Shyam Sundar Sadhukhan, Howrah V. ITO, WD-46(4), KOLKATA, Kolkata

ITA 1284/KOL/2014

• Counselvise Citation: 128423514 RSA 2014
• Duration Of Justice: 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 05-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Assessee Lawyers: A K BANERJEE

Judgement Text

I.T.A. NO . 1 284 / KOL ./201 4 ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI GEORGE MATHAN , JUDICIAL MEMBER I.T.A. NO. 1 284 / KOL / 20 1 4 ASSESSMENT YEAR : 200 8 - 20 0 9 SHYAM SUNDAR SADHUKHAN, ................................ ., .. .. .APP ELL ANT UDAYNARAYANP UR, HOWRAH - 711 226 [PAN : A RIPS 9849 L ] - VS. - INCOME TAX OFFICER,............................. , ....... ... . RESPONDENT WARD - 46 (4), KOLKATA, 3, GOVERNMENT PLACE (WEST), KOLKATA - 700 0 01 APPEARANCES BY: SHRI A.K. BANERJEE, ADVOCATE, FOR THE ASSESSE E SMT. RANU BISWAS , J CIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : NOVEMBER 2 6 , 2 01 4 DATE OF PRONOUNCING THE ORDER : NOVEMBER 26 , 201 4 O R D E R PER GEORGE MATHAN : THIS IS AN APPEAL FILED BY THE ASSESSE E AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) - XXX , KOLKATA IN APPEAL NO. 287 / CIT(A) - XXX / WD - 46(4)/ 20 10 - 1 DATED 1 0 . 10 .201 3 FOR THE ASSESSMENT YEAR 200 8 - 0 9 . 2 . SHRI A.K. BANERJEE, ADVOCATE, REPRESENTED ON BEHALF OF THE ASSESSEE AND SMT. RANU BISWAS, JCIT, SR. D. R. REPRESENTED ON BEHALF OF THE REVENUE. 3. AT THE TIME OF HEARING, IT WAS SUBMITTED BY THE LD. A .R. THAT IN THE COURSE OF ASSESSMENT, THE ASSESSING OFFICER HAD DISALLOWED RS.1,44,000/ - REPRESENTING THE COMMISSION PAID BY THE ASSESSEE TO THE SALES PERSON NEL. IT WAS THUS THE SUBMISSION THAT THE ASSESSEE IS DOING THE BUSINESS OF PURCHASE AND SALE OF MEDICINES. IT WAS THE SUBMISSION THAT THE ASSESSEE I.T.A. NO . 1 284 / KOL ./201 4 ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 2 OF 3 HAD NOT PAID ANY SALARY TO THE SALESMEN. HOWEVER, COMMISSION WAS PAID. LD. A.R. DREW ATTENTION TO PAGES 1 TO 5 OF THE PAPER BOOK, WHICH IS COPY OF THE RECEIPT S / CONFIRMATION FROM THE SALESMEN FOR HAVING RECEIVED OF COMMISSION. IT WAS THE SUBMISSION THAT ON FIRST APPEAL, LD. CIT(APPEALS) REDUCED THE DISALLOWANCE BY 50%. IT WAS THE SUBMISSION THAT THE ASSESSEE MAY BE GRANTED FULL RELIEF. 4. IN REPLY, LD. SR. D.R. VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER AND LD. CIT(APPEALS). 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERUSAL OF THE ORDER OF THE LD. CIT(APPEALS) CLEARLY SHOWS THAT LD. CIT(APPEALS) HAD TAKEN INTO CONSIDERATION THE FACT THAT THE ASSESSEE S BUSINESS IS IN A REMOTE PLACE AND THAT HE HAD ENGAGED SALESMEN THAT PAYMENT OF COMMISSION FOR SALE OF MEDICINES. A PERUSAL OF THE PROFIT & LOSS ACCOUNT OF THE ASSESSEE ALSO SHOWS THAT THE ASSESSEE HAD NOT PAID ANY SALARY TO ANY OF THE EMPLOYEES BUT HAS ONLY PAID COMMISSION. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE THE LD. CIT(APPEALS) HAS ACCEPTED THE FACT OF THE COMMISSION PAYMENT BUT HAS RESTRICTED THE ADDITION TO 50%. ONCE THE FACTS ARE ACCEPTED AND THE REASONS ARE ACCEPTED THEN PARTIAL CONFIRMATION OF THE ADDITION IS NOT PERMISSIBLE. IN THESE CIRCUMSTANCES, CONSIDERING THE FACT THAT THE ASSESSEE HAS NOT PAID ANY SALARY BUT HAS ONLY PAID COMMISSION AND THE ASSESSEE HAS ALSO PLACED EVIDENC E OF THE COMMISSION PAYMENT REPRESENTING THE CONFIRMATION FROM THE SALESMEN, T HE ADDITION AS CONFIRMED BY THE LD. CIT(APPEALS) STANDS DELETED. 6 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH NOV EM BER , 2014. SD/ - GEORGE MATHAN ( JUDICIAL MEMBER) KOLKATA, THE 26 TH D AY OF NOVE MBER , 201 4 I.T.A. NO . 1 284 / KOL ./201 4 ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 3 OF 3 COPIES TO : (1) SHYAM SUNDAR SADHUKHAN, UDAYNARAYANPUR, HOWRAH - 711 226 (2) INCOME TAX OFFICER, WARD - 4 6(4), KOLKATA, 3, GOVERNMENT PLACE (WEST), KOLKATA - 700 001 (3) COMMISSIONER OF INCOME - TAX (APPEALS) (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 .