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Income Tax Appellate Tribunal, “C” BENCH: KOLKATA
Before: Shri Mahavir Singh, JM & Shri M. Balaganesh, AM]
ORDER Per Shri Mahavir Singh, JM:
This appeal by assessee is arising out of order of CIT(A)-VIII, Kolkata in Appeal No.95/CIT(A)-VIII/Kol/11-12 dated 22.01.2013. Assessment was framed by DCIT, Circle-9, Kolkata u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) for Assessment Year 2009-10 vide his order dated 21.09.2011.
The first issue in this appeal of assessee is against the order of CIT(A) confirming the addition made by AO on account of difference in sundry debtor’s balance. For this, assessee has raised following ground no. 2: “2. For that the assessee took a bill amounting to Rs.7,77,459/- in excess but the party, ‘M/s. Raju Enterprise’, did not take the bill amount in its ledger. The difference is in purchase. The addition is requested to be made on N. P. with the total income of the assessee.”
3. We have heard Ld. DR and gone through facts and circumstances of the case. We find that an inspection was made in the premises of M/s. Raju Enterprises, a party of the assessee from where it was found that the assessee’s accounts was debited by a sum of Rs.2,39,948/- i.e. sundry debtor was declared by assessee for this amount. On the contrary, the AO during the course of scrutiny proceeding noted that in the assessee’s accounts the party is shown as creditor to the extent of Rs.10,17,407/-. According to AO, no reply was filed by the assessee. Hence, he made addition of the differential amount. The CIT(A) confirmed the addition because according to him, assessee admitted that the addition can be made on the profit. Aggrieved, now assessee is in appeal before us.
2 ITT Shipping Pvt. Ltd. AY 2009-10 4. We find from the above facts that primarily there is difference in the balance of both the parties. The assessee claimed before the lower authorities that it has taken bill issued by Raju Enterprises in its account and accounted for the same. But that party M/s. Raju Enterprises has not included the same in its accounts. The assessee filed reconciliation before the CIT(A) but was not considered. In view of the above facts, we feel that the issue needs re-examination. Hence, we set aside this issue to the file of AO and allow one more opportunity to the assessee to explain his case. Accordingly, this issue of assessee’s appeal is allowed for statistical purposes.
The next issue in this appeal of assessee is against the order of CIT(A) confirming the disallowance of repair and maintenance charges paid to Kolkata Port Trust (KPT) without deduction of TDS u/s. 194C of the Act thereby invoking the provisions of section 40(a)(ia) of the Act amounting to Rs.25,39,726/-. We find from the assessment order that according to AO, the assessee has not deducted TDS on the following payments made to KPT:
Sl. No. Name of the Party Account Head Amount for which TDS not deducted 1. RE Engg Works Ship Maintenance Rs. 93,462/- 2. T. Hossain Project (P) Ltd. Ship Repairing Rs. 18,00,000/- 3. Kolkata Port Trust Dry Dock Expenses Rs.18,76,299/- 4. ITTPL CPT Charges Rs. 4,69,965/- Total Rs.25,39,726/- The CIT(A) also confirmed the action of AO despite the fact that the assessee pleaded that in view of the decision of Hon’ble Delhi High Court in the case of CIT Vs. Ansal Land Mark Township (P) Ltd., & 161/2015 dated 26.08.2015, wherein it has been held as under: “No s. 40(a)(ia) disallowance for failure to deduct TDS on payment if payee has offered amount to tax. Second Proviso to s. 40(a)(ia) inserted by Finance Act 2013 w.e.f. 1.4.2013 should be treated as curative and to have retrospective effect from 1.4.2005. ITAT praised for "thorough analysis" of the provision”
In view of the above, the issue needs to be set aside to the file of AO. On query from the Bench, Ld. Sr. DR has not objected to the proposal. In view of the above facts and circumstances, we are of the considered view that let the AO examine the details of recipients of payments, which are to be filed by assessee and in case these receipts are included in their respective return of income and paid taxes thereon, the AO will delete the 3 ITT Shipping Pvt. Ltd. AY 2009-10 disallowance made u/s. 40(a)(ia) of the Act in view of the decision in the case of Ansal Land Mark township (P) Ltd., supra. This issue of assessee’s appeal is allowed for statistical purposes. 6. In the result, all the appeals of revenue are dismissed. 7. Order is pronounced in the open court on 04.12.2015. Sd/- Sd/- (M. Balaganesh) (Mahavir Singh) Accountant Member Judicial Member