DR. PARTHA BISWAS,KOLKATA vs. JCIT, RANGE - 55, KOLKATA , KOLKATA

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH “D” KOLKATA Before Shri P.M.Jagtap, Accountant Member and Shri S.S.Godara, Judicial Member Assessment Year:2011-12 Dr. Partha Biswas JCIT, Range-55, बनाम / House No.4 Cluster-VII, Kolkata-700 016 V/s. Purbachal, Salt Lake City, Kolkta-97 [PAN No.AGUPB 7947 B] .. अपीलाथ" /Appellant ""यथ" /Respondent None अपीलाथ" क" ओर से/By Appellant Shri A. Bhattacherjee, Addl. CIT-DR ""यथ" क" ओर से/By Respondent 23-07-2018 सुनवाई क" तार"ख/Date of Hearing 31-07-2018 घोषणा क" तार"ख/Date of Pronouncement आदेश /O R D E R PER S.S.Godara, Judicial Member:- This assessee’s appeal for assessment year 2011-12 arises against Commissioner of Income Tax (Appeals)-6, Kolkata’s order dated 07.03.2017, passed in case No.135/CIT(A)-6/Kol/14-15 upholding Assessing Officer’s action disallowing addition his salary payment made to Dr. Shule Kumar of ₹62,000/- as well as depreciation of car and driver salary @ 20% coming to ₹28,204; respectively, involving proceedings u/s 143(3) of the Income Tax Act, 1961; in short ‘the Act’. 2. We come to former issue of section 40(a)(ia) disallowance of ₹62,000/-. The assessee had admittedly paid the impugned sum in the months of June to November, 2010 @ ₹10,000/- per month for four months and ₹ 11,000/- each for two months. He did not deduct TDS thereupon by treating the same to be in the nature of salary. Both the lower authorities have rejected his claim in absence of employee-employer relationship to treat the sum in question as fee in lies of availing professional services. They conclude that payee doctor had in fact assisted the assessee rather than having

ITA No. 1641/Kol/2017 A.Y. 2011-12 Dr. Partha Biswas Vs. JCIT, Rg-55 Kol. Page 2 employee-employer relationship between them. We find no merit in the lower authorities’ stands. The assessee’s above payments sequence at periodic interval; as well as absence of any evidence in books indicating the relevant assistance offered by the payee is forms sufficient material to conclude that there were having employee- employer relationship between them. The impugned salary payments admittedly do not satisfy threshold limit of TDS deduction u/s. 192 of the Act. We therefore accept assessee’s former substantive ground challenging of section 40(a)(ia) disallowance of ₹62,000/-. He succeeds in the instant former substantive ground. 3. Next comes to assessee’s latter substantive ground challenging both the lower authorities action disallowing his car depreciation and driver salary to the extent 20% coming to ₹28,204/- involving corresponding sums of ₹65,618/- and ₹75,400; respectively. Learned Departmental Representative fails to dispute that the impugned disallowance even if accepted in principle, is on higher side we therefore restrict the same to that @ 10% only coming to this sum ₹14,102/- with a rider that our instant adjudication would not be treated as a precedent. This latter substantive ground is accepted in part. This assessee’s appeal is partly allowed. 4. Order pronounced in open court on 31/07/2018 (लेखा सद!य) (#या$यक सद!य) (P.M.Jagtap) (S.S.Godara) Accountant Member Judicial Member *Dkp-Sr.PS %दनांकः- 31/07/2018 कोलकाता / Kolkata आदेश क" ""त"ल"प अ"े"षत / Copy of Order Forwarded to:- 1. अपीलाथ"/Appellant-Dr. Partha Biswas, house No.4 Cluster-VII, Purbachal, Salt Lake City, Kolkata-97 2. ""यथ"/Respondent-JCIT, Range-55, Kolkata-16 3. संबं(धत आयकर आयु+त / Concerned CIT 4. आयकर आयु+त- अपील / CIT (A) 5. ,वभागीय "$त$न(ध, आयकर अपील"य अ(धकरण कोलकाता / DR, ITAT, Kolkata 6. गाड0 फाइल / Guard file. By order/आदेश से, // Sr. Private Secretary, Head of Office/DDO आयकर अपील"य अ(धकरण, कोलकाता