D.C.I.T Cir - 7,kolkata, Kolkata V. M/s Jalan Infosystem Pvt Ltd, Kolkata

ITA 1376/KOL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4507 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2016
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 09-08-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 20-05-2013
• Court: TRIBUNAL
• Department Lawyers: PRADIP MONDAL
• Assessee Lawyers: SUBASH AGARWAL LD
• Keywords: Additional evidence; Corroborative evidences

Judgement Text

ITA NOS.1376 & 1377/KOL/13 M/S. JALAN INFOSYSTEM P.LTD 1 IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBE R I.T.A. NO. 1376/KOL/ 2013 A.Y: 2003-04 I.T.A. NO. 1377/KOL/ 2013 A.Y: 2004-05 DCIT, CIR-3(1), KOLKATA VS. M/S. JALAN INFOSYSTE M PVT. LTD PAN: AABCJ 2167-P (APPELLANT) (RESPONDENT) APPEARANCES BY: SHRI PRADIP MONDAL, JCIT, SR. D.R FOR THE REVENU E SHRI SUBASH AGARWAL, ADVOCATE, LD.AR FOR THE ASS ESSEE DATE OF HEARING : 09-08-2016 DATE OF PRONOUNCEMENT : 21-09-2016 O R D E R PER SHRI S.S. VISWANETHRA RAVI :- BOTH THE APPEALS FILED BY THE REVENUE ARE DIRECTED AGAINST THE SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX(APPEALS)-VIII, KOLKATA DATED 06-02-2013 AND 20- 02-2013 FOR THE ASSESSMENT YEARS 2003-04 AND 2004-05 RESPEC TIVELY. ITA NO. 1376/KOL/2013 AY 2003-04 OF THE REVENUE 2. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLO WING GROUND:- 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LD. CIT(APPEALS)-VIII, KOLKATA, HAS ERRED IN LAW AS WEL L AS IN FACTS IN ITA NOS.1376 & 1377/KOL/13 M/S. JALAN INFOSYSTEM P.LTD 2 DELETING THE PAYMENT OF RS.55,92,150 AS SALES COMMI SSION TO M/S. JAWALA STEEL PVT. LTD. 3. THE ONLY ISSUE TO BE ADJUDICATED IN THIS APP EAL IS AS TO WHETHER THE CIT-A JUSTIFIED IN DELETING AN AMOUNT OF RS.55,92, 150/- PAID TOWARDS SALES COMMISSION IN THE FACTS AND CIRCUMSTANCES OF THE CA SE. 4. AT THE OUTSET, WE OBSERVED THAT THE ASSESSEE FIL ED AN ADDITIONAL EVIDENCE BEFORE THE CIT-A IN SUPPORT OF ITS CLAIM. THE CIT-A SOUGHT REMAND REPORT FROM THE AO. THE AO EXAMINED SUCH ADDITIONAL DOCUMENTS AND MADE NO ADVERSE INFERENCE AGAINST SUCH DOCUMENTS. THE RE LEVANT PORTION OF REMAND REPORT IS REPRODUCED HEREIN BELOW:- SINCE THE APPELLANT FURNISHED SOME ADDITIONAL EVIDE NCES IN SUPPORT OF THIS ISSUE OF APPEAL WHICH WERE NOT PRODUCED BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS, THOSE WERE SENT TO THE AO F OR HIS VERIFICATION AND COMMENTS. IN RESPONSE OF THE SAME, THE AO HAS SENT A REMAND REPORT. THE RELEVANT PORTION OF THE REMAND REPORT IS REPRODUCED BELOW:- 'ON RECEIVING YOUR FIRST LETTER MY PREDECESSOR-IN-O FFICE FIXED THE CASE FOR HEARING AND SUBSEQUENTLY BY ME ON MY TAKING OVER TH IS CHARGE. IN RESPONSE SHRI G.L. SARAOGI, ADV. A/R OF THE ASSESSEE COMPANY APPEARED FROM TIME TO TIME AND PRODUCED EVIDENCES IN SUPPORT OF HIS CLAIM . THE EXPLANATIONS AND DOCUMENTARY EVIDENCES SO PRODUCED WERE EXAMINED. ON EXAMINATION OF THE SAME IT WAS OBSERVED THAT THE ASSESSEE COMPANY HAS FURNISHED SOME FRESH EVIDENCES BEFORE YOUR GOODSELF WHICH COULD NOT BE PRODUCED BEFORE THE A.O. BEFORE PASSING ORDER U/S14 3(3) DATED 14.12.2007. SINCE, THERE WAS NO SPECIFIC DIRECTION U/S 250(4) I N THE INSTANT CASE, THEREFORE, THE INQUIRES ARE RESTRICTED ONLY TO FRES H EVIDENCE THAT WERE PRODUCED BEFORE YOUR GOODSELF AND NOT BEFORE THE A. O. FOLLOWINGS ARE THE EVIDENCE WHICH WERE EXAMINED. A.Y.2003-04 (I) DETAILS OF STATEMENTS OF BOOKING, PARTYWISE AND MONTHWISE, THROUGH M/SJAWALA STEELS (P) LTD. (II) DEED OF AGREEMENTS WITH M/S. JAWALA STEELS (P) LTD. (III) PROOF OF SPEED POST. (IV) COPY OF LETTER SENT TO M/S. JAWALA STEELS (P) LTD. (V) COPY OF LETTER TO THE ADDL CIT. RANGE-3/KOL, RE QUESTING TO FURNISH CERTAIN DOCUMENTS. ITA NOS.1376 & 1377/KOL/13 M/S. JALAN INFOSYSTEM P.LTD 3 (VI) COPY OF LEDGER ACCOUNT OF M/S. JAWALA STEELS ( P) LTD. IN THE BOOKS OF THE ASSESSEE. (VII) BANK STATEMENTS AS PROOF OF PAYMENTS OF COMMI SSION (VIII) CONFIRMATION FROM M/S. JAWALA STEELS (P) LTD . DURING THE A.Y. 2003-04 THE ASSESSEE COMPANY CLAIM ED TO HAVE PAID COMMISSION OF RS.55,92,150 TO M/S. JAWALA STEELS(P) LTD TOWARDS COLLECTING ORDER FROM VARIOUS CUSTOMERS ON BEHALF OF THE ASSES SEE COMPANY, RESULTING SALE OF 74562 PIECES OF NOKIA SETS M/S. JAWALA STEE LS(P) LTD HAS ISSUED A DEBIT NOTE FOR THE SAID AGREEMENT, LEDGER COPY SHOW ING DATES OF PAYMENTS THROUGH BANK SUPPORTED BY BANK STATEMENTS, MONTH AN D PARTY WISE BOOKING OF MOBILE SETS WERE EXAMINED AND NO ADVERSE INTERFE RENCE COULD BE MADE ON THESE DOCUMENTS.' 5. THE CIT-A EXAMINED THE REMAND REPORT, WHERE THE AO VERIFIED THE AGREEMENT, LEDGER COPY SHOWING DATES OF PAYMENT S THROUGH BANK SUPPORTED BY BANK STATEMENTS, MONTH AND PARTY WISE BOOKING OF MOBILE SETS M/S. JAWALA STEELS(P) LTD AND MADE NO A DVERSE REMARKS. ACCORDINGLY DELETED THE ADDITION MADE ON ACCOUNT OF SALES COMMISSION PAID AT RS. 55,92,150/-. THE RELEVANT PO RTION OF WHICH IS REPRODUCED HEREIN BELOW: AFTER CAREFULLY CONSIDERING THE SUBMISSION ALONG WI TH THE SUPPORTING EVIDENCES FURNISHED & CASE LAWS RELIED U PON ON BEHALF OF THE APPELLANT, PERUSING THE FACTS OF THE CASE INCLUDING THE IMPUGNED ASSESSMENT ORDER, CONTENTS OF THE REMAND REPORT AND OTHER MATERIALS BROUGHT ON RECORD, IT IS HELD THAT THE ACTION OF TH E AO IN MAKING THE DISALLOWANCE OF THE CLAIM OF SALES COMMISSION PAID AT RS. 55,92,150 TO M/S. JAWALA STEELST (P) LTD BY THE APPELLANT IS NOT JUSTIFIED AND HENCE THE SAME CANNOT BE SUSTAINED. THUS, THE ADDITION SO MAD E BY THE AO IS HEREBY DIRECTED TO BE DELETED AND THIS GROUND OF AP PEAL IS ALLOWED. 6. WE FIND THAT UNDER REMAND PROCEEDINGS THE AO EXA MINED THE DOCUMENTS AT S.L NO. (I) TO (VIII) MENTIONED THEREI N AT PAGE 7 OF THE ORDER OF CIT-A. ADMITTEDLY, THE SAID DOCUMENTS WERE NOT B EFORE THE AO AT THE TIME OF HEARING. WE FIND THAT THE AO DID NOT MAKE A NY ADVERSE REMARK ON SUCH DOCUMENTS AND IN VIEW OF SAME, WE DISMISS THE SOLE GROUND RAISED BY THE REVENUE IN ITA NO. 1376/KOL/2013 FOR THE A.Y 2003-04. ITA NOS.1376 & 1377/KOL/13 M/S. JALAN INFOSYSTEM P.LTD 4 7. THE APPEAL OF THE REVENUE IN ITA NO. 1376/KOL/20 13 IS DISMISSED. ITA NO.1377/KOL/2013 A.Y 2004-05 OF THE REVENUE) 8. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLO WING GROUND:- 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LD. CIT(APPEALS)-VIII, KOLKATA, HAS ERRED IN LAW AS WEL L AS IN FACTS IN DELETING THE PAYMENT OF RS.63,98,815 AS SALES COMMI SSION TO M/S. JAWALA STEEL PVT. LTD., M/S. GOLDAYAN TRADING PVT. LTD AND SHRI RAJESH KUMAR JAIN 9. THE ONLY ISSUE TO BE ADJUDICATED IS AS TO WH ETHER THE CIT-A JUSTIFIED IN DELETING AN AMOUNT OF RS.63,98,815/- PAID TOWARDS SALES COMMISSION IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 10. AT THE OUTSET, WE OBSERVED THAT THE ASSESSEE FI LED ADDITIONAL EVIDENCE BEFORE THE CIT-A IN SUPPORT OF ITS CLAIM. THE AO EX AMINED SUCH ADDITIONAL DOCUMENTS AND MADE NO ADVERSE INFERENCE AGAINST SUC H DOCUMENTS. THE RELEVANT PORTION OF REMAND REPORT IS REPRODUCED HER EIN BELOW:- SINCE THE APPELLANT FURNISHED SOME ADDITIONAL EVIDE NCES IN SUPPORT OF THIS ISSUE OF APPEAL WHICH WERE NOT PRODUCED BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS, THOSE WERE SENT TO THE AO F OR HIS VERIFICATION AND COMMENTS. IN RESPONSE OF THE SAME, THE AO HAS SENT A REMAND REPORT. THE RELEVANT PORTION OF THE REMAND REPORT IS REPRODUCED BELOW:- 'ON RECEIVING YOUR FIRST LETTER MY PREDECESSOR-IN-O FFICE FIXED THE CASE FOR HEARING AND SUBSEQUENTLY BY ME ON MY TAKING OVER TH IS CHARGE. IN RESPONSE SHRI G.L. SARAOGI, ADV. A/R OF THE ASSESSEE COMPANY APPEARED FROM TIME TO TIME AND PRODUCED EVIDENCES IN SUPPORT OF HIS CLAIM . THE EXPLANATIONS AND DOCUMENTARY EVIDENCES SO PRODUCED WERE EXAMINED. ON EXAMINATION OF THE SAME IT WAS OBSERVED THAT THE ASSESSEE COMPANY HAS FURNISHED SOME FRESH EVIDENCES BEFORE YOUR GOODSELF WHICH COULD NOT BE PRODUCED BEFORE THE A.O. BEFORE PASSING ORDER U/S14 3(3) DATED 14.12.2007. SINCE, THERE WAS NO SPECIFIC DIRECTION U/S 250(4) I N THE INSTANT CASE, THEREFORE, THE INQUIRES ARE RESTRICTED ONLY TO FRES H EVIDENCE THAT WERE PRODUCED BEFORE YOUR GOODSELF AND NOT BEFORE THE A. O. DURING A.Y : 2004-05, THE ASSESSEE COMPANY PAID COM MISSION TO THE FOLLOWING PARTIES:- 1) M/S. JAWALA STREETS (P) LTD RS. 51,15,450 ITA NOS.1376 & 1377/KOL/13 M/S. JALAN INFOSYSTEM P.LTD 5 2) M/S. GOLDAYAN TRADING (P) LTD RS.12,04,165 3) SRI RAJESH KUMAR JAIN RS. 79,200 ------------------- RS.63,98,815 ------------------ COPIES OF BILLS, COPIES OF AGREEMENT/APPOINTMENT LE TTER, LEDGER COPIES, DETAILS OF MONTH WISE BOOKS OF MOBILE SETS WERE PRO DUCED FOR ALL THE THREE PARTIES AND THEY WERE EXAMINED AND NO ADVERSE INTER FERENCE COULD BE MADE ON THESE DOCUMENTS. TAX HAS BEEN DEDUCTED ON THE CO MMISSION SO PAID BY THE ASSESSEE COMPANY. 11. THE CIT-A EXAMINED THE REMAND REPORT, WHERE THE AO VERIFIED THE AGREEMENT/APPOINTMENT LETTER, LEDGER COPY, DETA ILS OF MONTH WISE BOOKS OF MOBILE SETS OF ALL THE THREE PARTIES AND M ADE NO ADVERSE REMARKS. ACCORDINGLY DELETED THE ADDITION MADE ON A CCOUNT OF SALES COMMISSION PAID AT RS.63,98,815. THE RELEVANT PORTI ON OF WHICH IS REPRODUCED HEREIN BELOW: AFTER CAREFULLY CONSIDERING THE SUBMISSION ALONG WI TH THE SUPPORTING EVIDENCES FURNISHED & CASE LAWS RELIED UPON ON BEHA LF OF THE APPELLANT, PERUSING THE FACTS OF THE CASE INCLUDING THE IMPUGN ED ASSESSMENT ORDER, CONTENTS OF THE REMAND REPORT & REJOINDER TO REMAND REPORT FURNISHED BY THE APPELLANT AND OTHER MATERIALS BROUGHT ON RECORD , IT IS HELD THAT THE ACTION OF THE AO IN MAKING THE DISALLOWANCE OF THE CLAIM OF SALES COMMISSION AMOUNTING TO RS.63,98,815/- PAID TO M/S. JAWALA ST EELS(P) LTD, M/S. GOLDAYAN TRADING (P) LTD AND SRI RAJESH KUMAR JAIN BY THE APPELLANT IS NOT JUSTIFIED AND HENCE THE SAME CANNOT BE SUSTAINED. T HUS, THE ADDITION SO MADE BY THE AO IS HEREBY DIRECTED TO BE DELETED AND THIS GROUND OF APPEAL IS ALLOWED. 12. WE FIND THAT UNDER REMAND PROCEEDINGS THE AO E XAMINED THE DOCUMENTS AVAILABLE/RECORDED AT PAGE 7 OF THE ORDE R OF CIT-A. ADMITTEDLY, THE SAID DOCUMENTS WERE NOT BEFORE THE AO AT THE TIME OF HEARING. WE FIND THAT THE AO DID NOT MAKE ANY ADVER SE REMARK ON SUCH DOCUMENTS AND IN VIEW OF SAME, WE DISMISS THE SOLE GROUND RAISED BY THE REVENUE IN ITA NO. 1377/KOL/2013 FOR THE A.Y 2004-0 5. ITA NOS.1376 & 1377/KOL/13 M/S. JALAN INFOSYSTEM P.LTD 6 13. IN THE RESULT, BOTH THE APPEALS FILED BY THE RE VENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST SEPTEMBER,2016. SD/- SD/- WASEEM AHMED S.S.VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21/ 09/2016 1. THE APPELLANT/DEPARTMEN: THE DCIT, CIRCLE-7, KOLKA TA P-7 CHOWRINGHEE SQUARE, 5 TH FLOOR, ROOM NO.15, KOLKATA-69. 2 . THE RESPONDENT/ASSESSEE: M/S. JALAN INFOSYSTEM PVT . LTD 26 DIMPLE COURT, SHAKESPEARE SARANI, KOLKATA-17. 3. CIT 4. CIT(A) 5. THE DEPARTMENTAL REPRESENTATIVE 6. GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA ** PRADIP SPS COPY OF THE ORDER FORWARDED TO:-