Income Tax Appellate Tribunal - Kolkata
Shri Goutam Das Judge, Hooghly vs Ito, Ward 23(2), Kolkata, Chinsurah on 21 April, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
KOLKATA BENCH "A" KOLKATA
Before Shri Waseem Ahmed, Accountant Member and
Shri S.S.Viswanethra Ravi, Judicial Member
S.A No.37/Kol/2017
(a.o ITA No.453/Kol/2017)
Assessment Year:2013-14
Shri Goutam Das, Judge, बनाम Income Tax Officer,
Mukherjee Bagan, Ward-23(2) Hooghly,
/ V/s.
Chickrand, Chanditala, Aayakar Bhawan,
Hooghly-712304 Khadina Moore, G.T.
[PAN No.AIEPD 8523 B] Road, Chinsurah-712101
अपीलाथ /Applicant .. यथ /Respondent
By Applicant Shri Ravi Tulsiyan, AR
यथ क ओर से/By Respondent Shri Sallong Yaden, Addl. CIT-SR-DR
सन
ु वाई क तार ख/Date of Hearing 21-04-2017
घोषणा क तार ख/Date of Pronouncement 21-04-2017
आदे श /O R D E R
PER Waseem Ahmed, Accountant Member:-
This stay application filed by the assessee praying for an order of stay of recovery of outstanding demand of Rs. 28,41,400/- inclusive of tax.
2. The Ld. AR before us submitted that certain additions have been made by the AO in its assessment order u/s 143(3) of the Income Tax Act, 1961 vide order dated 29.01.2016 as detailed under:-
a) Addition of Rs.8,496/- on account of undisclosed commission income;
b) Disallowance u/s. 40(a)(ia) of the IT Act, 1961 of Rs.71,42,777/- and
c) Addition of Rs.58,459/- alleging undisclosed income u/s. 28(iv) of the Act.
The assessee has filed the appeal against the addition made by the AO on account of non-deduction of TDS u/s 194H viz-a-viz 40(a)(ia) of the Act to the ld. CIT(A). The S.A No.37/Kol/2017 Sh Goutam Das Vs. ITO Wd-23(2) Hgy. Page 2 assessee before the ld. CIT(A) submitted that the assessee has granted discount to its retailers in order to achieve high turnover. The relationship between the assessee and the retailers was of the seller and buyer and thus no question of TDS deduction arises on such discount. However, the ld. CIT(A) disregarded the contention by hold assessee guilty for non-deduction of TDS u/s 194H of the Act on the presumption that the discount is nothing but commission payment. In view of the above, the ld. AR prayed for the stay of demand on the ground that there is fair possibility for getting succeed in the appeal pending before the Hon'ble Tribunal.
3. On the other hand the ld. DR opposed to grant the stay of demand and left the issue at the discretion of the Bench.
4. We have heard rival submissions and perused the material available on record. We take note that the assessee has granted discount to its retailers and the instant issue is well settled now in favour of assessee by the decisions of various courts. Thus if the assessee succeeds in appeal pending before the Hon'ble ITAT then there will remain no outstanding demand against the assessee. Thus, in the interest of natural justice, we are inclined to fix the case of the assessee out of the turn and therefore the registry is directed to fix the appeal on 03.05.2017. Hence, no separate notice is required to be sent to either of the parties. The assessee shall not seek any adjournment without just cause. Keeping in mind, the existence of the prima facie case, the plea of financial hardship and the balance of convenience, the lower authorities are also directed not to take coercive action for the recovery of demand till the disposal of appeal. In case the assessee takes adjournment without just cause or does not appear on the date of hearing then the stay shall stand vacated immediately. We order accordingly.
5. In the result, assessee's stay petition stands allowed.
Order pronounced in court at the close of the hearing on Friday, the 21st day of 2017 Sd/- Sd/-
(S.S.Viswanethra Ravi) (Waseem Ahmed)
Judicial Member Accountant Member
*Dkp, Sr.P.S
दनांकः- 21/04/2017 कोलकाता / Kolkata
S.A No.37/Kol/2017
Sh Goutam Das Vs. ITO Wd-23(2) Hgy. Page 3
आदे श क त ल प अ े षत / Copy of Order Forwarded to:-
1. अपीलाथ /Applicant-Shri Goutam Das Judge, Mukherjee Bagan, Chickrand, Hooghly-712304
2. यथ /Respondent-ITO Ward-23(2), Aayakar Bhawan, Khadina More, G.T. Road, Chinsurah-712 101
3. संबं"धत आयकर आयु%त / Concerned CIT
4. आयकर आय% ु त- अपील / CIT (A)
5. &वभागीय )त)न"ध, आयकर अपील य अ"धकरण कोलकाता / DR, ITAT, Kolkata
6. गाड+ फाइल / Guard file.
By order/आदे श से, /True Copy/ उप/सहायक पंजीकार आयकर अपील य अ"धकरण, कोलकाता