DISHA NISEET RUPANI, MUMBAI V. ACIT , CIRCLE 27 (1), MUMBAI

ITA 1058/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6299 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 25-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Accommodation entries; TDS
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE PRAMOD KUMAR , VP AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 1058 /MUM/201 9 ( / ASSESSMENT YEAR: 20 11 - 12 ) DISHA NISEET RUPANI 202, PADMANABH DARSHAN, GOPAL LANE, L. B. S. MARG, GHATKOPAR (W), MUMBAI - 400086 . / VS. ACIT, CIRCLE - 27(1) TOWER NO.6, 4 TH FLOOR, VASHI RAILWAY STATION COMMERCIAL COMPLEX, VASHI, NAVI MUMBAI - 400703. ./ ./ PAN/GIR NO. : ANGPK4952N ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 29 /0 6 /202 1 / DATE OF PRONOUNCEMENT : 07 /07 /20 21 / O R D E R PER AMARJIT SINGH, J M: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 10 .0 1 .201 9 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 25 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 2011 - 12 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND LAW, THE LEARNED COMMISSIONER OF INCOME TAX (A) ERRED IN DIRECTING THE ASSESSING OFFICER TO REASSESS THE NET COMMISSION INCOME OF THE APPELLANT @1.25% PLUS TDS OF T HE GROSS VALUE OF BUILDING MATERIAL BILLS AS AGAINST 0.75% AS ADMITTED BY THE APPELLANT. ASSESSEE BY : NONE REVENUE BY: SHRI BHARAT ANDHLE ( D R) ITA NO. 1058 / M UM /201 9 A.Y.20 11 - 12 2 2. ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (A) ERRED IN DIRECTING THE AO TO ADOPT PERCENTAGES ON THE ACTIVITI ES CARRIED OUT BY THE APPELLANT, AND SUCH PERCENTAGES ARE EXCESSIVE AND NOT PREVALENT IN THE MARKET AS STATED IN THE ASSESSMENT ORDER TO BE THE RATE BEING CHARGED IN MARKET FOR SUCH TRANSACTIONS. 3. ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LA W, THE LEARNED COMMISSIONER OF INCOME TAX (A) ERRED IN DIRECTING THE ASSESSING OFFICER TO REASSESS HE NET COMMISSION INCOME OF THE APPELLANT @ 1% PLUS TDS OF THE GROSS VALUE OF TRANSPORTATION BILLS AS AGAINST 0.50% AS ADMITTED BY THE APPELLANT. 4. ON THE F ACTS AND THE CIRCUMSTANCES OF THE CASE AND N LAW, THE LEARNED COMMISSIONER OF INCOME TAX (A) ERRED IN ADOPTING THE RATE OF COMMISSION ON GROSS VALUE OF BUILDING MATERIAL @1.25% AND GROSS VALUE TRANSPORTATION @1% STATING THAT APPELLANT WAS NOT ABLE TO PROVE HANDING OVER THE CASH TO LI 19 PARTIES FROM WHOM CHEQUES WERE RECEIVED! WITHOUT APPRECIATING THE FACT THAT NEITHER THE ISSUE OF HANDING OVER THE CASH TO THE PARTIES WAS RAISED BY THE ASSESSING OFFICER IN THE COURSE OF ASSESSMENT PROCEEDINGS NOR THE SAME H AS BEEN DISCUSSED IN THE ASSESSMENT ORDER. 5. ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND, IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (A); FAILED TO APPRECIATE THAT APPELLANT HAS DURING THE COURSE OF APPELLATE PROCEEDINGS, EXPLAINED THAT SHE WA S MAINTAINING A DIARY WHEREIN ENTRIES OF CASH RETURNED BY HER TO THE PARTIES DURING THE YEAR UNDER REFERENCE HAVE BEEN DULY RECORDED. 6. ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND' IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (A)'L FAILED TO APP RECIATE THAT IN THE EARLIER ORDER OF CIT(A) DATED 08.09.2015 AGAINST THE ORIGINAL ASSESSMENT ORDER ITA NO. 1058 / M UM /201 9 A.Y.20 11 - 12 3 DATED 25.02.2014 RATE OF COMMISSION ON TRANSPORTATION BILLS WAS DETERMINED. @0.5% OF THE GROSS VALUE OF TRANSACTION. 7. THE APPELLANT CRAVES LEAVE TO ADD, A MEND, ALTER) MODIFY, DELETE AND/OR CHANGE ALL OR ANY ABOVE GROUNDS ON OR BEFORE THE DATE OF HEARING. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 29 . 09 .20 1 1 DECLARING TO TAL INCOME TO THE TUNE OF RS .1,53,030 / - FOR THE A.Y.2011 - 12 . THE ASSESSMENT WAS COMPLETED ON 25.02.2014 DETERMINING TOTAL INCOME TO THE TUNE OF RS.4,75,920/ - U/S 143(3) OF THE ACT. AT THE T IME OF ASSESSMENT, THE ASSESSEE FILED AN AFFIDAVIT THAT SHE WAS MERELY PROVIDING ACCOMMODATION ENTRIES AND NOT DOIN G ANY GENUINE BUSINESS. THE ASSESSEE WAS EARNING COMMISSION OF 0.5% ON TRANSPORT BILLS AND 0.75% BU ILDING MATERIAL BILLS. THE AO HELD THAT THE RATE OF COMMISSION @ 2% ON SUPPLY OF MATERIAL AND @ 0.50 ON THE INCOME OF TRANSPORT ATION CHARGES. THE ASSESSEE FI LED AN APPEAL BEFORE THE CIT(A) WHO RESTRICTED THE ADDITION @ 2% ON INCOME ON SUPPLY OF MATERIAL AND 0.50% UPON THE INCOME OF TRANSPORT ATION CHARGES VIDE ORDER DATED 08.09.2015. THE ASSESSEE FILED AN APPEAL BEFORE THE HONBLE ITAT AND THE HONBLE ITAT REMA NDED THE ISSUE BEFORE THE AO T O JUSTIFY THE BILLS AND ASSESS THE INCOME ON SUPPLY OF MATERIAL @0.75%. THEREAFTER, THE AO FURTHER ASSESSE D THE INCOME ON SUPPLY OF MATERIAL @ 2% AND INCOME @ 2% ON TRANSPORT ATION CHARGES. SUBSEQUENTLY ON APPEAL, T HE CIT( A) R ESTRICTED THE INCOME @ 1.25% INCOME ON SUPPLY OF MATERIAL AND @ 1 % UPON THE INCOME OF TRANSPORT CHARGES. THE ASSESSEE WAS NOT SATISFIED , THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. ISSUE N OS. 1 & 2 ITA NO. 1058 / M UM /201 9 A.Y.20 11 - 12 4 4 . UNDER THESE ISSUES THE ASSESSEE HA S CHALLENGED THE ADDITION @ 1.2 5 % UPON THE INCOME ON SUPPLY OF MATERIAL. IT IS THE SECOND ROUND OF APPEAL, THE AO ESTIMATED THE COMMISSION @ 2% WHEREAS CIT(A) CONFIRMED THE COMMISSION INCOME @ 1.2 5 %. THE HONBLE ITAT HAS ALREADY DIRECTED TO ASSESS THE INCO ME @ 0.7 5 % AFTER DUE VERIFICATION OF BILLS AND CHEQUE S VIDE ORDER DATED 28.11.2016 . THE ASSESSMENT ORDER SPEAKS ABOUT THE NON - FURNISHING OF PROPER EVIDENCE. HOWEVER, AT THE TIME OF FILING THE PRESENT APPEAL, THERE IS NOTHING ON RECORD TO WHICH IT CAN BE AS SUMED THAT THE RATE OF COMMISSION SHOULD BE @ 1.2 5 % . THIS MATTER HAS ALREADY BEEN C ONSIDER ED BY THE HONBLE ITAT AND THE HONBLE ITAT HAS ALREADY DIRECTED THE AO TO ASSESS THE INCOME @ 0.75% AFTER DUE VERIFICATION OF BILLS AND CHEQUES. WE NOWHERE WANT TO F URTHER RE - ASSESS THE INCOME ON SUPPLY OF MATERIAL. BY RELYING UPON THE ORDER OF THE HONBLE ITAT DATED 28.11.2016, W E RESTRICT THE COMMISSION INCOME @ 0.75 % ON SUPPLY OF MATERIAL. ACCORDINGLY, THESE ISSUES ARE DECIDED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. ISSUE NOS. 3 & 4 5. WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. WE FIND THAT THE CIT(A) HAS PASSED THE ORDER DATED 08.09.2015 IN WHICH THE INCOME @ 0.5% WAS ESTIMATED ON TRANSPORT ATION CHARG ES AND THE SAID FINDING H AS ACCEPTED BY ASSESSEE. THE ASSESSEE DID NOT APPEAL BEFORE THE HONBLE ITAT ON THESE GROUNDS. HOWEVER, THE HONBLE ITAT REMANDED THE ISSUE OF COMMISSION INCOME ON SUPPLY OF MATERIAL BEFORE THE AO. BUT THE AO RE - ASSESS THE INCOME O N SUPPLY OF MATERIAL @ 2% AND INCOME ON TRANSPORTATION CHARGES @ 2% . THE ITA NO. 1058 / M UM /201 9 A.Y.20 11 - 12 5 ISSUE OF TRANSPORTATION CHARGES WAS NOT REMANDED TO THE AO. BUT THE AO RE - ASSESSED THE I NCOME ON TRANSPORT CHARGES @ 2% WHICH IS NOT JUSTIFIABLE . THE CIT(A) HAS ASSESSED THE INCOME ON TRANSPORTATION CHARGES @ 0.50% WHICH HAS BEEN ACCEPTED BY THE ASSESSEE. KEEPING IN VIEW OF THE ALL THE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE INCOME @ 0.5 0 % ON TRANSPORT CHARGES HAS ATTAINED THE FINALITY VIDE ORDER DATED 08.09.2015 PASSED BY THE CIT(A) WHICH IS NOT LIABLE TO BE VARIED /CHANGED. ACCORDINGLY, WE RESTRICT THE ADDITION @ 0.50% UPON THE COMMISSION INCOME ON TRANSPORTATION CHARGES. WE DECIDE THESE ISSUES IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. 9 . IN THE RESULT, THE APPEAL FIL ED BY THE ASSESSEE IS HEREBY PARTLY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 07 / 07 / 202 1 SD/ - SD/ - (PRAMOD KUMAR) (A MARJIT SINGH) / VICE PRESIDENT /JUDICIAL MEMBER MUMBAI; DATED : 07 /0 7 / 2021 VIJAY PAL SINGH/SR. PS ITA NO. 1058 / M UM /201 9 A.Y.20 11 - 12 6 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / /(DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI