Rajendra Sethia, Kolkata vs Department Of Income Tax

IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH: KOLKATA

[Before Hon'ble Shri Mahavir Singh, JM & Hon'ble Shri B.P.Jain, AM ]

I.T.A No.1771/Kol/2012 Assessment Year: 2009-10

A.C.I.T., Circle-56, Vs. Shri Rajendra Sethia, Kolkata Kolkata (Appellant) (Respondent) (PAN:AIXPS 9803 N) For the Appellant : Shri K.L.Kanak, Sr.DR For the Respondent : Shri Anil Kochar, Advocate

Date of hearing : 13.05.2015. Date of pronouncement: 15.05.2015. ORDER

Per Shri B.P.Jain, AM :

This appeal of the Revenue arises out of the order of ld.CIT(A)-XXXVI, Kolkata dated 25.09.2012 for Assessment Year 2009-10.

2. The Revenue has raised the following grounds of appeal :-

"1. That on the facts and in the circumstances of the case the Ld.CIT(A)-XXXVI, Kolkata, erred in facts and in law by allowing the assessee's appeal against the addition of the Assessing Officer made on account of deductions claimed by the assessee to the tune of Rs.11,98,936/- being in the nature of Rent & Warehousing Charges, without making TDS in accordance with Section 194 I, thereby violating the provision of Section 40(a)(ia).

2. That on the facts and in the circumstances of the case the Ld. CIT(A)-XXXVI, Kolkata, erred in allowing the deductions claimed by the assessee, relying on the Judgment of a different jurisdictional Appellate Tribunal (ITAT Vizag) without considering the Order passed by the High Court of Punjab & Haryana in the case of Milk Specialities Ltd. Vs CIT, 21 Taxmann 327 [2012] favouring revenue.

3. That the Appellant craves leave to add, alter/or amend any of the grounds of appeal during the course of hearing."

3. The only issue in this appeal of revenue is against the order of ld. CIT(A) deleting the disallowances made by the AO on account of rent and warehousing charges by invoking the provisions of section 40(a) (ia) of the Act for non deduction of TDS u/s 194 I of the Act.

2 ITA No.1771/Kol/2012 Shri Rajendra Sethia.

A.Yr.2009-10

4. At the outset, it is noticed from the order of the ld. CIT(A) that the ld. CIT(A) has relied upon the decision of Special Bench of ITAT Vishakapatnam in the case of Merilyn Shipping & Transports, Vishkapatnam vs ACIT in ITA NO.477/Viz./2008 order dated 29.03.2012 wherein the amount was paid or payable. We find that this issue now stands covered by the decision of the Hon'ble Jurisdictional High Court in the case of CIT vs Crescent Exports Syndicate (2013) 216 Taxman 258 (Cal) where in the order of the Special Bench in the case of Merilyn Shipping & Transports has been reversed. The ld. Counsel for the assessee, argued that the only thing is to be verified in terms of second proviso inserted in sub-clause (ia) of Clause (a) of section 40(a)(ia) by the Finance Act, 2012 w.e.f. 01.04.2013 whether the recipient has included the income in the respective returns or not and also paid taxes for warehousing charges. For this the Coordinate Bench of this Tribunal in ITA No.1905/Kol/2014 for A.Yr. 2007-08 in the case of Santosh Kr.Kedia vs ITO order dated 04.03.2015 wherein it has been held as under :-

"10. Secondly, I am of the view that the insertion of second proviso to sec. 40(a)(ia) of the Act is curative and it has retrospective effect w.e.f. 1st April, 2005, being a date from which Sec. 40(a)(ia) of the Act was inserted by the Finance (No. 2) Act, 2004. In view of this, I am of the view that matter needs fresh adjudication in the light of the fact that the AO will carry out necessary verification in regard to related payments having been taken into account by the recipient in computation of its income and verification of payment of taxes in respect of such income and also filing of income tax return by the recipient. In term of the above, the second aspect argued by Ld. counsel is restored back to the file of the AO and assessee will provide all the details in terms of second proviso to sec. 40(a)(ia) of the Act. "

5. The facts are in the order of AO but the ld.CIT(A) has not adjudicated the same. On query from the Bench the ld.DR stated that there is no objection if the matter is restored back to the file of the AO, who will verify the facts. In terms of the above the appeal of the revenue is partly allowed and the issue in respect of no deduction of TDS on warehousing charges is set aside to the file of AO for verification whether the recipient has included the income in the respective returns or not and paid taxes for warehousing charges.

3 ITA No.1771/Kol/2012 Shri Rajendra Sethia.

A.Yr.2009-10

6. In the result the appeal of the revenue is allowed for statistical purposes.

Order pronounced in the court on 15.05.2015.

Sd/- Sd/- [ Mahavir Singh ] [B.P.Jain] Judicial Member Accountant Member

Date: 15.05.2015. R.G.(.P.S.)

Copy of the order forwarded to:

1. Shri Rajendra Sethia, Prop of M/s. Western Carriers and M/s. Western Enterprises, 67/28, Strand Road, Kolkata-700006.

2 ACIT, Circle-56, Kolkata.

3. C.I.T.- (A)-XXXVI, Kolkata. 4. CIT Kolkata

5. CIT(DR), Kolkata Benches, Kolkata.

True Copy, By order,

Asst. Registrar, ITAT, Kolkata Benches