ITO, WD-29(3), KOLKATA, KOLKATA vs. DEEPAK MALIK, KOLKATA

order

: December 20, 2017 ORDER

Per P.M. Jagtap, AM

3 Assessment Year: 2010-11 Deepak Malik CIT(A), the detailed submissions was made by the assessee in support of its case that there being no obligation to deduct tax at source from the concerned payments, the various disallowances made under section 40(a)(ia) were not sustainable. Keeping in view these submissions made by the assessee as well as the details and documents filed in support, the Ld. CIT(A) held that the assessee was not liable to deduct tax at source from the amounts in question. He accordingly deleted the disallowances made by the A.O. under section 40(a)(ia). Aggrieved by the order of the Ld. CIT(A), the revenue has preferred this appeal before the Tribunal on the following grounds: “

1. That the Ld. CIT(A) has erred in not considering the fact that relation between assessee and airlines is that of principal – principal and assessee could not produce any evidence before the A.O. to counter this fact.

2. That the Ld. CIT(A) has erred in not considering the fact that payment made under the head freight charges attracts TDS and A.O. had rightly disallowed the same u/s 40(a)(ia) of the Act.

3. That the Ld. CIT(A) has erred in accepting new documents from the assessee during appellate proceedings, on the issue of ocean freight payment and port charge payment to KPT in violation of Rule 46A of the I.T. Rule.

4. That the appellant craves leave to add, alter, modify, delete or include any of the grounds of appeal.

4. At the time of hearing fixed in this case on 14.12.2017, none appeared on behalf of the assessee. Even on the earlier occasions when the appeal of the revenue was fixed for hearing on 29.06.2017 and 20.09.2017, none had appeared on behalf of the assessee. On the date of hearing fixed earlier on 02.11.2017, adjournment was sought 4 Assessment Year: 2010-11 Deepak Malik by the assessee. Keeping in view this non compliant and non cooperative attitude of the assessee, we are left with no option but to dispose of the appeal of the revenue ex-parte qua the respondent assessee after hearing the arguments of the learned DR and perusing the relevant material on record. The learned DR has invited our attention to the relevant portion of the Ld. CIT(A)’s impugned order as contained in paragraph no 4.2, 5.2, 6.2 and 7.2 to show that the four disallowances in question made by the A.O. under section 40(a)(ia) were deleted by the Ld. CIT(A) by relying on the various documents and materials filed by the assessee for the first time before him. He has contended that since the said documents and materials filed by the assessee for the first time before the Ld. CIT(A) in support of its case on the issues under consideration were not before the A.O. as is clearly evident from the assessment order, the Ld. CIT(A) should have given an opportunity to the A.O. to verify the same as per the Rule 46A of the Income Tax Rules, 1962 by remanding the matter to the A.O. before giving relief to the assesee by relying on the same. He has contended that there is thus a clear violation of Rule 46A by the Ld. CIT(A) and since this position is clearly evident from the record available before us including especially the orders of the A.O. and the Ld. CIT(A), we set aside the impugned order passed by the Ld. CIT(A) deleting the disallowances made by the A.O. under section 40(a)(ia) and restore the matter to the file of the A.O. for deciding the said issues afresh after verifying the various details and documents filed by the assessee for the first time before the Ld. CIT(A) and after giving proper and sufficient opportunity of being heard to the assessee.