SHRI VISHAL KUMAR ARYA,KOLKATA vs. ITO, WARD-44(3), KOLKATA, KOLKATA

This Assessee’s appeal for assessment year 2009-10 arises against the CIT(A), 13, Kolkata’s order dated 30-03-2016 passed in case no. 1043/CIT(A)-13/2014-15/Kol involving proceedings u/s 143(3) of the Income-tax Act, 1961 ( in short ‘the Act’).

It transpires at the outset that the CIT(A) in his order under challenge has not condoned the delay of 73 days in assessee’s lower appeal stated to be attributable to the fact that although his accountant had handed over the case file on the date of receipt of assessment order on 29-12-2016 itself, the same had been misplaced in his office. We conclude in these facts that assessee’s foregoing averments sufficiently indicate that there existed circumstances beyond his control leading to the delay in question of 73 days in filing the lower appeal. We therefore treat the same as duly explained.

Learned authorized representative does not press for assessee’s first four substantive grounds that the CIT(A) had not afforded adequate opportunity of hearing.

Learned Departmental Representative vehemently contends during the course of hearing that the assessee’s impugned payments made at regular intervals indicate oral agreement of freight duty between them. We do not see any such fact in the case that merely because assessee’s freight transaction involve multiple instances during the relevant previous year. We make it clear that Revenue’s stand an oral agreement having entered between assessee and the payee(s) in absence of any material to draw such inference leads to perversity only. Coupled with this, there is also material on record that the assessee’s payees had undertaken any contractual liability on his behalf. We therefore decline the Revenue’s supportive arguments in favour of the impugned disallowance. Hon’ble jurisdictional high court’s decision in 2009 CIT v/s M/s. STUMM INDIA dated 16th August, 2010 holds that section 194C r.w.s 40(a)(ia) of the Act does not apply in absence of any oral/written agreement between the parties. We

Next comes bad debts disallowance of Rs.3,55,686/- in case of M/s. AML Steel & Power Ltd. The Assessing Officer admittedly quoted section 36(2) of the Act to hold that the impugned sum has nowhere been recognized as income since the relevant transactions between the parties relate to FY 2008-09 only. The Revenue fails to dispute that assessee has written off the impugned sum as non-recoverable in the corresponding ledger in case of above stated party. Learned Counsel has also filed necessary P & L account & trading account to this effect. We conclude in this factual backdrop that assessee’s impugned bad debts claim of Rs. 3,55,686/- deserves to be accepted. We order accordingly.

This Assessee’s appeal is partly allowed in above terms. Order pronounced in the Court on 13 -09-2019 Sd/- Sd/- [ J. Sudhakar Reddy ] [ S.S.Godara ] Accountant Member Judicial Member Dated : 13-09-2019 **PRADIP, Sr. PS Copy of the order forwarded to: