Gouri Sankar Mukherjee, Durgapur v. ACIT, Circle - 1, Durgapur, Durgapur

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH - A KOLKATA ( ) BEFORE . . SHRI B.R.MITTAL JUDICIAL MEMBER. /AND . . SHRI C.D. RAO ACCOUNTANT M EMBER . / I.T.A.NO. 825/KOL/2008 / ASSESSMENT YEAR 2005 - 06 GOURI SANKAR MUKHERJEE VISITORS LODGE BUILDING STALL NO.12 B.C.ROY AVENUE DURGAPUR - 1. AEMPM 0803 K - - - VERSUS - . ACIT CIRCLE 1 DURGAPUR. ( / A PPELLAN T ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI C.GOSWAMI AR / FOR THE RESPONDENT : / SHRI K.K.TRIPATHI DR / ORDER . . SHRI B.R.MITTAL JUDICIAL MEMBER. THE ASSES SEE HAS FILED THIS APPEAL FOR THE ASSESSMENT YEAR 2005 - 06 AGAINST ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) DT.14.3.2008 ON THE FOLLOWING GROUNDS. 1. FOR THAT THE ORDERS OF THE OFFICES BELOW ARE ARBITRARY MISCONCEIVED BAD ON MERITS OF F ACTS AND IN LAW. 2. FOR THAT THE APPELLANT CLAIMED EXPENDITURES ON COMMISSION ACCOUNT FOR RS.33 53 750 U/S.17(1) OF THE INCOME - TAX ACT 1961 IN COMPLETING HIS TOTAL INCOME THE ASSESSING OFFICER SHOULD NOT HAVE DISALLOWED THIS CLAIM OF EXPENDITURE BY INVO KING PROVISIONS OF SUB CLAUSE (IA) OF CLAUSE (A) OF SECTION 40 OF THE INCOME TAX ACT 1961. 3. FOR THAT THE INCOME SO COMPUTED WILL NOT BE THE APPELLANT REAL INCOME FOR THAT YEAR CONTRARY TO THE DEFINITION OF INCOME BY SEC. 2(24) OF THE INCOME TAX ACT 1961 . 4. FOR THAT THE REST MAY BE ARGUED AT THE TIME OF HEARINGS OF THIS APPEAL. / I.T.A.NO.825/KOL/2008 2 2. DURING THE ASSESSMENT YEAR UNDER CONSIDERATION THE ASSESSEE CLAIMED EXPENDITURE ON PAYMENT OF COMMISSION OF RS.33 53 750 TO FIVE PARTIES. THE PAYMENTS OF COMMISSION BEING IN EXCESS OF THE SPECIFIED AMOUNT THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE WAS REQUIRED TO DEDUCT TAX AT SOURCE. BUT THE ASSESSEE HAVING NOT DEDUCTED TDS ON THE ABOVE PAYMENTS OF COMMISSION AS REQUIRED U/S.194H OF THE INCOME - TAX ACT 1961 TH E ASSESSING OFFICER DISALLOWED THE CLAIM OF SUCH EXPENDITURE U/S.40(A)(IA) OF THE ACT AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. IN APPEAL THE LEARNED CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 3. WE HAVE HEARD THE LEARNED REPRES ENTATIVES OF BOTH THE PARTIES AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE FACTS UNDISPUTED IN THE PRESENT CASE ARE THAT THE ASSESSEE HAS NOT DEDUCTED TAX AT SOURCE ON THE PAYMENT OF COMMISSION OF RS.33 53 750 TO FIVE PARTIES AS DETAILED IN THE ASSESSMENT ORDER. IT IS ALSO NOT DISPUTED THAT THE ASSESSEE OUGHT TO HAVE DEDUCTED TAX AT SOURCE ON SUCH PAYMENTS AS REQUIRED U/S.194H OF THE INCOME - TAX ACT. THEREFORE DISALLOWANCE OF SUCH EXPENDITURE U/S.40(A)(IA) IS JUSTIFIED. HOWEVER THE LEARNED AR OF THE ASSESSEE STATE D BEFORE US THAT THE ASSESSEE HAS PAID THE TDS ON 4.1.2008 AND ON THAT BASIS HE SUBMITTED THAT A DIRECTION COULD BE ISSUED BY THE BENCH TO ALLOW THE BENEFIT TO THE ASSESSEE IN THE YEAR IN WHICH THE PAYMENT OF TDS WAS MADE. ON A QU ERY FROM THE BENCH AS TO UNDER WHICH PROVISION SUCH A DIRECTION COULD BE GIVEN BY THE TRIBUNAL THE LEARNED DR POINTED OUT THAT THERE IS NO SUCH PROVISION / I.T.A.NO.825/KOL/2008 3 IN THE ACT UNDER WHICH SUCH A DIRECTION COULD BE ISSUED BY THE BENCH AND THE LEARNED AR OF THE ASSESS EE CONCEDED THE SAME. IN VIEW OF THE ABOVE WE DO NOT FIND ANY MERIT IN THE PRESENT APPEAL AND AS SUCH WE DISMISS THE SAME. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DISMISSED. THIS ORDER IS PRONOUNCED IN OP EN COURT ON DT. 09.04.2010 SD/ - SD/ - ( . . ) (C.D. RAO) ACCOUNTANT MEMBER ( . . ) ( B.R.MITTAL ) JUDICIAL MEMBER ( ) DATE : 09.04.2010 - COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT : GOURI SANKAR MUKHERJEE VISITORS LODGE BUILDING STALL NO.12 B.C.ROY AVENUE DURGAPUR - 1. 2 / THE RESPONDENT - ACIT CI RCLE 1 DURGAPUR. 3. / THE CIT 4. ( )/ THE CIT(A) 5. / DR KOLKATA BENCH 6. GUARD FILE . / TRUE COPY / BY ORDER / DEPUTY REGISTRAR . ( /) H.K.PADHEE / SNR.PRIVATE SECRET ARY.