Sri Dinesh Kumar Taparia, Kolkata V. ITO, WD-34(3), KOLKATA, Kolkata

ITA 1277/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1849 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 07-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANJOY MUKHERJEE CIT DR RE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA SMC BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, HONBLE A CCOUNTANT M EMBER ] I.T.A. NO. 1 277 /KOL/201 6 ASSESSMENT YEAR: 20 1 0 - 11 SRI DINESH KUMAR TAPARIA ...... . ... APPELLANT C/O. INTERNATIONAL ENGINEERING AGENCY 47, N.S. ROAD KOLKATA 700 001 [PAN : ABHT 3153 F ] INCOME TAX OFFICER WARD - 3 4 ( 3 ) , KOLKATA .. ... RESPONDENT AAYAKAR BHAWAN (POORVA) 8 TH FLOOR 110, SHANITPALLY KOLKATA 700 107 APPEARANCES BY: SHRI SUNIL SURANA, ADVOCATE , APPEAR ED ON BEHALF OF THE ASSESSEE. SHRI SANJOY MUKHERJEE , ADDL. CIT , DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 2 8 TH , 2017 DATE OF PRONOUNCING THE ORDER : JANUARY 25 TH , 201 8 O R D E R PER J. SUDHAKAR REDDY : - THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 10 , KOLKATA , (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 19 /0 2 /201 6 , FOR THE ASSESSMENT YEAR 20 1 0 - 11, ON THE FOLLOWING EFFECTIVE GROUNDS: - FOR THAT THE LD. CIT(A) ERRED IN RESTRICTING THE DISALLOWANCE OF COMMISSION PAYMENTS TO 8% AS AGAINST THE ENTIRE COMMISSION PAYMENTS @ 12% DISALLOWED BY THE AO WHEN THE SERVICES RENDERED HAVE BEEN ACCEPTED AND THE PARTY TO WHOM THE COMMISSION WAS PAID WAS NOT RELATED. 2 I.T.A. NO. 1981/KOL/2017 ASSESSMENT YEAR: 2013 - 14 RAM BILAS AGARWAL 2. THE ASSESSEE CLAIMED TO HAVE PAID COMMISSION TO M/S. STACKER & DEVICES FOR HELPING IT TO GENERATE BUSINESS WITH M/S. HINDALCO. THE COMMISSION WAS PAID @ 12 PE R CENT. THE ASSESSING OFFICER DISALLOWED THE ENTIRE COMMISSION. 2.1. ON APPEAL, THE LD. FIRST APPELLATE AUTHORITY, UPHELD THE CLAIM OF THE ASSESSEE THAT M/S. STACKER & DEVICES HAVE RENDERED SERVICES AS COMMISSION AGENTS. HE DIRECTED THAT THE COMMISSION @ 8 PER CENT SHOULD BE ALLOWED. 3. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 4. WHEN THE FACT THAT M/S. STACKER & DEVICES HAD RENDERED SERVICES TO THE ASSESSEE, I S NOT IN DISPUTE BEFORE US AND WHEN THE AMOUNT HAS BEEN PAID BY ACCOUNT PAYEE CHEQUES, AFTER DUE DEDUCTION OF TAX AT SOURCE , IT IS NOT OPEN FOR THE LD. FIRST APPELLATE AUTHORITY TO FIX THE RATE OF COMMISSION THAT IS LIABLE FOR SUCH SERVICES. THE LD. CIT(A) , CANNOT SUBSTITUTE HIS JUDGEMENT TO THE RATE MENTIONS IN THE MOU ENTERED BETWEEN THE PARTIES. HENCE, I ALLOW THIS GROUND OF THE ASSESSEE AND DIRECT THE ASSESSING OFFICER TO ALLOW THE COMMISSION @ 8 PER CENT. 5. IN THE RESULT, APPEAL OF THE ASSESSEE ALLOW ED. KOLKATA, THE 25 TH DAY OF JANUARY , 201 8 . SD/ - [ J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER DATED : 25 . 01 .201 8 {SC SPS} 3 I.T.A. NO. 1981/KOL/2017 ASSESSMENT YEAR: 2013 - 14 RAM BILAS AGARWAL COPY OF THE ORDER FORWARDED TO: 1. RAM BILAS AGARWAL 29, R.N. MUKHERJEE ROAD WINDSOR HOUSE ROOM NO. 19 2 ND FLOOR KOLKATA - 7000001 2. INCOME TAX OFFICER WARD - 36(1), KOLKATA AAYAKAR BHAWAN (POORVA) 8 TH FLOOR 110, SHANITPALLY KOLKATA 700 107 3. CIT(A) - 4. CIT - , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES