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Park Interna tional,42/1, Sham sul Hu da Road,Kolka ta-700 017 Vs. In come Tax Officer,Warde-32(3),Kolkata
July, 20th 2012
                         KOLKATA `A' BENCH, KOLKATA

                   Before Shri Pramod Kumar (Accountant Member),
                      and Shri George Mathan (Judicial Member)

                                    I.T.A. No .: 1911/ Kol . / 2009
                                     Assessme nt year : 20 06-07

     Park Interna ti onal,.........................................Appellan t
     42/1, Sham sul Hu da Road,
     Kolka ta-700 017
     [PAN : AADFP 84 69 R]

     In come Tax Officer,....... ..............................Responden t
     Warde-32(3), Kolk ata

     Appearances by:
     Shri S. Bagchi and Shri G.R. Sharma, for the appellant
     Shri A.K. Dey, D.R., for the respondent

     Date of co ncluding t he hea ri ng            : July 18, 2012
     Date of prono unci ng the o rde r             : July 18, 2012

                                 O R D E R
     Per George Mathan :
     1.   This is an appeal filed by the assessee against the order of ld.

     Commissioner of Income Tax(Appeals)-XIX, Kolkata in Appeal No.

     399/CIT(A)-XIX/ITO, Ward.32(3) Kol/08-09 dated 11.09.2009, for the

     assessment year 2006-07.

2.   2.     In assessee's appeal, the assessee has raised the following

                "Th at on the f acts an d ci rcumstances of the ca se, ld. CIT(A) erred
                in confirming th e di sall owa nce of entire ex pen diture of f reight for
                                                            I . T. A . N o . 1 9 11 / K o l . / 2 0 0 9
                                                              A s s e s s m e nt y e a r : 2 0 0 6- 0 7

                                                                                         Page 2 of 3

         exp ort in the sum of Rs.79,23,305/- (incorrectly taken in pl ace of
         Rs.79,88,304 /-) und er secti on 4 0(a)(ia) read with section 194 C of
         the I.T. Act".

3.    Shri S. Bagchi, ld. counsel represented on behalf of the assessee

and Shri A.K. Dey, ld. D.R. appeared on behalf of the revenue.

4.    It was submitted by the ld. A.R. on behalf of the assessee that the

only issue in this appeal was against the action of the ld. CIT(Appeals)

in confirming the action of the Assessing Officer in invoking the

provisions of section 40(a)(ia) of the Act on account of the alleged non-

deduction of TDS on the transport payments. It was fairly agreed by

both the sides that the issue in regard to the invocation of the

provisions of section 40(a)(ia) was now squarely covered by the

decision of the Special Bench of this Tribunal in the case of Merilyn

Shipping & Transports in ITA No. 477/Viz./2008 dated 29.03.2012. It

was, however, submitted by ld. D.R. that it needs to be verified as to

whether the payments have been made du ring the year or whether

there was any amount payable as on the end of the relevant assessment

year. It was the submission that for this verification, the issue may be

restored to the file of the Assessing Officer. To this submission of the

ld. D.R., ld. A.R. did not raise any objection.

5.    In these circumstances, respectfully following the decision of the

Special Bench of this Tribunal in the case of Merilyn Shipping &

Transports (supra), the Assessing Officer is directed to verify if any

amount is payable as on the end of the relevant assessment year. If all

the amounts have been paid, then obviously followin g the principles
                                                                  I . T. A . N o . 1 9 11 / K o l . / 2 0 0 9
                                                                    A s s e s s m e nt y e a r : 2 0 0 6- 0 7

                                                                                               Page 3 of 3

laid down by the Hon'ble Special Bench of this T ribunal in the case of

Merilyn Shipping & Transports, no addition shall be made. If any

amount is found to be payable as on the year end, then the Assessing

Officer shall give the assessee adequate opportunity to substantiate his

case as to why the disallowance, if any, should not be made by

invoking the provisions of section 40(a)(ia) of the Act.

6.      In these circumstances, the appeal of the assessee is allowed for

statistical purposes.

        The     order    is   dictated     and    pronounced     in     the        open           court

immediately upon conclusion of hearing today on 18 t h day of July,


           Sd/-                                                        Sd/-
       Pramod Kumar                                                George Mathan
   (Accountant Member)                                           (Judicial Member)
Kolkata, the 18 t h day of July, 2012

Copies to :     (1)     Th e app ell ant
                (2)     Th e respon dent
                (3)     CIT
                (4)     CIT(A)
                (5)     Th e D ep artment al Rep resentativ e
                (6)     Guard File

                                                                                     By order etc

                                                                   Assis tant Registrar
                                                         Income Tax Appe llate Tribunal
                                                              Kolkata benches, Kolkata
Laha/Sr. P.S.
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