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06-03-2019, Abhoy Kumar Pandey, Section 194C, 40(a)(ia), Tribunal Kolkata

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2 months 1 week ago #8742 by amit
Section - 194C, 40(a)(ia), 37, 144, 145(3)
Order Date - 06-03-2019
Favouring - Assessee Partly
Court - Tribunal Kolkata
Appellant - Abhoy Kumar Pandey
Respondent - ITO
Justice - A.T.VARKEY, JM & DR. A.L.SAINI, AM
Citation - 219Taxpundit182
Appeal No. - ITA No.484/Kol/2017
Asstt. Year - 2012-13


PER : Dr. A. L. Saini

The captioned appeal filed by the Assessee pertaining to assessment year 2012-13, is directed against an order passed by the learned Commissioner of Income Tax (Appeals)-14, Kolkata (in short the ld. CIT(A)], which in turn arises out of an assessment order passed by the Assessing Officer u/s 143(3) of the Income Tax Act, 1961 ( in short the Act) dated 18.03.2015.

2. The grievance raised by the assessee are as follows:

1. FOR THAT the Ld. CIT(A) was not justified in law in upholding addition of Rs. 5,82,626/ - on account of non-reconciliation of commission received from BSNL merely relying on entry in 26AS statement completely ignoring the ratio of the judgement of Hon'ble Delhi High Court in the case of 'Court on its Own Motion v. UOI and Ors(W.P.)(C) 2659/2012 & W. P.(C) 5443/2012 dated 14-3-2013.

2. FOR THAT the Ld. CIT(A) did not appreciate the petitioner's written submission in proper perspective and he was not justified in arbitrarily sustaining estimated disallowance of discount to field staff and salary to staff to the tune of 15% of the expenses made.

3. FOR THAT the Ld. CIT(A) erred in law in sustaining disallowance to the tune of Rs. 1,33,500/- on account of advertisement charges U/S 40(a)(ia) although no TDS was deductible under the law on the said expenses as the sums were paid to various advertisers through agent and each payment being below threshold limit for deduction of TDS.

4. FOR THAT the Ld. CIT(A) was not justified in sustaining 15% of ad hoc disallowance of bona fide and genuine supervision charges without bringing any material on record for confirming such disallowance.

5. FOR THAT the Ld. CIT(A) failed to appreciate that the legal charges paid amounting to Rs. 34,700/- to Advocate which was inclusive of variousreimbursement of expenses and such payment cannot be subjected for Tax Deducted at Source.

6. FOR THAT the Ld. CIT(A) omitted to adjudicate the appellant's submission and Grounds of Appeal in relation to disallowance of Rent U/S 40(a)(ia) amounting to Rs. 3,98.193/- paid to three different owners cash payment being below the threshold limit prescribed for deduction of tax for rent

7. FOR THAT the Ld. Authority below most arbitrarily upheld the disallowance to the tune of 15% on genuine and bona fide business expenses aggregating to Rs. 30,56,072/- on account of Conveyance, General Charges, Misc. Expenses, Printing, Repairs and maintenance. Tour Expenses which disallowance is liable to be deleted at this forum.

8. FOR THAT the Ld. CIT(A) erred in law in not appreciating petitioner’s submission or Service Tax liability of Rs. 20,90,729/- without at all considering the cited case law and facts and circumstances of the case. Your appellant craves leave to add supplement or amend further ground or grounds at the time of hearing.

3. Ground no. 1 raised by the assessee relates to addition of Rs. 5,82,626/- on account of non-reconciliation of commission received from BSNL.

4. Brief facts qua the issue are that the assessee is the proprietor of M/s International Telecom Network and is serving as a BSNL franchisee and the marketing partner of BSNL In respect of commission and discount received from BSNL a sum of Rs. 1,65,71,193/-, the assessee filed sanction memos that out of Rs. 1,65,71,193/-, Rs. 20,94,135/- received as service tax on 24.02.2012 as reflected in ITS details, and Rs. 65,67,998/- received as service tax on 31.03.2012 as reflected in ITS details. But the assessee has also filed another two sanction memos of service tax of Rs. 2,92,131/- and 19,956/- which were not tallied with payments as reflected in ITS details . And as such, these two memos of service tax are not considered. Therefore, out of commission and discount received of Rs. 1,65,71,193/- (Rs. 20,94,135/- + Rs. 65,67,998/-) Rs. 86,62,133/- was received as service tax. Hence gross receipt of commission and discount of the assessee is Rs. 79,09,070/- (Rs. 1,65,71,193/- - Rs. 86,62,123/-). But the assessee has shown its gross receipts of commission and discount of Rs. 73,26,444/- in his return of income. Hence, an amount of Rs. 5,82,626/- (Rs. 79,09,070/- - Rs. 73,26,444/-) as

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