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Dipak Chowdhury Versus Income Tax Officer, Ward-40 (1) , Kolkata

2016 (4) TMI 469 - ITAT KOLKATA

TDS on account of hire charges - Held that:- Respectfully following the aforesaid decision of the Hon'ble Delhi High Court in the case of Ansal Land Mark Township (P) Ltd., (2015 (9) TMI 79 - DELHI HIGH COURT ) we deem it fit and appropriate in the interest of justice and fair play to set aside this issue to the file of AO to decide the issue afresh in the light of the aforesaid judgment. Accordingly, we direct the AO to verify whether the payees have included the subject-mentioned receipts in t .....

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ee its books of account. However, we find from the order of authorities below that the addition was made by the AO on account of the difference in the balancesheet item but without disputing gross income declared by assessee. The difference of ₹20,000/- is arising from the ledger of the party of assessee which is a regular party and to whom assessee raises the bill for the services provided. In our view the AO failed to bring on record the bill of income which has not been recorded in the .....

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xplained expenditure u/s. 69C of the Act as this fuel cost was not reflecting in the accounts of BECML. However the ld. AR submitted that this cost of fuel was paid by the assessee from the premises of the dumper owner to the place of the BECML. Therefore the same shall not be reflected in the statement of BECML. We find that the authorities below have disallowed the difference amount of ₹2,99,459/- on the ground that it was not reflecting in the statement of BECML. However we find from th .....

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16 - Shri N.V.Vasusdevan, Judicial Member and Shri Waseem Ahmed, Accountant Member For The Assessee : Shri A.K.Tibrewal, FCA and Shri Amit Agarwal, Advocate For The Respondent : Shri Anil Kr. Pande, JCIT,Sr-DR, ORDER PER Waseem Ahmed, Accountant Member:- Both appeals by the assessee are against the different orders of Commissioner of Income Tax (Appeals)-XIX, Kolkata but even date of 11.01.2013. Assessments were framed by ITO Ward-40(1), Kolkata u/s 143(3)(ii)/143(3) of the Income Tax Act, 1961 .....

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harges paid by the Assessee on the alleged ground that the assessee failed to discharge his onus of establishing the genuineness of such expenses. 2. That the Learned Commissioner of Income Tax (Appeals) erred in saying that the assessee failed to deduct tax at source u/s. 194C of the Act on the sum of ₹ 26,99,386 paid by the Assessee as Hire Charges of Dupers for is business of transportation of Coal. 3. That the Learned Commissioner of Income Tax (Appeals) further erred in saying that th .....

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essee for charging of interest under section 234A and section 234B of the Act. 4. The first issue in relation to grounds No. 1 to 3 raised in this appeal is that Ld. CIT(A) erred in confirming the action of Assessing Officer by disallowing a sum of ₹26,99,386/- on account of hire charges. The facts of case are that assessee is an individual and engaged in transport business under the name and style of M/s Choudhury & Co. During the year assessee has made payments of dumper hire charges .....

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balance-sheet of the person to whom the payments were made. However, assessee failed to produce any such documents as required. The AO also further noted that assessee has incurred dumber hire charges, repair and maintenance charges without deducting Tax Deducted at Source (TDS). Accordingly, Assessing Officer disallowed the claim of assessee and added it to the total income of assessee. 5. Aggrieved, assessee preferred an appeal before Ld. CIT(A) who has confirmed the action of AO. Being aggri .....

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rds, voter ID cards, RC of vehicle, medical insurance certificate etc. were placed in support of the identity of the persons to whom the payments were made. The Ld. AR further submitted that assessee has incurred same expenses in AY 2008-09 but the identity of above party was not disputed. Accordingly the ld. AR pleaded that payment were made to genuine parties only and prayed for the allowance of the expenses. The Ld. AR also submitted that regarding the provision of TDS there is an amendment i .....

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dly - TDS provision were not complied by assessee while making the above payments. We find force from the submission of Ld. AR regarding the genuineness of the parties as necessary details were placed on record. We also note that the payments to the same parties were also made in AY 2008-09 and the identities of the parties were not disputed. Therefore, the disallowance on account of identity of party cannot me made. Further, we also find that there is amendment of proviso to Sec. 40(a)(ia) of t .....

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of CIT v. Ansal Land Mark Township (P) Ltd. (2015) 61 taxmann.com 45 (Del) wherein the question raised before the court and the decision rendered thereon is reproduced herein below for the sake of clarity:- Question: Whether the second proviso to Section 40(a)(ia) (inserted by the Finance Act, 2012), which states that TDS shall be deemed to be deducted and paid by a deductor if resident recipient has disclosed the amount in his return of income and paid tax thereon, is retrospective in nature o .....

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aid to deductee and, in turn, deductee also hasn t offered to tax income embedded in such amount The penalty for tax withholding lapse per se is separately provided under section 271C and, therefore, section 40(a)(i) isn t attracted to the same. Hence, an assessee could not be penalized under section 40(a)(ia) when there was no loss to revenue. The Agra Tribunal in the case of Rajiv Kumar Agarwal-vs-ACIT [2014] 45 taxmann.com 555 (Agra - Trib) had held that the second proviso to Section 40(a)(ia .....

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the aforesaid decision of the Hon'ble Delhi High Court in the case of Ansal Land Mark Township (P) Ltd., (supra) we deem it fit and appropriate in the interest of justice and fair play to set aside this issue to the file of AO to decide the issue afresh in the light of the aforesaid judgment. Accordingly, we direct the AO to verify whether the payees have included the subject-mentioned receipts in their respective returns and paid taxes thereon or not. If that is so, then disallowance u/s. .....

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e confirmation received from the said party the work-in-progress was shown for ₹5,93,863/- whereas assessee has shown the balance in its books of account for ₹ 5,73,863/-. The difference between the figures was treated as unexplained investment by AO and added to the total income of assessee. 9. Aggrieved, assessee preferred an appeal before Ld. CIT(A) who confirmed the action of AO. Being aggrieved by this order of Ld. CIT(A) assessee came in second appeal before us. 10. We have hea .....

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ers of authorities below. 11. From the aforesaid discussion, we find that during the course of assessment proceedings AO found the difference of small amount at ₹ 20,000/- between ledger provided by party and amount show by assessee its books of account. However, we find from the order of authorities below that the addition was made by the AO on account of the difference in the balancesheet item but without disputing gross income declared by assessee. The difference of ₹20,000/- is a .....

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of unexplained investment for Revenue account which subsequently confirmed by Ld. CIT(A) is without any sound basis. We therefore are inclined to reverse the orders of authorities below and delete the same accordingly. This ground of assessee s appeal is allowed. 12. Ground No. 5 raised by assessee for charging of interest u/s 234A/234B of the Act. This is consequential in nature and does not require any adjudication at this stage because the matter is already restored back to the file of Asses .....

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sed by assessee is that Ld. CIT(A) erred in disallowing the expenditure of ₹2,99,459/- towards the cost of fuel by invoking u/s 69C of the Act. The assessee supplied dumpers to BECML on hire for lifting and loading coal to truck or railway wagon. The assessee used to raise the bill for the said dumpers given on hire to BECML. As per the terms & conditions BECML shall pay the fuel cost for the dumper when it is in its custody for the use of the business. However the fuel cost paid by th .....

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ction of AO. Being aggrieved by this order of Ld. CIT(A) assessee preferred second appeal before us. 16. We have heard rival contentions and perused the materials available on record. Before us Ld AR submitted that assessee was engaged by M/s BECML for lifting and loading coal to trucks and rail wagons. As per agreement the fuel cost for running of dumpers was to be paid by BECML when the dumper is in the custody of it and the will be adjusted from the gross bill raised by assessee. However when .....

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