SYED ANWAR HUSSAIN,KOLKATA vs. I.T.O WD - 43(4),KOLKATA, KOLKATA

This appeal by the assessee is against the order of Commissioner of Income Tax (Appeals)-XXX, Kolkata in appeal No.265/CIT(A)-XXX/Wd-43(4)/ 2011-12 dated 28.01.2013. Assessment was framed by ITO Ward-43(4), Kolkata u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 30.12.2011 for assessment year 2009-10. Shri S.L.Kochar and Shri Anil Kumar, Ld. Authorized Representatives appearing on behalf of assessee and Shri Rajat Krkureel, Ld. Departmental Representative appearing on behalf of Revenue.

At the time of hearing, Ld. AR frankly stated that he has been instructed by assessee not to press grounds 3, 6 & 7, hence, we dismiss the same as not pressed.

Facts in brief are that assessee in the present case is an individual engaged in the business of export. During the year, assessee has claimed commission expense for ₹35,10,178 (4,12,256/ plus 30,97,922/-) and freight charge of ₹ 8,14,053/-. During the course of assessment proceedings, AO observed that assessee has failed to deduct TDS u/s 194H and 194C of the Act respectively. Therefore, AO disallowed the same and added back to the income of assessee.

Aggrieved, assessee preferred an appeal before Ld. CIT(A) who confirmed the action of AO. Being aggrieved by this order of Ld. CIT(A) assessee preferred second appeal before us.

We have heard rival submissions and perused the materials available on record. Before us Ld. AR submitted that there is an amendment u/s 40(a)(ia) of the Act which was brought by the Finance Act, 2012. As per the amended provision, if the recipient of the above amount declared the income tax in its return then the disallowance cannot be made. Accordingly, Ld AR prayed to Bench to restore the matter to the file of AO for fresh adjudication and reverse the orders of authorities below. On the contrary, Ld DR vehemently relied on the orders of authorities below. 6.1 From the aforesaid discussion we find that on the similar facts and circumstance this Hon’ble Tribunal in the case of Vas Electronics v. ACIT in dated 24.11.2015 restored the file to the AO for fresh Syed Anwar Hussain v. ITO Wd-43(4), Kol. Page 3 adjudication in the light of amended provisions of the Act. The relevant extract of the order is reproduced below:- “5. We have heard rival submissions and gone through facts and circumstances of the case. We are inclined to set aside the issue to the file of the AO and accordingly, we direct the AO to verify whether the recipients have included the income in their respective returns and also paid taxes on the same. The assessee will provide the details of recipients i.e, their assessment particulars etc., to the AO so that the AO can verify. In case the recipient parties are not cooperating in providing details, the AO can call for the information u/s 133(6) of the Act for verification of the same.