Income Tax Appellate Tribunal - Kolkata
Zenith Erectors Pvt. Ltd., , Haldia vs Acit, Circle - 27, Haldia , Haldia on 26 April, 2019
आयकर अपील य अधीकरण, यायपीठ - "B" कोलकाता,
IN THE INCOME TAX APPELLATE TRIBUNAL
KOLKATA BENCH "B" KOLKATA
Before Shri S.S.Godara, Judicial Member and
Dr. A.L. Saini, Accountant Member
ITA No.2183/Kol/2017
Assessment Year :2013-14
Zenith Erectors Pvt Ltd. V/s. ACIT, Circle-27
P-12, Haldia Industrial LIC More, Basudevpur,
Estate, Durgachak, CPT Khanjanchak, Haldia,
Market, Haldia, Dist. Purba Medinipur-721602
Purba Medinipur,
Pin 721602
[P AN No. AAACZ 1478 J]
अपीलाथ /Appellant .. यथ /Respondent
अपीलाथ क ओर से/By Appellant Shri J.M. Thand, Advocate
यथ क ओर से/By Respondent Smt. Madhu Malti Ghosh
सन
ु वाई क तार ख/Date of Hearing 16-41-2019
घोषणा क तार ख/Date of Pronouncement -04-2019
आदे श /O R D E R
PER S.S.Godara, Judicial Member:-
This assessee's appeal for assessment year 2013-14 arises against the Commissioner of Income Tax (Appeals)-7, Kolkata's order dated 09.02.2017 passed in case No.163. 165 & 176 CIT(A)-7/Kol/Circle-27/16-17, involving proceedings u/s 143(3) of the Income Tax Act, 1961; in short 'the Act'.
Heard both the parties. Case file perused.
2. The assessee's first substantive ground challenges both the lower authorities' action disallowing various payments amounting to ₹2,07,27,715/- u/s 40(a)(ia) of the Act on account of its failure in deducting TDS thereupon.
ITA No.2183/Kol/2017 A.Y. 2013-14Zenith Erectors Pvt. Ltd. Vs. ACIT, Cir-27, Haldia Page 2 We make it clear at the outset that there is no dispute about the non-deduction of TDS on the above payments. The assessee is fair enough to this effect. It files before us a copy of lists of payees details their PAN, total bill and TDS details during the course of hearing. Learned counsel quotes u/s. 40(a)(ia) 2nd proviso stipulating non application of impugned statutory provision in case of the payees concerned having assessed to tax not making it as the assessee in default u/s 201(1) of the Act. Hon'ble Delhi high court's decision in the case of CIT vs. Ansal Land Mark Township Pvt. Ltd. (2015) 377 ITR 635 (Del) holds that sec. 40(a)(ia) 2nd proviso inserted by the Finance Act, 2012 w.e.f. 01.04.2013 applies with retrospective effect being curative in nature. We draw support therefrom and restore the instant first issue back to the Assessing Officer for factual verification of the payees in issue as to whether they have duly recorded payments in issue as income followed by assessment thereof as per law as stipulated in sec. 40(a)(ia) 2nd proviso r.w.s. 201(1) 1st proviso of the Act. The assessee is directed to file all the necessary details within three effective opportunities of hearing before the Assessing Officer. This first substantive ground is accepted for statistical purposes in above terms.
3. Next comes assessee's second substantive ground seeking to delete second disallowance of interest payment amounting to ₹13,42,902/- paid to M/s Indian Oil Co. Ltd without deducting TDS. There is no issue herein as well that assessee has not deducted any TDS regarding the impugned interest payment. Hon'ble Delhi high court's judgment in CIT vs. Trans Bharat Aviation (P) Ltd (2010) 320 ITR 671 (Del) has upheld the tribunal's decision presuming that if the payee / deductee is a Government of India undertaking, it cannot be presumed to have not paid tax on the receipts in issue. Learned Departmental Representative is fair enough in not disputing the fact that deducteee herein M/s Indian Oil Co. Ltd. is a Government of India Public Sector Undertaking. We draw support from the above legal position and delete the impugned disallowance / addition in principle. We therefore conclude that assessee's liability to pay interest is only upto the date of filing of return at its PSU/payee's behest as per the said case law. The Assessing Officer is accordingly directed ITA No.2183/Kol/2017 A.Y. 2013-14 Zenith Erectors Pvt. Ltd. Vs. ACIT, Cir-27, Haldia Page 3 to furnish afresh computation in these letters. This second substantive ground is taken as partly accepted accordingly.
4. Lastly comes to assessee's third substantive ground that CIT(A) has erred in not deleting proportionate interest disallowance of ₹69,20,652/- and advance given. We are informed that the Assessing Officer has not given any effect to the CIT(A)'s direction in this regard in consequential computation. We accordingly direct the Assessing Officer to pass afresh order in compliance to the CIT(A)'s directions contained in para 9.3 page-11 of the lower appellate order. The CIT(A) has made it clear therein that most of the assessee's loan are for business purposes only. He had therefore directed the Assessing Officer to verify the necessary facts and allow appropriate relief. We accordingly restore the instant third issue as well back to the Assessing Officer.
5. This assessee's appeal is partly allowed in above terms.
Order pronounced in the open court 26/04/2019
Sd/- Sd/-
(लेखा सद%य) ( या'यक सद%य)
(Dr.A.L. Saini) (S.S.Godara)
(Accountant Member) (Judicial Member)
Kolkata,
*Dkp, Sr.P.S
(दनांकः- 26/04/2019 कोलकाता ।
आदे श क त ल प अ े षत / Copy of Order Forwarded to:-
1. अपीलाथ /Appellant-Zenith Erectors Pvt. Ltd. P-12, Haldia Indiustrial Estate, Durgachak CPT Market, Haldia, Dist. Purba Medinipur-721602
2. यथ /Respondent-ACIT, LIC More, Basudevpur, Khanjanchak, Haldia, Purba Medinipur Pin 721602
3. संब3ं धत आयकर आय4 ु त / Concerned CIT Kolkata
4. आयकर आय4 ु त- अपील / CIT (A) Kolkata
5. 7वभागीय 'त'न3ध, आयकर अपील य अ3धकरण, कोलकाता / DR, ITAT, Kolkata
6. गाड< फाइल / Guard file.
By order/आदे श से, सहायक पंजीकार आयकर अपील य अ3धकरण, कोलकाता ।