OF RS.6 88 569/- AS EXHIBITION EX PENSES. OUT OF WHICH THE ASSESSEE PAID AN AMOUNT OF RS.3 00 000 /- TO CONFEDERATION OF INDIAN INDUSTRY (CII). IN EXPLANAT ION THE ASSESSEE ALSO PRODUCED A CERTIFICATE ISSUED U/S. 19 7(1) OF THE ACT BY THE ACIT [TDS] CIR-49(1) DELHI AUTHORISING THE ASSESSEE NOT TO DEDUCT TAX AT SOURCE ON SUCH PAYMEN T MADE TO CONFEDERATION OF INDIAN INDUSTRY [CII]. ACCORDING T O THE AO THE SAID CERTIFICATE WAS NOT ISSUED IN FAVOUR OF ASSESS EE TO CLAIM EXEMPTION AND WAS ISSUED IN FAVOUR OF M/S. DAVESME N INDIA PVT. LTD. THE AO WAS OF THE VIEW THAT SINCE THE SAI D CERTIFICATE WAS ISSUED IN FAVOUR OF M/S. DAVESMEN INDIA PVT. L TD AND NOT IN THE NAME OF M/S. DAVESMEN INDIA THE ASSESSEE HE REIN HE DISALLOWED THE PAYMENT OF RS.3 00 000/- MADE TO CON FEDERATION OF INDIAN INDUSTRY BY THE ASSESSEE AND ADDED THE SA ME TO THE TOTAL INCOME OF THE ASSESSEE U/S. 40(A)(IA) OF THE ACT. 5. BEFORE THE CIT-A THE ASSESSEE CONTENDED THAT IT WAS DUE TO CLERICAL ERROR WHERE NAME OF THE ASSESSEE WAS MI STAKENLY MENTIONED AS M/S. DAVESMEN INDIA PVT. LTD ON EXEMPT ION CERTIFICATE ISSUED U/S. 197(1) OF THE ACT. BEFORE H IM IT WAS ALSO CONTENDED THAT THE INVOICE WAS RAISED IN THE NAME OF FIRM AND SUCH PAYMENT WAS MADE THROUGH ITS BANK ACCOUNT. IT WAS FURTHER ARGUED BEFORE HIM THAT M/S. DAVESMEN INDIA PVT. LTD DID NOT CLAIM ANY TDS IN ITS RETURN OF INCOME. THE CIT-A AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE WAS OF THE OPINION ITA NO. 2542/KOL/2013 M/S. DAVESMEN INDIA 3 THAT THE ASSESSEE SHOULD HAVE FILED RECTIFICATION P ETITION IN THIS REGARD. NOT SATISFIED WITH SUCH CONTENTIONS OF THE ASSESSEE HE CONFIRMED THE IMPUGNED ORDER OF AO. 6. AGGRIEVED BY SUCH ORDER OF THE CIT-A NOW THE AS SESSEE IS IN SECOND APPEAL BEFORE US BY RAISING THE ABOVE MEN TIONED GROUND OF APPEAL. 7. BEFORE US THE LD.AR FILED A PAPER BOOK CONTAININ G 11 DOCUMENTS RUNNING FROM PAGES 1 TO 24 WHEREIN HE DR EW OUR ATTENTION TO PAGE 20 TO SHOW THAT SAID M/S. DAVESM EN INDIA PVT. LTD DID NOT CLAIM ANY TDS AND PAGE 21 TO SHOW THAT M/S. DAVESMEN INDIA PVT. LTD WAS INCORPORATED ON 12-02- 08 BY REGISTRAR OF COMPANIES [ROC]. 8. ON THE OTHER HAND THE LD.DR HAS RELIED ON THE O RDERS OF THE AUTHORITIES BELOW. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD INCLUDING THE DETAILS AVAILABLE IN THE PAPER BOOK. WE FIND THAT THE AO DISALLOWED THE AMOUNT OF RS.3 00 000/- ON THE GROUND THAT THE SAID CERTIFICA TE ISSUED TO CLAIM EXEMPTION WAS IN THE NAME OF OTHER ENTITY AND NOT IN THE NAME OF ASSESSEE HEREIN BEING M/S. DAVESMEN INDIA. IT IS ALSO SEEN FROM THE RECORD THAT THERE IS NO ADVERSE INFER ENCE DRAWN BY THE AO WITH REGARD TO RAISING OF INVOICE AND SUC H PAYMENT WAS CAUSED THROUGH ASSESSEES BANK ACCOUNT. ON PERU SAL OF DOCUMENTS FILED IN THE PAPER BOOK SHOW THAT M/S. DA VESMEN INDIA PVT. LTD WAS INCORPORATED IN THE YEAR 2008 A ND THERE WAS NO FINANCIAL TRANSACTION. IT IS ALSO NOTICED THAT ON SUCH ENTITY THE ASSESSEE FILED ITS RETURN OF INCOME ALONG WITH COMPUTATION ITA NO. 2542/KOL/2013 M/S. DAVESMEN INDIA 4 OF INCOME AND CERTIFICATE OF INCORPORATION TO SHOW THAT M/S. DAVESMEN INDIA PVT. LTD WAS INCORPORATED DURING THE YEAR I.E UNDER CONSIDERATION HAS NO FINANCIAL TRANSACTION A ND HAS NO CLAIM OF TDS. TAKING INTO CONSIDERATION THE FACTS O F THE CASE AND SUBMISSIONS OF THE ASSESSEE WE ARE OF THE VIEW THAT THIS IS A CLERICAL ERROR WHERE NAME OF THE ASSESSEE WAS MIS TAKENLY MENTIONED AS M/S. DAVESMEN INDIA PVT. LTD INSTEAD O F M/S. DAVESMEN INDIA IN THE SAID CERTIFICATE ISSUED U/S. 197(1) OF THE ACT. WE ARE OF THE VIEW THAT THE MISTAKE INADVERTEN TLY CREPT IN AND IN SUCH CIRCUMSTANCES THE ADDITION MADE THEREO N IS NOT SUSTAINABLE. THEREFORE THE ADDITION MADE BY THE AO AND CONFIRMED BY THE CIT-A IS HEREBY DELETED. ACCORDIN GLY THE GROUND RAISED BY THE ASSESSEE IS ALLOWED. 10. IN THE RESULT THE APPEAL FILED BY THE ASSESSE E IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH OCTOBER 2016. SD/- SD/- M.BALAGANESH S.S.VISWAN ETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:19/10/2016 1. THE APPELLANT/ASSESSEE: M/S. DAVESMEN INDIA 12 LOR D SINHA ROAD KOLKATA-71. 2 . THE RESPONDENT/DEPARTMENT: INCOME TAX OFFICER W 3 3(1) 10B MIDDLETON ROW KOL-71. 3. CIT 4. CIT(A) 5. THE DEPARTMENTAL REPRESENTATIVE 6. GUARD FILE TRUE COPY BY ORDER ** PRADIP SPS ASSISTANT REGISTRAR COPY OF THE ORDER FORWARDED TO:-