SAMIUDDIN AHMED,KOLKATA vs. I.T.O.-WARD-28(2), KOLKATA
What did the Tribunal hold?
The Tribunal found that the issues regarding disallowance of labour charges and TDS required factual verification. The applicability of the second proviso to Section 40(a)(ia) also needed examination.
What were the facts?
The assessee's appeal for AY 2008-09 challenged disallowances of labour charges and TDS related issues. The assessee had filed the appeal with a delay of 35 days, which was condoned due to illness.
What were the issues?
Whether the disallowance of labour charges under Section 40(a)(ia) for non-deduction of TDS is justified, and whether the second proviso to Section 40(a)(ia) applies.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “C-SMC” BENCH : KOLKATA
Before: Hon’ble Shri S.S. Godara, JM ]
ORDER Shri S.S. Godara, JM:
This Assessee’s appeal for assessment year 2008-09 arises against the CIT(A), 5, Kolkata’s order dated 01-11-2018 passed in case no. 262/CIT(A)-5/Wd-28(2)/18- 19/Kol. involving proceedings u/s 143(3) of the Income-tax Act, 1961 ( in short ‘Act’).
Heard learned departmental representative. Case file perused.
For the reasons stated in assessee’s condonation petition that he had suffered from illness and on account of no objection from the revenue’s side, I condone the impugned delay of 35 days in filing this appeal before this tribunal.
Coming to merits, I find that assessee’s twin substantive grounds seeking to challenge correctness of both the lower authorities’ action invoking section 40(a)(ia) disallowance of labour charges amounting to Rs.560970/- on account non deduction of TDS and latter disallowance of Rs.394850/- arising from original TDS Form 16A on various essential re-conciliation issue(s); require necessary factual verification. Coupled with this, assessee’s former grievance of labour expenditure disallowance of Rs.5,60,970/- also requires to be examined under second proviso to section 40(a)(ia) of the Act; that the same does not apply in case an assessee is not the assessee is default in the light of section 201/201A of the Act. Hon’ble Delhi high court’s landmark decision in CIT v/s. Ansal Landmark Township P. Ltd, & 161/2015 dt. 26-08- 2015 holds the above proviso to be having retrospective effect since curative in nature. I therefore deem it appropriate to restore the instant case back to the Assessing officer for fresh adjudication of both the issues raised within three effective opportunities of hearings as per law.
This Assessee’s appeal is allowed for statistical purpose in above terms. Order pronounced in the Court on 18-09-2019 Sd/- [ S.S.Godara ] Judicial Member Dated : 18-09-2019 **PRADIP, Sr. PS Copy of the order forwarded to:
1. 1. Appellant/Assessee: SAMIUDDIN AHMED, 10A, Rajib Ali Lane, Khidderpore, Kolkata-23.
2. Respondent/Department: The I.T.O. Ward 28(2), Gariahat Road (S), Aaykar Bhavan Dakshin, 3rd Fl., Kolkata-68. 3..C.I.T(A).- 4. C.I.T.- Kolkata.
5. CIT(DR), Kolkata Benches, Kolkata.
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