ACIT, CIR-3, ASANSOL, Kolkata v. Sri Deepak Gupta, Raniganj

ITA 443/KOL/2014 | 2010-2011
Pronouncement Date: 29-11-2017 | Result: Dismissed

Appeal Details

RSA Number 44323514 RSA 2014
Assessee PAN AHYPG4709K
Bench Kolkata
Appeal Number ITA 443/KOL/2014
Duration Of Justice 3 year(s) 8 month(s) 11 day(s)
Appellant ACIT, CIR-3, ASANSOL, Kolkata
Respondent Sri Deepak Gupta, Raniganj
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2017
Appeal Filed By Department
Tags No record found
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 29-11-2017
Date Of Final Hearing 27-04-2017
Next Hearing Date 27-04-2017
First Hearing Date 27-04-2017
Assessment Year 2010-2011
Appeal Filed On 18-03-2014
Judgment Text
DEEPAK GUPTA I.T.A NO.443 & 491/KOL/2014 ASSESSMENT YEAR: 2010-11 PAGE | 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA BEFORE: SHRI P. M. JAGTAP ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI JUDICIAL MEMBER I.T.A NO.443/KOL/2014 (ASSESSMENT YEAR: 2010-11) A.C.I.T CIR 3 ASANSOL REVENUE/DEPARTMENT VS DEEPAK GUPTA ASSESSEE [PAN: AHYPG 4709 K] & I.T.A NO.491/KOL/2014 (ASSESSMENT YEAR: 2010-11) DEEPAK GUPTA ASSESSEE [PAN: AHYPG 4709 K] VS A.C.I.T CIR 3 ASANSOL REVENUE/DEPARTMENT FOR THE ASSESSEE : SHRI SUBASH AGARWAL ADVOCATE FOR THE REVENUE/DEPARTMENT : SHRI SALLONG YADEN ADDL. CIT DATE OF HEARING : 31.08.2017 DATE OF PRONOUNCEMENT : 29.11.2017 ORDER SHRI S.S. VISWANETHRA RAVI JM: BOTH THESE CROSS APPEALS BY THE REVENUE AND ASSESSE E AGAINST ORDER DATED 28.02.2013 PASSED BY THE COMMISSIONER O F INCOME TAX (APPEALS) ASANSOL FOR THE ASSESSMENT YEAR 2010-11. 2. THE LD.AR PRAYED TO TAKE UP HIS APPEAL FIRST AND DECIDE THE ISSUES IN TERMS OF REVISED GROUNDS OF APPEAL. THE L D. DR AGREED FOR THE SAME. SINCE THE ISSUES RAISED IN BOTH THESE AP PEALS BY THE REVENUE AND ASSESSEE ARE IDENTICAL AND SIMILAR TO T HE FACTS. THEREFORE WE PROCEED TO HEAR THE ASSESSEES APPEAL AND PASS A CONSOLIDATED ORDER FOR CONVENIENCE. DEEPAK GUPTA I.T.A NO.443 & 491/KOL/2014 ASSESSMENT YEAR: 2010-11 PAGE | 2 3. FIRST WE SHALL TAKE UP ITA NO.491/KOL/2014 OF A SSESSEE. 4. GROUND NOS-1 AND 2 ARE RELATING TO DISALLOWANCE MADE ON ACCOUNT OF FAILURE FOR DEDUCTION OF TDS. THE AO DUR ING THE COURSE OF SCRUTINY PROCEEDINGS FOUND THAT THE ASSESSEE DID NO T EXPLAIN WHY PAYEES DID NOT FURNISH FORM NO.15J AND FORM NO.15I. ACCORDINGLY NOTICE U/S 133(6) WAS ISSUED TO FOUR TRANSPORT OPER ATORS FOR VERIFICATION. OUT OF WHICH THREE LETTERS ADDRESSED TO MR. SATISH KUMAR MR. AMARJEET BHAGAT & MR. BIDYUT KAR RETURNE D UNSERVED WITH POSTAL REMARKS NOT KNOWN/INCOMPLETE ADDRESS/NOT F OUND. A SHOW- CAUSE NOTICE WAS ISSUED TO THE ASSESSEE ON ACCOUNT OF THE AMOUNTS PAID TO THE SAID THREE TRANSPORTERS SHOULD NOT BE A LLOWED IN VIEW OF THE NON-COMPLIANCE NOTICES ISSUED U/S 133(6) OF THE ACT. THE AO OBSERVED THAT THE ASSESSEE DID NOT GIVE PROPER EXPL ANATION IN PRODUCING REQUIRED DETAILS OF PERSONS FOR VERIFICAT ION AND VERACITY OF SAID TRANSACTION. THE AO BY PLACING RELIANCE IN THE CASE OF CIT VS. DURGA PRASAD MORE REPORTED IN 82 ITR 54 AND IN THE CASE OF CIT VS. CALCUTTA AGENCY LTD. REPORTED IN 19 ITR 191 DISALLO WED ON ACCOUNT OF TRANSPORTING CHARGES TO AN AMOUNT OF RS.48 09 914/- PERTAINING TO THESE FOUR TRANSPORTERS LIKEWISE AN AMOUNT OF RS.54 18 875.69 WAS ALSO DISALLOWED TO THE TRANSACTIONS MADE WITH ONE M R.RAJENDRA GUPTA FOR NOT SUBMITTING 15J AND FOR NOT COMPLYING NOTICE S U/S133(6) AND ADDED THE BOTH TO THE TOTAL INCOME OF THE ASSESSEE FOR VIOLATION OF SECTION 194C OF ACT BY INVOKING THE PROVISION U/SEC TION 40(A)(IA) OF THE ACT. 5. THE CIT(A) DECIDED THE BOTH THE ISSUES TOGETHER AND PARTLY ALLOWED AS UNDER: (A) THE AMOUNTS PAID DURING THE PERIOD 01-04-2009 TO 30- 09-2009 WERE CONFIRMED FOR NOT OBTAINING FORM 15-I PRIOR TO PAYMENT FROM MR. AMARJEET BHAGAT DEEPAK GUPTA I.T.A NO.443 & 491/KOL/2014 ASSESSMENT YEAR: 2010-11 PAGE | 3 MR. BIDYUT KAR MR. SHIVANATH GORAI MR. SATISH KUMAR AND SHRI RAJENDRA GUPTA (B) DELETED THE IMPUGNED AMOUNTS PAID DURING THE 01 -10- 2009 TO 31-03-2009 ON FINDING THAT THE ASSESSEE MAD E COMPLIANCE TO SECTION 194C (6) OF THE ACT. 6. THE LD. AR SUBMITS THAT THE CIT (A) HAS GIVEN RE LIEF PARTLY AND THE ISSUE CHALLENGED IS TO BE DECIDED IN TERMS OF R EVISED GROUNDS OF APPEAL RAISED BEFORE THIS TRIBUNAL INVOLVING THE AM OUNTS PAID DURING THE PERIOD FROM 01-04-2009 TO 30-09-2009 TO AN EXTE NT OF RS.26 29 505/- WHICH WAS THE AMOUNT CONFIRMED BY TH E CIT-A. THE LD.AR ARGUED THAT ALTERNATIVELY THAT IN VIEW OF THE INSERTION OF SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT AND PRAYED TO RESTORE THE ISSUE ON HAND TO THE FILE OF AO AND PLACED RELIANCE ON J UDGMENT DT. 26-8- 2015 OF HONBLE HIGH COURT OF DELHI IN THE CASE OF CIT-1 VS. ANSAL LAND MARK TOWNSHIP(P) LTD REPORTED IN 377 ITR 635 ( DEL). THE LD.AR ARGUED THAT THE ASSESSEE WOULD PROVIDE ALL THE DETA ILS REGARDING THE PAYEES AND THE AO CAN VERIFY WHETHER SUCH RECIPIENT S DECLARED THE AMOUNTS RECEIVED FROM THE ASSESSEE IN THEIR RETURNS OF INCOME. 7. BEFORE US THE LD. DR SUBMITS THAT THE ASSESSEE FAILED TO PROVIDE ANY EVIDENCE RELEVANT TO THE IMPUGNED AMOUN TS AND FAILING WHICH THE AO RIGHTLY ADDED THE SAID AMOUNTS FOR VIO LATION OF STATUTORY PROVISIONS. THE LD. DR RELIED ON THE ORDER OF AO. 8. HEARD BOTH SIDES AND PERUSED THE MATERIALS AVAIL ABLE ON RECORD. THE LD.AR MADE ALTERNATIVE ARGUMENTS IN RESTORING T HE ISSUE TO THE FILE OF AO IN VIEW OF THE INSERTION OF SECOND PROVI SO TO SECTION 40(A)(IA) OF THE ACT BEING DECLARATORY AND HAS RETR OSPECTIVE EFFECT DEEPAK GUPTA I.T.A NO.443 & 491/KOL/2014 ASSESSMENT YEAR: 2010-11 PAGE | 4 FROM 01-04-2005. WE ARE OF THE VIEW THAT THE FACTS THEREIN ARE SIMILAR TO THE FACTS OF THE CASE ON HAND. THE LD. A R RELIED ON THE ORDER OF THIS TRIBUNAL IN THE CASE OF SOMA RANI GHOSH VS. DCIT IN ITA NO.1420/KOL/2015. THE LD. AR REFERRED TO PARA NO.3. 1 TO 3.3. THE RELEVANT PORTION FROM THE JUDGMENT OF THIS TRIBUNAL IS REPRODUCED HEREIN BELOW: 33. IN VIEW OF THE ABOVE AND RESPECTFULLY FOLLOWI NG THE JUDICIAL REASONING DELINEATED IN THE ABOVE JUDGMENTS WE FIND THAT IF THE ASSESSEE COMPLIES WITH THE PROVISIONS OF SECTION 194C(6) DISALLOWANCE UNDER S ECTION 40(A)(IA) DOES NOT ARISE JUST BECAUSE THERE IS VIOLATION OF PROVISIONS OF SE CTION 194C(7) OF THE ACT. 34. 34. FROM OUR ABOVE DISCUSSION IT FOLLOWS THAT - I) IN THE CONTEXT OF SECTION 194C(1) PERSON UNDERTA KING TO DO THE WORK IS THE CONTRACTOR AND THE PERSON SO ENGAGING THE CONTRACTO R IS THE CONTRACTEE; II) THAT BY VIRTUE OF THE AMENDMENT INTRODUCED BY FI NANCE ACT (NO.2) 2009 THE DISTINCTION BETWEEN A CONTRACTOR AND A SUB-CONTRACT OR HAS BEEN DONE AWAY WITH AND CL. (III) OF EXPLANATION UNDER 194C(7) NOW CLARIFIES THAT 'CONTRACT' SHALL INCLUDE SUB- CONTRACT; III) SUBJECT TO COMPLIANCE WITH THE PROVISIONS OF SE CTION 194C(6) IMMUNITY FROM TDS UNDER SEC. 194C(1) IN RELATION TO PAYMENTS TO TRANS PORTERS APPLIES TRANSPORTER AND NON-TRANSPORTER CONTRACTEES ALIKE; IV) UNDER SEC. 194C(6) AS IT STOOD PRIOR TO THE AME NDMENT IN 2015 IN ORDER TO GET IMMUNITY FROM THE OBLIGATION OF TDS FILING OF PAN OF THE PAYEE-TRANSPORTER ALONE IS SUFFICIENT AND NO CONFIRMATION LETTER AS REQUIRED B Y THE LEARNED CIT IS REQUIRED; V) SECTIONS 194C(6) AND SECTION 194C(7) ARE INDEPENDEN T OF EACH OTHER AND CANNOT BE READ TOGETHER TO ATTRACT DISALLOWANCE U/S 40(A)(IA ) READ WITH SECTION 194C OF THE ACT; AND VI) IF THE ASSESSEE COMPLIES WITH THE PROVISIONS OF SECTION 194C(6) NO DISALLOWANCE U/S 40(A)(IA) OF THE ACT IS PERMISSIBLE EVEN THERE IS VIOLATION OF THE PROVISIONS OF SECTION 194C(7) OF THE ACT. 35. CONSEQUENT TO OUR FINDINGS IN THE PRECEDING PAR AGRAPHS WE REACH A CONCLUSION THAT THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN TRE ATING THE EXPENSE INCURRED BY THE ASSESSEE FOR CARRIAGE INWARD AND CARRIAGE OUTWARD A S DISALLOWABLE UNDER SECTION 40(A)(IA) OF THE ACT AND ADDING BACK RS.1 63 78 648/ - CLAIMED AS EXPENSE TOWARDS CARRIAGE INWARD AND RS.1 13 00 980/- CLAIMED AS EXP ENSE TOWARDS CARRIAGE OUTWARD AND SUCH ADDITIONS SHALL STAND DELETED. 9. RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HONB LE HIGH COURT OF DELHI SUPRA AND ORDER OF COORDINATE BENCH OF KOLKATA TRIBUNAL WE REMAND THE CASE TO AO FOR EXAMINATION AND FOR VERIF ICATION OF THE REQUIRED DETAILS OF THE PAYEES I.E MR. AMARJEET BHA GAT MR. BIDYUT KAR MR. SHIVANATH GORAI MR. SATISH KUMAR AND SH RI RAJENDRA GUPTA AND DIRECT THE ASSESSEE TO COOPERATE IN COMPL ETING THE DEEPAK GUPTA I.T.A NO.443 & 491/KOL/2014 ASSESSMENT YEAR: 2010-11 PAGE | 5 ASSESSMENT. GROUNDS RAISED BY THE ASSESSEE IN THIS REGARD ARE ALLOWED FOR STATISTICAL PURPOSES. 10. NOW WE SHALL TAKE UP ITA NO.443/KOL/2014 FOR A .Y 2010-11 BY THE REVENUE. 11. IN THIS APPEAL THE ONLY GROUND IS TO BE DECIDE D WHETHER THE CIT-A WAS JUSTIFIED IN DELETING THE DISALLOWANCE IN RESPECT OF PAYMENT TO TRANSPORTERS DURING 01.10.2009 TO 31.03.2010 IN THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ASSESSE E CONTENDED BEFORE THE CIT-A THAT THE PANS WERE OBTAINED BY TH E PAYEES PRIOR TO THE PAYMENTS AND THE CIT-A FOUND SATISFIED ON EXAMI NATION OF THE BILLS CONTAINING PANS SOUGHT REMAND REPORT FROM AO WHICH ARE AT PAGES 56 TO 70 OF THE PAPER BOOK. WE FIND FROM THE REMAND REPORT AT PAGE NO-59 OF PAPER BOOK THE AO AVAILED INFORMATION FROM ITD/AIS SYSTEM AND REPORTED THAT THE PANS OF PAYEES I.E MR . SHIVANATH GORAI MR. BIDYUT KAR MR. SATISH KUMAR AND MR. AMA RJEET BHAGAT WERE GENERATED AND OBTAINED PRIOR TO THE PAYMENTS M ADE BY THE ASSESSEE. THEREFORE WE FIND NO INFIRMITY IN THE OR DER OF CIT-A AND IT IS JUSTIFIED. THUS GROUNDS RAISED BY THE REVENUE I N THIS REGARD ARE DISMISSED. 12. IN THE RESULT THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES AND APPEAL OF THE REVENUE IS D ISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON 29.11.2017. SD/- SD/- P. M. JAGTAP S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 29.11.2017 PLACE : KOLKATA RS(SPS) DEEPAK GUPTA I.T.A NO.443 & 491/KOL/2014 ASSESSMENT YEAR: 2010-11 PAGE | 6 COPY OF THE ORDER FORWARDED TO: 1 . ASSESSEE DEEPAK GUPTA C/O. M/S. GUPTA BROTHERS 16 C.L.M. LANE RANIGANJ-713347 W.B. 2 REVENUE/DEPARTMENT ACIT CIRCLE-3 ASANSOL 54 G. T. ROAD(WEST) ASANSOL-713304. 3 . THE CIT(A) KOLKATA 4. 5. CIT KOLKATA DR KOLKATA BENCHES KOLKATA //TRUE COPY// BY ORDER SR.PS/H.O.O ITAT KOLKATA