Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, KOLKATA ‘C’ BENCH, KOLKATA
Before: Sri J. Sudhakar Reddy & Sri Aby T. Varkey]
Appearances by: None, appeared on behalf of the assessee. Shri S.M.S. Tauheed, Addl. CIT, DR appearing on behalf of the Revenue. Date of concluding the hearing : December 14th, 2017 Date of pronouncing the order : December 21st , 2017
O R D E R Per J. Sudhakar Reddy :-
This appeal filed by the revenue is directed against the order of the ld. Commissioner of Income Tax (Appeals)-24, Kolkata, (hereinafter the ‘ld. CIT (A)’), passed u/s 250 of the Income Tax Act, 1961 (the ‘Act’), dt. 14/03/2016, for the Assessment Year 2011-12, on the following grounds:-
“1. In the facts and circumstances of the case the Ld. C.I.T(A)-24/ Kolkata, has erred in directing the A.O. to verify whether recipient Kolkata Port Trust has paid tax on the rent debited in the accounts of the assessee Deductor as such direction tantamount to setting aside for rejudication. The CIT(A) is not empowered to do so as per amended provision of section 251(1)(a) of the Act.
2 Assessment Year: 2011-12 Haldia Municipality 2. Under the facts and circumstances of the case the Ld. CIT(A) has erred in directing the A.O. to treat the payments made to WBWML u/s 194C, though the type of expense by Haldia Municipality comes under the purview of 194J. 3. The appellant craves leave to add, alter/modify the ground of appeal during the course of hearing.”
After hearing rival contentions, we hold as follows:-
2.1. As far as Ground No.1 is concerned, we agree with the ld. D/R, that the ld. First Appellate Authority, has no power to set aside the issue for re-adjudication to the ld. Assessing Officer. Hence this Ground is dismissed to this extent. At the same time, we find that the facts and circumstances of the case demand that the order to be set aside to the file of the Assessing Officer for examining whether KOPT paid tax on income contained in the rent of Rs.2,59,40,796/-, determined for the Financial Year 2010-11. Hence we exercise our powers of set aside and restore this issue to the Assessing Officer for verification as to whether KOPT had paid tax as rent. Hence this Ground is allowed for statistical purposes.
On Ground No. 2, we find that the ld. CIT(A) at para 2.1. stated that Section 194C of the Act, applies to the facts and circumstances of the case and held as follows:- “The appellant has entrusted the work of waste disposal to WBWML, which apparently operates the facility on its own behalf and carries out the disposals of wastes in return for sums paid by the appellant. In any case, the A.O. has not made a case that some knowhow or technique or skill was transferred to the appellant. Drawing from various judicial decisions it can be stated that any work or service in to- day's economy requires specified skills and, therefore, if requirement of such a skill on the part of service provider be taken as only criterion for application of Section 194J then all services may be hit by section 194J. In such cases, one has to see whether any skill or knowhow was transferred by the service provider to the person making payments. As no such case exists in the appellant's case the A.O.'s action cannot be sustained. I hold that the appellant has rightly
We uphold this finding of the ld. ld. First Appellate Authority and accordingly dismiss this ground of the revenue.
In the result, appeal of the revenue is allowed for statistical purposes. 5.