Shri Ramesh Sharma, Kolkata v. ITO, Ward - 43(3), Kolkata, Kolkata

ITA 554/KOL/2010 | 2007-2008
Pronouncement Date: 21-05-2010

Appeal Details

RSA Number 55423514 RSA 2010
Assessee PAN AKWPS5010L
Bench Kolkata
Appeal Number ITA 554/KOL/2010
Duration Of Justice 2 month(s) 3 day(s)
Appellant Shri Ramesh Sharma, Kolkata
Respondent ITO, Ward - 43(3), Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 21-05-2010
Appeal Filed By Assessee
Bench Allotted B
Tribunal Order Date 21-05-2010
Assessment Year 2007-2008
Appeal Filed On 18-03-2010
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL 'B BENCH : KOLKATA (BEFORE HONBLE SRI D.K.TYAGI J.M. AND HONB LE SRI B.C.MEENA A.M.) I.T.A. NO. 554 /KOL/2010 ASSESSMENT Y EAR : 2007-2008 SRI RAMESH SHARMA VS ITO WARD-43(3) KOLKATA (PAN AKWPS 5010 L) (APPELLANT) (RESPONDENT) APPELLANT BY : SRI R.N.DHAR. RESPONDENT BY : SR I PIYUSH KOLHE. O R D E R PER SHRI B.C.MEENA A.M. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)- XXX KOLKATA DATED 22.01.2010 FOR THE ASSESSMENT Y EAR 2007-08. 2. GROUND OF APPEAL RAISED IS AS FOLLOWS : FOR THAT LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMIN G ADDITION OF RS.3 75 806/- MADE BY THE LD. ITO BASED ON TDS CER TIFICATES AND IGNORING THE FACT THAT ASSESSEE REGULARLY MAINTAINS BOOK S OF ACCOUNTS ON CASH BASIS AND THIS AMOUNT HAVE BEEN VOLUNTARILY OFFERE D AND DULY TAXED IN SUBSEQUENT YEARS. THIS AMOUNTS TO DOUBLE TAXATION AND IS LIABLE TO BE DELETED. 3. THE ISSUE INVOLVED IS THAT THE ASSESSEE HAS CLAI MED THE TDS BUT HAS NOT SHOWN THE INCOME REFLECTED THEREUPON IN THE RETUR N OF INCOME TO THE TUNE OF RS.3 75 806 WHICH HAS BEEN ADDED BY THE A.O. THE ADDITION IS SUSTAINED BY THE CIT(A). THE CIT(A) HAS UPHELD THE ORDER OF THE A. O. BY HOLDING AS UNDER : THE APPELLANT CONTENDS THAT THE A.O. ERRED IN M AKING ADDITION OF BROKERAGE OF RS.3 75 806. IT IS SUBMITTED THAT THE BROKERAGE OF RS.2 70 818/- IS RECEIVABLE FROM M/S RUCHI SOYA I NDUSTRIES LTD. IT IS SUBMITTED THAT RS.1 04 988 IS RECEIVABLE FROM M/S AMBO AGRO PRODUCTS LTD. IT IS SUBMITTED THAT THE APPELLANT MAINTAINE D THE ACCOUNTS ON CASH BASIS AND HENCE BROKERAGE WILL BE OFFERED TO T AX ON RECEIVING THE SAME. IT IS CONTENDED THAT THE A.O. ERRED IN ASSESSING THE BROKERAGE RECEIVABLE. IT IS PRAYED THAT THE ADDITION OF R S.3 75 806/- BE DELETED. 2 THE APPELLANT WAS DUE TO RECEIVE BROKERAGE FR OM M/S RUCHI SOYA INDUSTRIES LTD. OF RS.2 70 818/- AND BROKERAGE R ECEIVABLE FROM M/S AMBO AGRO PRODUCTS LTD. WAS RS. 1 04 988/- . THE C REDIT FOR TDS RELATING TO THIS BROKERAGE IS CLAIMED BY THE APPELLANT FOR THIS ASSESSMENT YEAR. HOWEVER THE APPELLANT CONTENDS THAT SINCE BROKERA GE IS NOT YET RECEIVED IT IS NOT OFFERED FOR TAX. IT IS CONTENDED THAT T HE APPELLANT MAINTAINED ACCOUNTS ON CASH BASIS AND HENCE BROKERAGE WILL B E INCLUDED IN THE INCOME ON THE BASIS OF RECEIPT. AS PER SECTION 19 9 THE CREDIT FOR THE TDS IS AVAILABLE FOR THE YEAR IN WHICH THE INCOME IS ASSESSABLE. FOR THIS ASSESSMENT YEAR M/S RUCHI SOYA INDUSTRIES LTD. AND M/S AMBO AGRO PRODUCTS LTD. CLAIMED BROKERAGE PAYABLE TO THE A PPELLANT AS EXPENSE IN THEIR BOOKS. THE AMOUNT OF BROKERAGE PAYABLE IS CR EDITED TO THE APPELLANTS ACCOUNTS IN THEIR BOOKS. THE TAX FRO M THIS PAYMENT IS ALSO DEDUCTED. THE BROKERAGE INCOME OF RS.3 75 806/- IS ASSESSABLE FOR THIS ASSESSMENT YEAR. THE A.O. IS CORRECT AS PER LAW IN MAKING AN ADDITION OF UNDISCLOSED BROKERAGE OF RS.3 75 806/- . THE A.O S ACTION IS CORRECT AS PER LAW AND IS UPHELD. 4. THE LEARNED A.R. SUBMITTED THAT THE ASSESSEE IS MAINTAINING REGULAR BOOKS OF ACCOUNT ON CASH BASIS AND THE INCOME WHICH TH E ASSESSEE HAS NOT RECEIVED DURING THE YEAR BUT TDS HAS BEEN DEDUCTED THERE UPON SHOULD NOT BE CONSIDERED AS INCOME OF THE YEAR UNDER CONSIDERATI ON. HE ALSO RELIED ON THE DECISION OF THE HONBLE ITAT C BENCH KOLKATA IN ITA NO. 916(KOL)/2009 FOR THE ASSESSMENT YEAR 2005-06 AND HE PLEADED THAT TH ERE SHOULD NOT BE ANY ADDITION IN THIS REGARD AND THE ORDERS OF THE AUTHORITIES B ELOW DESERVE TO BE SET ASIDE. 5. ON THE OTHER HAND THE LEARNED D.R. SUBMITTED THAT THE DECISION OF THE I.T.A.T. IN THE ASSESSEES OWN CASE (SUPRA) IS NO T APPLICABLE TO THE FACTS OF THE PRESENT CASE. HE FURTHER PLEADED THAT THE ASSESSE E HIMSELF HAS CLAIMED TDS DURING THE YEAR AND AS PER THE PROVISIONS OF SECT ION 199 OF THE INCOME TAX ACT THE CREDIT FOR THE TDS CAN BE GIVEN ONLY IN THE YE AR IN WHICH THE INCOME HAS BEEN OFFERED FOR TAXATION AND HE PLEADED TO SUSTAIN THE ORDERS OF THE AUTHORITIES BELOW. 6. AFTER HEARING BOTH THE SIDES AND GOING THROUG H THE DECISION OF THE HONBLE ITAT (SUPRA) WHICH HAS RELIED UPON BY THE LEARNED A.R. WE FIND THAT THE PROVISIONS OF SECTION 198 OF THE INCOME TAX ACT PROVIDES THAT TAX DEDUCTED IS INCOME RECEIVED. THUS THE TAX DEDUCTED IS DEEMED TO BE THE INCOME RECEIVED BY THE ASSESSEE. SIMILARLY THE CREDIT FOR THE TDS CAN BE GIVEN ONLY IN THE YEAR IN WHICH THE INCOME IS ASSESSABLE TO TAX. THIS HAS A LSO BEEN PROVIDED IN RULE 37BA THAT WHEN THE ASSESSEE HAS CLAIMED THE CREDIT FOR TDS IN THE YEAR UNDER 3 CONSIDERATION THEN HE CANNOT TAKE A PLEA THAT T HE INCOME RELATING TO THE TDS SHOULD NOT BE TAXED IN THIS YEAR. AFTER CONSIDERI NG THE PLEADINGS AND FACTS INVOLVED WE FIND THAT THERE IS NO MISTAKE IN TH E ORDERS OF THE AUTHORITIES BELOW AND ACCORDINGLY CONFIRM THEIR ORDERS. 7. IN THE RESULT THE ASSESSEES APPEAL IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 21.05.2010 SD/- SD/- (D.K.TYAGI ) (B.C.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 21.05.2010 COPY FORWARDED TO :- 1) ITO WARD-43(3) KOLKATA. 2) SRI RAMESH SHARMA 14 HANSPUKUR 2 ND LANE KOLKATA. 3) CIT(A) KOLKATA. 4) CIT KOLKATA. 5) D.R. ITAT KOLKATA. BY ORDER TRUE COPY ASSISTANT REGISTRAR BCD I.T.AT. KOLK ATA.