Radhanath Bhunja &Sons., Midnapore vs Department Of Income Tax

IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH: KOLKATA [Before Shri P. K. Bansal, AM & Shri Mahavir Singh, JM]

I.T.A No. 1883/Kol/2012 Assessment Year: 2006-07 Assistant Commissioner of Income-tax, Vs. M/s. Radhanath Bhunia & Sons Circle-2, Midnapore (PAN:AAIFR1540E) (Appellant) (Respondent)

Date of hearing: 27.05.2015 Date of pronouncement: 11.06.2015

For the Appellant: Shri K. L. Kanak, Sr. DR For the Respondent: Shri Somnath Ghosh, Advocate

ORDER Per Shri Mahavir Singh, JM:

This appeal by revenue is arising out of order of CIT(A)-XXXVI, Kolkata, in appeal No. 332/CIT(A)-XXXVI/Kol/Cir-2,Mid/11-12/1433 dated 30.10.2012. Assessment was framed by DCIT, Cir-2, Midnapore, u/s. 147/143(3) of the Income-tax Act, 1961 (hereinafter referred to as "the Act") for Assessment Year 2006-07 vide his order dated 20.12.2011.

2. The only issue in this appeal of revenue is against the order of CIT(A) deleting the disallowance of truck hire charges amounting to Rs.24,06,172/- for non-deduction of TDS u/s. 194C of the Act by invoking the provisions of section 40(a)(ia) of the Act. For this, revenue has raised following ground:

"That on the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in deleting the addition of Rs.24,06,172/- made u/s. 40(a)(ia) by holding that only amount payable as on the closing date of previous year were inadmissible.

That on the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in holding that the provisions of section 40(a)(ia) could not be invoked to disallow expenditure which has been actually paid during the previous year."

3. At the outset, Ld. Counsel for the assessee Shri Somnath Ghosh, Advocate made a mention and has taken us to para 5 of CIT(A)'s order wherein the reopening is quashed. The relevant portion of para 5 reads as under:

"5. In view of the foregoing, I have the considered opinion that the very basis of reopening proceedings suffers from illegality. AO has miserably failed to record the 'reasons recorded for reopening' by mentioning, inter alia, that audit scrutiny revealed 2 ITA No.1883/K/2012 Radhanath Bhunia & Sons AY 2006-07

......."proving thereby that the case was reopened at the instance of Revenue Audit which is not legal and made beyond jurisdiction and authority of the AO."

When a query was put to ld. Counsel Shri Ghosh, whether the reopening was the issue before CIT(A), he drew our attention to the grounds raised before CIT(A) vide ground no. 3 reproduced in the CIT(A)'s order at page 1, which reads as under:

"3. Without prejudice to the above grounds, the proceedings initiated u/s. 147 of the I. T. Act, 1961 and order passed in consequence thereto are bad in law and on facts and circumstances of the case."

Ld. Counsel for the assessee stated that the revenue has not challenged the quashing of reopening/reassessment proceedings by CIT(A). On this, we turned to Ld. Sr. DR and asked him whether the revenue has challenged the reopening? He categorically stated that from the ground it is clear that it is not challenged.

4. We have heard rival submissions and gone through the facts and circumstances of the case. We find that the revenue has not challenged the quashing of reassessment proceedings by CIT(A) and once quashing of reassessment proceeding is accepted by CIT(A) nothing survives. Accordingly, appeal of revenue is dismissed.

5. In the result, appeal of Revenue is dismissed.

6. Order is pronounced in the open court on 11.06.2015.

Sd/- Sd/- (P. K. Bansal) (Mahavir Singh) Accountant Member Judicial Member

Dated : 11th June, 2015 Jd.(Sr.P.S.) Copy of the order forwarded to: 1. APPELLANT - ACIT, Cir-2, Midnapore.

2 Respondent - M/s. Radhanath Bhunia & Sons, Vill & PO Khukurdaha,

Ghatal, Via Panskura, dist Paschim Medinipur, WB.

3. The CIT(A), Kolkata

4. CIT , Kolkata

5. DR, Kolkata Benches, Kolkata /True Copy, By order, Asstt. Registrar.