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Income Tax Appellate Tribunal, GUWAHATI BENCH “SMC” GUWAHATI
Before: Shri S.S, Godara
आदेश /O R D E R This assessee’s appeal for assessment year 2011-12, arises against the Commissioner of Income-tax (Appeals)-2, Guwahati’s order dated 20.12.2018 passed in case No.Guwa-267/2013-14, involving proceedings u/s. 143(3) of the Income Tax Act, 1961; in short ‘the Act’. Case called twice. None appeared at assessee’s behest. 2. The assessee’s former substantive ground challenges correctness of both the lower authorities’ action in invoking section 40(a)(ia) for disallowing payments made to various transporters amounting to Rs.7,69,700/-. There is no dispute that the assessee herein is trading in poultry feed and also a contractor engaged in the
ITA No.146/Gau/2019 A.Y .2011-12 Manoj Kr. Das Vs. ITO Wd-3(2), Guwa Page 2
business of plying, hiring or leasing goods carriages. He had admittedly made impugned payments to various transporters forming the subject matter of impugned disallowance for non-deduction of TDS thereupon. I notice from a perusal of the case file that there is no indication either in assessment or in the CIT(A)’s order about the payees to have undertaken any contractual liability so as to attract section 194C of the Act. Hon’ble Calcutta high court’s judgment in ITA No.127 of 2009, CIT vs. M/s. Stumm India holds that the impugned disallowance does not apply in the absence of a payee having undertaken any such contractual liability. I therefore delete the impugned disallowance on this count alone. The assessee succeeds in his former substantive grievance.
Next comes 40A(3) disallowance of Rs.11,11,930/- on account of the assessee’s having made cash payments to various transporters in a single day. I find that the CIT(A) has affirmed the Assessing Officer’s action to this effect whilst passing lower appellate order ex parte. I therefore deem it appropriate to restore the instant issue back to the CIT(A) for a fresh adjudication as per law within three effective opportunities of hearing.
This assessee’s appeal is partly allowed in above terms.
Order pronounced in accordance with Rule 34(3) of the ITAT Rules by putting on Notice Board on 10 /10/2019 Sd/- (S.S. Godara) Judicial Member Gauhati, *Dkp/Sr.PS "दनांकः- 10/10/2019
ITA No.146/Gau/2019 A.Y .2011-12 Manoj Kr. Das Vs. ITO Wd-3(2), Guwa Page 3
आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. अपीलाथ�/Appellant-Manoj Kr. Das, Flat 1A, Nakshatra Residency, Rupalim Path, Bhagadattapur, Survey, Guwahati-781028 2. ��यथ�/Respondent-ITO Ward-3(2), Aaykar Bhawan, G.S. Road, Guwahati- 781005 3. संबं&धत आयकर आयु'त गृवाहाठ, / Concerned CIT Guwahati 4. आयकर आयु'त- अपील / CIT (A)-2, Guwahati 5. -वभागीय �/त/न&ध, आयकर अपील�य अ&धकरण गृवाहाठ, / DR, ITAT, Guwahati 6. गाड1 फाइल / Guard file. By order/आदेश से, /True Copy/ Sr. Private Secretary (on Tour) आयकर अपील�य अ&धकरण, गूवाहाठ� ।