ITO, New Delhi V. Rakesh Kumar Aggarwal, Delhi

ITA 1089/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7799 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 02-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 25-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAMAN KANT GARG
• Assessee Lawyers: RAKESH GUPTA; SOMIL AGGARWAL ADVS
• Keywords: Additional evidence; Revised return; Revenue expenditure
• Section: 133(6)

Judgement Text

1 ITA NO. 1089/DEL/2013 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEM BER AND SMT SUCHITRA KAMBLE , JUDICIAL MEMBER I.T.A .NO.-1089/DEL/2013 (ASSESSM ENT YEAR-2009-10) ITO WARD-36(3), H-BLOCK, VIKAS BHAWAN NEW DELHI (APPELLANT) VS RAKESH KUMAR AGGARWAL U-141, FLAT NO. 12, SHAKARPUR DELHI ABOPA5261G (RESPONDENT) APPELLANT BY SH. RAMAN KANT GARG, SR. DR RESPONDENT BY SH. RAKESH GUPTA & SH. SOMIL AGGARWAL, ADVS. ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER DATED 07/11/2012 PASSED BY CIT(A) XXVII, NEW DELHI. 2. THE GROUNDS OF APPEAL ARE AS FOLLOWS:- DATE OF HEARING 02.03.2016 DATE OF PRONOUNCEMENT 20.05.2016 2 ITA NO. 1089/DEL/2013 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAD ERRED IN ALLOWING COMMISSION EXPENSES OF RS.1,2 4,08,773/- (RS.1,34,00,273/- RS.9,91,500/-) OUT OF TOTAL COMM ISSION RECEIPTS OF RS.1,70,89,387/- AND OTHER EXPENSES IN THE REVISED COMPUTATION FILED DURING THE APPELLATE PROCEEDINGS, FIGURES OF WHICH ARE TOTALLY DIFFERENT AS DECLARED IN THE RETU RN AND AS FURNISHED DURING ASSESSMENT PROCEEDINGS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAD ALLOWED THE COMMISSION EXPENSES AND OTHER EXPEN SES AS PER REVISED COMPUTATION FILED DURING THE APPELLATE PROCEEDINGS, EVEN WHEN THE ACCOUNTS WERE NOT AUDITED U/S 44AB AN D COMPLETE DETAILS OF EXPENSES/RECEIPTS NOT FURNISHED /VERIFICATION NOT MADE AND EXPENSES AND RECEIPTS ARE NOT FULLY VO UCHED AND BOOKS OF ACCOUNT/VOUCHERS WERE NOT MAINTAINED AS C LEARLY POINTED BY A.O. IN THE ORDER. ANY REVISION IN COMP UTATION CAN BE MADE BY WAY OF FILING REVISED RETURN AS HELD BY HON'BLE SUPREME COURT DECISION IN THE CASE OF GOETZE INDIA LTD. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT (A) HAD ERRED IN ALLOWING COMMISSION EXPENSES IGNOR ING THE FACTS THAT THE ASSESSEE HAD NOT DEDUCTED TAX AT SOU RCE U/S 194H ON COMMISSION/BROKERAGE PAID AND THE EXPENSES ON COMMISSION/BROKERAGE WAS REQUIRED TO BE DISALLOWED U/S40A (IA) OF THE INCOME TAX ACT, 1961. 3. THE APPELLANT IS ENGAGED IN THE BUSINESS OF PROC UREMENT OF DEPOSITS/ INVESTMENTS IN MUTUAL FUNDS FROM DIFFEREN T CLIENTS FOR WHICH HE EARNS COMMISSION INCOME. THE A.O. DURING T HE COURSE OF THE ASSESSMENT PROCEEDINGS ASKED THE APPELLANT TO F ILE DETAILS OF COMMISSION RECEIVED ALONG WITH COPIES OF BANK ACCOU NTS. THE APPELLANT VIDE HIS REPLY DATED 22.11.2011 SUBMITTED COPIES OF THREE BANK ACCOUNTS, I.E., A/C NO. 10733 WITH AXIS BANK I N THE NAME OF RAKESH KUMAR AGARWAL, A/C NO. 22792 WITH AXIS BANK IN THE NAME 3 ITA NO. 1089/DEL/2013 OF AGARWAL INVESTMENT CONSULTANTS AND A/C NO. 1255 WITH KOTAK MAHINDRA BANK IN THE NAME OF AGARWAL INVESTMENT CON SULTANTS. 4. THE A.O. CALLED FOR COPIES OF THE APPELLANTS BA NK ACCOUNTS FROM BANKS AND FOUND OUT THAT THE APPELLANT WAS IN FACT MAINTAINING SIX ACTIVE BANK ACCOUNTS AS PER DETAILS GIVEN BELOW:- SR. NO. NAME OF THE BANK NAME OF HOLDER BANK A/C NO . AMOUNT OF THE RECEIPTS/BROKERAGE DISCLOSED ACCOUNTS 1. AXIS BANK AGGARWAL INVST. CONST. 22792 44,26,460/- 2. AXIS BANK RAKESH KUMAR AGARWAL 10733 1,32,83,844/- UNDISCLOSED ACCOUNTS 3. KOTAK MAHINDRA RAKESH KUMAR AGARWAL 103 175/- 4. KOTAK MAHINDRA AGARWAL INVS. & CONST. 1255 2 8,60,385/- 5. AXIS BANK RAKESH KUMAR AGARWAL 18912 20,290/ - 6. AXIS BANK AGARWAL INVS. & CONST. 9843 9,93,9 79/- 7. AXIS BANK R. K. AGARWAL 240086 79,46,330/- 5. AS FAR AS BANK ACCOUNTS AT SR. NO. 3 TO 7 ARE CO NCERNED THE A.O. HELD THAT THE APPELLANT HAD NOT DISCLOSED THES E ACCOUNTS IN HIS BALANCE SHEET AND SUBMISSIONS FILED DURING THE COUR SE OF THE ASSESSMENT PROCEEDINGS PARTICULARLY DATED 22.11.201 1. HE ADDED THE TOTAL OF ALL THE CREDITS IN THESE BANK ACCOUNTS TO THE APPELLANTS INCOME ON THE GROUND THAT THE APPELLANT HAD NOT EXP LAINED THE CREDIT ENTRIES IN THESE ACCOUNTS RESULTING IN AN AD DITION OF RS. 1,18,21,159/-. FURTHER, WITH RESPECT TO BANK ACCOUN TS AT SR. NO. 1 AND 2, THE A.O. OBSERVED THAT THE TOTAL CREDIT ENTR IES IN THESE 4 ITA NO. 1089/DEL/2013 ACCOUNTS CAME TO RS. 1,77,10,405/- WHEREAS THE APPE LLANT HAD SHOWN COMMISSION RECEIPTS OF RS. 34,08,651/- ONLY. HE, THEREFORE, ADDED THE DIFFERENCE OF RS. 1,43,01,754/- TO THE IN COME OF THE APPELLANT ON ACCOUNT OF UNDISCLOSED COMMISSION RECE IPTS. 6. FURTHER, THE APPELLANT HAD CLAIMED AN AMOUNT OF RS. 18,26,251/- ON ACCOUNT OF BROKERAGE PAID TO DIFFERE NT PERSONS. THE A.O. ASKED THE APPELLANT TO FILE DETAILS IN RESPECT OF THESE PERSONS. THE A.O. DISALLOWED THIS AMOUNT AND ADDED IT TO THE APPELLANTS INCOME ON THE GROUND THAT THE APPELLANT VIDE HIS LE TTER DATED 15.12.2011 HAD PROVIDED ONLY NAMES AND ADDRESSES OF THE PERSONS TO WHOM COMMISSION HAD BEEN PAID. COMMISSION AMOUNT ING TO RS. 6,26,251/- WAS PAID IN CASH WHICH WAS DISALLOWED ON THE GROUND THAT THE SOURCE OF CASH PAYMENT HAD NOT BEEN ESTABL ISHED BY THE APPELLANT. 7. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSE E FILED APPEAL BEFORE THE CIT(A). 8. THE APPELLANT SUBMITTED BEFORE THE CIT(A) THAT D UE TO LACK OF KNOWLEDGE IN PRESENTING THE ACCOUNTS IN SYSTEMATIC AND PROPER MANNER BY HIS COUNSEL ALL THE FACTS AND FIGURES COU LD NOT BE DISCLOSED FULLY AND CORRECTLY. THE APPELLANT, THERE FORE, FILED A PAPER BOOK HAVING MORE THAN 300 PAGES, INCLUDING CO PY OF CASH BOOK AND LEDGER AND COPIES OF ALL THE BANK ACCOUNTS IN THE NAME 5 ITA NO. 1089/DEL/2013 OF SH. RAKESH KUMAR AGARWAL AND AGARWAL INVESTMENT CONSULTANTS. IT WAS SUBMITTED THAT HE WAS RECEIVING COMMISSION FROM VARIOUS CLIENTS WHO MADE INVESTMENTS IN MUTUAL FUND THROUGH HIM. THE APPELLANT INTURN PAID BACK A MAJOR PART OF SUCH COMMISSION TO SUCH INVESTORS OR PERSONS DIRECTED BY THESE INVESTORS. IT WAS SUBMITTED THAT ALL THE COMMISSION RECEIVED FROM THE VARIOUS MUTUAL FUND HOUSES HAD BEEN RECEIVED TH ROUGH ACCOUNT PAYEE CHEQUES AND WAS DULY REFLECTED IN VAR IOUS BANK ACCOUNTS OF THE APPELLANT. THE A.O. HAD ADDED ALL T HE CREDIT ENTRIES IN THE DIFFERENT BANK ACCOUNTS OF THE APPEL LANT BY TREATING THEM AS THE APPELLANTS INCOME WITHOUT TAKING INTO ACCOUNT DEBIT ENTRIES WITH RESPECT TO PAYMENT OF COMMISSION TO TH E CLIENTS. THE DETAILS OF SUCH PAYMENTS OF COMMISSION WERE FILED A T PAGE NO. 36 - 40 AND 146 - 148 OF THE PAPER BOOK. THE DETAILS OF COMMISSION RECEIVED WERE FILED AT PAGES 41, 42 AND 149-167 OF THE PAPER BOOK. ON THE BASIS OF THESE DETAILS, IT WAS SUBMITTED THA T THE APPELLANT HAD RECEIVED THE TOTAL COMMISSION OF RS. 1,70,89,38 7/- (RS. 4,81,812/- IN AGARWAL INVESTMENT & CONSULTANTS AND RS. 1,66,07,574/- IN THE HANDS OF SH. RAKESH KUMAR AGAR WAL). AGAINST THESE RECEIPTS, THE APPELLANT HAD PAID COMM ISSION AMOUNTING TO RS. 1,34,00,273/- I.E., RS. 70,65,823/ - THROUGH AGARWAL INVESTMENT CONSULTANTS AND BALANCE THROUGH SH. RAKESH KUMAR AGARWAL. THE NAMES AND COMPLETE ADDRESSES OF THE PERSONS TO WHOM COMMISSION HAD BEEN PAID WAS ALSO F ILED ALONG 6 ITA NO. 1089/DEL/2013 WITH APPLICATION UNDER RULE 46A OF THE I T RULES FO R ADMISSION OF ADDITIONAL EVIDENCE. 9. THE APPELLANTS APPLICATION FILED UNDER RULE 46 A ALONG WITH PAPER BOOK BEFORE THE CIT(A) WAS FORWARDED TO THE A .O. FOR COMMENTS WHO VIDE REPORT DATED 05.09.2012 SUBMITTED THAT THE ADDITIONAL EVIDENCE FILED BY THE APPELLANT SHOULD N OT BE ADMITTED BECAUSE SUFFICIENT OPPORTUNITY HAD BEEN PROVIDED TO THE APPELLANT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS TO FILE VARIOUS DETAILS IN SUPPORT OF HIS CLAIM. IT WAS FURTHER SUB MITTED THAT THE APPELLANT HAD FAILED TO BRING ON RECORD ANY SUFFICI ENT CAUSE THAT PREVENTED HIM TO PRODUCE RELEVANT DOCUMENTS DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 10. THE APPELLANT FILED DETAILS BEFORE THE CIT(A) WHICH DEMONSTRATED THAT HE HAD RECEIVED COMMISSION AMOUNT ING TO RS. 1,70,89,387/- OUT OF WHICH HE HAD PASSED ON COMMISS ION OF RS. 1,34,00,273/- TO VARIOUS PERSONS. AN ENQUIRY WAS CO NDUCTED BY THE A.O. IN RESPECT OF CLAIM OF PAYMENT OF COMMISSI ON TO VARIOUS PARTIES. THE A.O. ISSUED NOTICE U/S 133(6) OF THE A CT TO VARIOUS PARTIES TO WHOM COMMISSION HAD BEEN PAID. IT HAS BE EN STATED BY THE A.O. THAT CONFIRMATIONS HAD BEEN RECEIVED FROM THESE PERSONS. HOWEVER, THE A.O. SUBMITTED THAT IN SPITE OF CONFIR MATIONS RECEIVED FROM VARIOUS PERSONS THE SAME SHOULD NOT BE ACCEPTE D AT THIS 7 ITA NO. 1089/DEL/2013 STAGE BECAUSE THE APPELLANT HAD FAILED TO FURNISH T HESE DETAILS DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. 11. A COPY OF THE REMAND REPORT WAS SUPPLIED TO TH E APPELLANT FOR FILING HIS REJOINDER. IN HIS REJOINDER, THE APPELL ANT SUBMITTED THAT ON THE BASIS OF THE ADDITIONAL EVIDENCE FILED BY HI M, THE A.O. HAD CONDUCTED VARIOUS ENQUIRIES AS STATED BY HER IN THE REMAND REPORT. CONFIRMATIONS WERE CALLED FOR FROM VARIOUS PERSONS WHICH WERE DULY RECEIVED. THE APPELLANT SUBMITTED THAT HAVING MADE THE ENQUIRIES IN RESPECT OF THE ADDITIONAL EVIDENCE, TH E A.O. SHOULD NOT HAVE OBJECTED TO THE ADMISSION OF THE SAME. IT WAS FURTHER SUBMITTED THAT THE APPELLANT WAS PREVENTED BY SUFFI CIENT CAUSE FROM FILING THE NECESSARY EVIDENCE AND DOCUMENTS AS COULD BE SEEN FROM THE SHOW CAUSE NOTICE ISSUED BY THE A.O. ON 12 .12.2011. IN RESPONSE TO THIS NOTICE THE APPELLANT HAD ATTENDED THE PROCEEDINGS ON 20.12.2011 AND THE ASSESSMENT WAS FINALIZED ON 2 6.12.2011. COMPLETE DETAILS WITH REGARD TO THE NAME, ADDRESS A ND PAN OF THE PERSON TO WHOM COMMISSION HAD BEEN PAID WERE NOT AV AILABLE WITH THE APPELLANT AT THE TIME OF ASSESSMENT PROCEEDINGS AND SAME WERE COLLECTED FROM THE BANK ACCOUNTS THROUGH WHICH PAYMENT HAD BEEN MADE TO THE PERSONS. 12. THE CIT(A) ADMITTED THE APPELLANT'S APPLICATION UNDER RULE 46A AND ADDITIONAL EVIDENCE. THE CIT(A) OBSERVED TH AT COPIES OF 8 ITA NO. 1089/DEL/2013 THE BANK ACCOUNTS IN WHICH THE COMMISSION HAD BEEN RECEIVED AND FROM WHICH COMMISSION HAD BEEN PAID TO VARIOUS PERSONS WERE ALREADY AVAILABLE WITH THE A.O. DURING THE COU RSE OF THE ASSESSMENT PROCEEDINGS AS IS EVIDENT FROM THE ADDIT IONS MADE BY THE AO ON THE BASIS OF THESE BANK ACCOUNTS. THEREFO RE, THE APPELLANT HAS ONLY EXPLAINED AND CLARIFIED VARIOUS ASPECTS OF COMMISSION RECEIVED AND COMMISSION PAID. MOREOVER O N THE BASIS OF ADDITIONAL EVIDENCE FILED BY THE, APPELLANT AND AFTER GETTING FURTHER DETAILS FROM THE APPELLANT DURING THE COURS E OF THE REMAND PROCEEDINGS, THE A.O. HAS CONDUCTED ENQUIRIES BY IS SUING NOTICE U/S 133(6) OF THE ACT. THEREFORE, KEEPING IN VIEW T HE COMPLETE FACTS OF THE CASE, THE ADDITIONAL EVIDENCE FILED BY THE APPELLANT WAS ADMITTED BY THE CIT(A). 13. ON MERIT CIT(A) HELD THAT THE FIRST ADDITION OF RS. 1,18,21,159/- WAS MADE ON ACCOUNT OF ALL THE CREDIT ENTRIES IN UNDISCLOSED BANK ACCOUNTS OF THE APPELLANT AND THE SECOND ADDITION OF RS. 1,43,01,754/- WAS MADE ON ACCOUNT O F UNDISCLOSED COMMISSION FROM THE TWO DISCLOSED BANK ACCOUNTS OF THE APPELLA NT. THE CIT(A) FURTHER OBSERVED THAT THE A.O. ADDED ALL THE CREDIT ENTRIES APPEARING IN ALL THE BANK ACCOUNTS OF THE A PPELLANT TREATING THEM AS HIS INCOME WITHOUT CONSIDERING THE NATURE O F THE CREDIT ENTRIES AND WITHOUT TAKING INTO ACCOUNT THE DEBIT E NTRIES. ALL THE CREDIT ENTRIES IN VARIOUS BANK ACCOUNTS ARE NOT ON ACCOUNT OF 9 ITA NO. 1089/DEL/2013 RECEIPT OF COMMISSION ONLY. MANY OF THE ENTRIES ARE IN RESPECT OF INTER-BANK AND INTER-ENTITY TRANSACTIONS (FROM RAKE SH KUMAR AGGARWAL TO AGGARWAL INVESTMENT CONSULTANTS AND VIC E VERSA) WHICH OBVIOUSLY ARE NOT IN THE NATURE OF INCOME. TH E CIT(A) FURTHER OBSERVED THAT ALL THE COMMISSION WAS RECEIVED BY TH E APPELLANT FROM MUTUAL FUND HOUSES THROUGH ACCOUNT PAYEE CHEQU ES. THE TOTAL OF THESE RECEIPTS AMOUNTS TO RS. 1,70,89,387/ - WHICH HAVE BEEN REFLECTED IN THE DIFFERENT BANK ACCOUNTS OF TH E APPELLANT. AGAINST THESE RECEIPTS, THE APPELLANT PAID BACK A M AJOR PART OF THE COMMISSION AMOUNTING TO RS. 1,34,00,273/- THROUGH T HE SAME BANK ACCOUNTS. THE A.O. AFTER CONDUCTING ENQUIRIES FROM PERSONS TO WHOM COMMISSION WAS PAID, FAILED TO POINT OUT AN Y INSTANCE WHERE THE PAYMENT OF COMMISSION WAS IN DOUBT OR NEE DED TO BE DISALLOWED. THE MAJOR PART OF THE COMMISSION WAS P AID THROUGH CHEQUE FROM THE BANK ACCOUNTS. THE CIT(A) FURTHER O BSERVED THAT A PERUSAL OF THE COMMISSION PAID ACCOUNT AT PAGE NO. 36-46 OF THE PAPER BOOK IN RESPECT OF AGGARWAL INVESTMENT CONSUL TANTS REVEALS THAT THE COMMISSION AMOUNTING TO RS.1,26,500/- WAS PAID IN CASH. THUS THE CIT(A) PARTLY ALLOWED THE APPEAL OF THE AS SESSEE. 14. THE LD. DR SUBMITTED THAT THE SUBSTANTIAL AMOUN T OF COMMISSION WAS CLAIMED AS PAID BY THE ASSESSEE AND THE SAME CONTENTION WAS ACCEPTED BY THE CIT (A), BY IGNORING THE FACT THAT THERE WAS NO CONFIRMATION FILED. THE SAID COMMISSI ON WAS NOT IN 10 ITA NO. 1089/DEL/2013 RESPECT OF EARNING INCOME AND THE CIT (A) SHOULD HA VE VERIFIED EACH ENTRY OF THE CORRESPONDING COMMISSION RECEIPT WHICH THE CIT (A) HAS NOT DONE PROPERLY. THE CIT (A) HAS NOT VERIFIE D THE NEXUS BETWEEN THE COMMISSION RECEIVED AND THE COMMISSION PAID AND HAS ALSO NOT EXAMINED THE CHARACTER OF THE COMMISSI ON PAID. TDS WAS NOT MADE. THE ACCEPTANCE OF THE REVISED COMPUT ATION BY THE CIT (A) WAS NOT AS PER THE SUPREME COURT JUDGMENT I N THE CASE OF GOETZE (INDIA) LTD. VS. CIT 2006 (284) ITR 323 (SC) . 15. THE LD. AR RELIED ON THE LD. CIT (A)S ORDER. T HE LD. AR SUBMITTED THAT AS PER PARA 11 THERE WAS A FINDING R ECORDED BY THE CIT(A) THAT THE A.O HAS RECEIVED THE CONFIRMATION F ROM THOSE PERSONS WHO RECEIVED COMMISSION AND THAT THIS WAS N OT REFUTED DURING THE COURSE OF HEARING. THE LD. AR ALSO RELI ED UPON THE EXPLANATION 1 OF SECTION 194H AND STATED THAT THE C OMMISSION RECEIVED BY THE ASSESSEE IS NOT BEING SECURITIES, D OES NOT COME UNDER THE PURVIEW OF STATUTE OF TDS PROVISIONS UNDE R THE INCOME TAX ACT. THE AMOUNT WAS PAID FROM THE SAME BANK AC COUNT IN WHICH THE COMMISSION INCOME WAS DEPOSITED AND HENCE THE NEXUS WAS FORMED. THE ASSESSEE ALSO RELIED UPON THE CASE OF CIT VS JAI PARABOLIC SPRINGS LTD. DECIDED ON 7 APRIL, 2008 BY THE JURISDICTIONAL HIGH COURT. THE LD. AR FURTHER SUBM ITTED THAT THE FACTUAL FINDING WAS PROPERLY RECORDED BY THE CIT (A ). THEREFORE, THE LD. AR PRAYED FOR DISMISSAL OF THE APPEAL OF THE RE VENUE. 11 ITA NO. 1089/DEL/2013 16. IN REJOINDER, THE LD. DR SUBMITTED THAT THERE W AS NO REMAND REPORT TAKEN OUT FROM THE ASSESSING OFFICER REGARDI NG VERIFICATION AND CONFIRMATIONS AND AS PER THIS; THE COMMISSION P AID CANNOT BE TREATED AS REVENUE EXPENDITURE. THE LD. DR ALSO RE LIED UPON THE ASSESSING OFFICERS ORDER. THE FIGURES REFLECTED I N ASSESSMENT ORDER AND IN CIT (A)S ORDER ARE DIFFERENT. 17. WE HAVE HEARD BOTH PARTIES AND PERUSED ALL THE DOCUMENTS. THE FINDINGS AND ELABORATE DISCUSSIONS ALONG WITH T HE DOCUMENTS ON RECORD INDICATE THAT THE CIT (A) HAS RIGHTLY ALL OWED THE CLAIM OF THE ASSESSEE. THE A.O HAS RECEIVED THE CONFIRMATIO N FROM THOSE PERSONS FROM WHOM THE ASSESSEE PAID COMMISSION. THE SAME WAS AT NO POINT OF TIME REFUTED DURING THE COURSE OF HE ARING BEFORE THE CIT (A), THE COMMISSION RECEIVED BY THE ASSESSEE NO T BEING ONE SECURITIES, WILL NOT COME UNDER THE PURVIEW OF TDS UNDER INCOME- TAX ACT, AS PER EXPLANATION I TO SECTION 194H. IT W AS CLEAR FROM THE RECORDS THAT THE AMOUNT WAS PAID FROM THE SAME BANK ACCOUNT IN WHICH THE COMMISSION AMOUNT WAS RECEIVED AND HENCE THE NEXUS IS FORMED. THE CASE RELIED UPON BY THE LD. AR THAT OF CIT VS JAI PARABOLIC SPRINGS LTD. DECIDED ON 7 APRIL, 2008 OF THE JURISDICTIONAL HIGH COURT HELD AS UNDER: 12 ITA NO. 1089/DEL/2013 17. IN GOETZE (INDIA) LIMITED V. COMMISSIONER OF INCOME TAX WHEREIN DEDUCTION CLAIMED BY WAY OF A LETTER BEFOR E ASSESSING OFFICER, WAS DISALLOWED ON THE GROUND THA T THERE WAS NO PROVISION UNDER THE ACT TO MAKE AMENDMENT IN THE RETURN WITHOUT FILING A REVISED RETURN. APPEAL TO THE SUPR EME COURT, AS THE DECISION WAS UPHELD BY THE TRIBUNAL AND THE HIG H COURT, WAS DISMISSED MAKING CLEAR THAT THE DECISION WAS LI MITED TO THE POWER OF ASSESSING AUTHORITY TO ENTERTAIN CLAIM FOR DEDUCTION OTHERWISE THAN BY REVISED RETURN, AND DID NOT IMPIN GE ON THE POWER OF TRIBUNAL. 18. FURTHER, REVENUE EXPENDITURE WHICH IS INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS MUST BE ALL OWED IN ITS ENTIRETY IN THE YEAR IN WHICH IT IS INCURRED. IT CA NNOT BE SPREAD OVER A NUMBER OF YEARS EVEN IF THE ASSESSED HAS WRI TTEN IT OFF IN HIS BOOKS OVER A PERIOD OF YEARS. [RELIANCE CAN BE PLACED ON MADRAS INDUSTRIAL INVESTMENT CORPORATION LTD. V. COMMISSIONER OF INCOME TAX ] 19. IN VIEW OF THE ABOVE DISCUSSION, IT IS VERY CLE AR THAT THERE IS NO PROHIBITION ON THE POWERS OF THE TRIBUNAL TO ENT ERTAIN AN ADDITIONAL GROUND WHICH ACCORDING TO THE TRIBUNAL A RISES IN THE MATTER AND FOR THE JUST DECISION OF THE CASE. THERE FORE, THERE IS NO INFIRMITY IN THE ORDER OF THE TRIBUNAL. 20. ACCORDINGLY, THE APPEAL OF THE REVENUE IS HEREB Y DISMISSED. THUS THE ASSESSEES CASE IS COVERED BY THE JURISDIC TIONAL HIGH COURT JUDGMENT. THE CLAIM HAS BEEN MADE BEFORE THE FIRST APPELLATE AUTHORITY AND THIS IS LEGALLY PERMITTED. THEREFORE, THE 13 ITA NO. 1089/DEL/2013 GROUNDS ON MERIT ARE RIGHTLY ALLOWED BY THE CIT(A) TAKING COGNIZANCE OF ALL THE RELEVANT DOCUMENTS PRODUCED B Y THE ASSESSEE AS WELL AS THE REPORT FILED BY THE ASSESSING OFFICE R. 18. IN RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 20 TH OF MAY, 2016. SD/- SD/- (J. SUDHAKAR REDDY) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMB ER DATED: 20/05/2016 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT R EGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 02/03/2016 PS 2. DRAFT PLACED BEFORE AUTHOR 04/03/2016 PS 14 ITA NO. 1089/DEL/2013 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2016 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 31.05.2016 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 3 1 .05.2016 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.