PRAVIN KUMAR HETAMSARIA, RANCHI V. ASSISTANT COMMISSIONER OF INCOME TAX, Asansol

ITA 120/KOL/2019

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4774 (ITAT-KOLKATA)
• Duration Of Justice: 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 24-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDAR
• Assessee Lawyers: K M ROY
• Section: 143(3)

Judgement Text

ITA NO. 120/KOL/2019 ASSESSMENT YEAR: 2012-2013 PRAVIN KUMAR HETAMSARIA 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI A.T. VARKEY, JUDICIAL MEMBER I.T.A. NO. 120/KOL/2019 ASSESSMENT YEAR: 2012-2013 PRAVIN KUMAR HETAMSARIA,........................... ................................APPELLANT C/O. M/S. PRATIK AUTOMOBILES, PATEL CHOWK, OLD HAZARIBAGH ROAD, RANCHI-834 001 [PAN: AAYPH 0545 F] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. .........................RESPONDENT CIRCLE-3, ASANSOL, PARMAR BUILDING, GROUND FLOOR, 54, G.T. ROAD (WEST), ASANSOL APPEARANCES BY: SHRI K.M. ROY, FCA, FOR THE APPELLANT SHRI SANKAR HALDAR, JCIT, SR. D.R. , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : FEBRUARY 8, 2019 DATE OF PRONOUNCING THE ORDER : FEBRUARY 15, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ):- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS), ASANSOL DATED 09.10.2018 AND THE SOLITARY ISSUE INVOLVED THEREIN RELATES TO THE DISA LLOWANCE OF COMMISSION OF RS.9,48,250/- PAID TO SMT. DULARI DEVI HETAMSARI A. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERV ED THAT THE COMMISSION PAID TO SHRI SHYAM SUNDER HETAMSARIA AMOUNTING TO R S.9,80,300/- AND THE COMMISSION PAID TO SMT. DULARI DEVI HETAMSARIA AMOUNTING TO RS.9,48,250/- WERE DISALLOWED BY THE ASSESSING OFFI CER IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 13.02.2015. ON APPEAL, THE LD. CIT(APPEALS) DELETED THE DISALLOWAN CE OF COMMISSION OF RS.9,80,300/- PAID TO SHRI SHYAM SUNDER HETAMSARIA BY RELYING ON THE ITA NO. 120/KOL/2019 ASSESSMENT YEAR: 2012-2013 PRAVIN KUMAR HETAMSARIA 2 TRIBUNALS ORDER DATED 25.07.2018 PASSED IN ITA NO. 314/KOL/2015 IN ASSESSEES OWN CASE FOR A.Y. 2010-11, WHEREIN A SIM ILAR PAYMENT OF COMMISSION TO SHRI SHYAM SUNDER HETAMSARIA WAS HELD TO BE GENUINE. AS FURTHER OBSERVED BY THE LD. CIT(APPEALS) IN HIS IMP UGNED ORDER, THE ITAT, HOWEVER, DID NOT GIVE RELIEF TO THE ASSESSEE IN RES PECT OF PAYMENT OF COMMISSION MADE TO SMT. DULARI DEVI HETAMSARIA AND ACCORDINGLY THE SIMILAR DISALLOWANCE MADE ON ACCOUNT OF COMMISSION PAID TO SMT. DULARI DEVI HETAMSARIA WAS CONFIRMED BY HIM. 3. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED ON RECORD THE TRIBUNALS ORDER DATED 31.01.2019 PAS SED IN ITA NO. 912/KOL/2017 IN ASSESSEES OWN CASE FOR A.Y. 2011-1 2. AS NOTED IN THE SAID ORDER, A SIMILAR DISALLOWANCE MADE ON ACCOUNT OF COMMISSION TO THE SAME TWO PAYEES WAS DELETED BY THE TRIBUNAL IN ASSE SSEES OWN CASE FOR A.Y. 2010-11 VIDE ITS ORDER DATED 25.07.2018 PASSED IN ITA NO. 314/KOL/2015. IT APPEARS THAT THERE IS SOME CONTRAD ICTION AS REGARDS THE FINAL OUTCOME OF THE SIMILAR ISSUE IN ASSESSEES OW N CASE FOR A.Y. 2010-11 AS NOTED BY THE LD. CIT(APPEALS) IN HIS IMPUGNED OR DER AND AS NOTED BY THE TRIBUNAL IN ITS ORDER DATED 31.01.2019 (SUPRA) AND IN THE ABSENCE OF COPY OF THE TRIBUNALS ORDER DATED 25.07.2018 (SUPR A) FOR A.Y. 2010-11, WE ARE UNABLE TO RESOLVE THIS CONTRADICTION. WE, TH EREFORE, SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) ON THIS ISSU E AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR ASC ERTAINING THE EXACT POSITION FROM THE TRIBUNALS ORDER DATED 25.07.2018 FOR A.Y. 2010-11 AND GIVE PROPER RELIEF TO THE ASSESSEE ACCORDINGLY. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATE D AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUARY 15, 2019. SD/- SD/- (A.T. VARKEY) (P.M. JAGTAP) JUDICIAL MEMBER VICE -PRESIDENT (KZ) KOLKATA, THE 15 TH DAY OF FEBRUARY, 2019 ITA NO. 120/KOL/2019 ASSESSMENT YEAR: 2012-2013 PRAVIN KUMAR HETAMSARIA 3 COPIES TO : (1) PRAVIN KUMAR HETAMSARIA, C/O. M/S. PRATIK AUTOMOBILES, PATEL CHOWK, OLD HAZARIBAGH ROAD, RANCHI-834 001 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-3, ASANSOL, PARMAR BUILDING, GROUND FLOOR, 54, G.T. ROAD (WEST), ASANSOL (3) COMMISSIONER OF INCOME TAX (APPEALS), ASANSOL, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.