Gouranga Sundar Mondal, Burdwan V. ITO, Wd-2(1), Burdwan, Burdwan

ITA 1464/KOL/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1853 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 30-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

1 ITA NO. 1464/KOL/2014 GOURANGA SUNDAR MONDAL, AY 2008-09 , A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 1464/KOL/2014 ASSESSMENT YEAR: 2008-09 GOURANGA SUNDAR MONDAL (PAN:AKNPM2314G) VS. INCOME-TAX OFFICER, WD-2(1), BURDWAN. APPELLANT RESPONDENT DATE OF HEARING 18.07.2018 DATE OF PRONOUNCEMENT 07.09.2018 FOR THE APPELLANT SHRI SOUMITRA CHOUDHURY, ADVOCAT E FOR THE RESPONDENT SHRI SALLONG YADEN, ADDL. CIT, S R. DR ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E ORDER OF LD. CIT(A), DURGAPUR DATED 24.03.2014 FOR AY 2008-09. 2. THE MAIN ISSUE OF THE ASSESSEE IS AGAINST THE ACTION OF THE LD. CIT(A) IN CONFIRMING THE ADDITION OF RS.62,27,292/- AS WELL AS ENHANCING THE ADDITION OF RS.2,85,366/- BASED ON THE MISMATCH OF TDS CREDIT CLAIMED BY THE ASSESSEE AND 26AS (TDS DATA BASE OF THE DEPARTMENT). 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA D FILED RETURN DECLARING TOTAL INCOME OF RS.2,32,356/-. DURING THE ASSESSMENT PROCEEDINGS, THE AO ON PERUSAL OF THE TDS CERTIFICATE TOOK NOTE THAT THE ASSESSEE HAS CLAIMED TDS CREDIT OF RS.6,69.942/-. HOWEVER, THE AO NOTED THAT THE INCOME CORRESPONDING TO THE A FORESAID TDS AMOUNT WAS NOT REFLECTED IN THE TOTAL INCOME OF THE ASSESSEE. THEREFORE, AO ADDED RS.62,27,292/- WHICH, ACCORDING TO HIM, HAS BEEN RECEIVED BY THE ASSESSEE FROM HIS PRINCIPAL M/S. DISHANET WIRELESS LTD. 2 ITA NO. 1464/KOL/2014 GOURANGA SUNDAR MONDAL, AY 2008-09 (AIRCEL MOBILE NETWORK) (IN SHORT M/S. DWL) WAS A DDED TO THE TOTAL INCOME OF THE ASSESSEE. AGGRIEVED, THE ASSESSEE PREFERRED AN APP EAL BEFORE THE LD. CIT(A), WHO TOOK NOTE OF THE FACT THAT M/S. DWL VIDE LETTER DATED 2 8.12.2010 HAS CONFIRMED THE PAYMENT OF RS.65,12,658/- TO THE ASSESSEE AND AS PER THE SAID LETTER THE PAYMENTS HAVE BEEN MADE IN TWO TRENCHES I.E. RS.62,27,292/- + RS.2,85,366/- AN D SINCE THE PRINCIPAL M/S. DWL HAS DEDUCTED TDS ON THESE AMOUNTS, HE WAS PLEASED TO EN HANCE THE AMOUNT OF RS.2,85,366/- ALSO TO THE INCOME OF THE ASSESSEE AND CONFIRMED TH E ACTION OF THE AO THUS ADDING RS.62,27,292/- AND RS.2,85,366/-. AGGRIEVED, THE A SSESSEE IS BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT THE ASSESSEE IS A PROPRIETO R OF DISHA COMMUNICATIONS AND WAS A DISTRIBUTOR UNDER M/S. DWL (AIRCEL) MOBILE NETWORKI NG FOR THE AREAS BURDWAN TOWN, BUD BUD, KALNA, KATWA AND MEMARI. THE AIRCEL ALLOWED I NCENTIVE TO RETAIL SHOP FOR ACTIVATION CHARGES THROUGH DISTRIBUTORS, THE ASSESSEE DISHA CO MMUNICATIONS. FROM A PERUSAL OF THE P&L ACCOUNT FILED BEFORE US, WE FIND THAT THE TOTAL TURNOVER OF THE ASSESSEE WAS TO THE TUNE OF RS.2,24,22,061/- AND THE COMMISSION RECEIVED FRO M AIRCEL IS SHOWN AS RS.3,17,699/-. ACCORDING TO THE ASSESSEE, THE AIRCEL HAS PAID RETA IL INCENTIVE COMMISSION OF RS.65,12,658/- DIRECTLY TO THE RETAILERS IN THE FOR M OF RECHARGING COMMISSION, ACTIVATION CHARGES ON BEHALF OF THE ASSESSEE. HOWEVER, THE TD S CREDIT WAS REFLECTED ON ASSESSEES ACCOUNT AND, THEREFORE, THE CONFUSION HAS HAPPENED, THOUGH THE FACT IS THAT THE ASSESSEE HAS BEEN PAID AS COMMISSION ONLY RS.3,17,699/-. ACCORD ING TO THE ASSESSEE, THE AO ISSUED LETTER DATED 23.12.2010 TO THE PRINCIPAL OFFICER OF AIRCEL AND SINCE THE AO DID NOT RECEIVE ANY REPLY FROM THE AIRCEL MADE THE ADDITION OF RS.6 2,27,292/- AND CONCLUDED THE ASSESSMENT VIDE ORDER DATED 31.12.2010. ON APPEAL, THE LD. CIT(A) TAKING NOTE OF THE LETTER DATE 28.12.2010 OF AIRCEL WAS PLEASED TO MAKE AN EN HANCEMENT OF RS.2,85,366/- AS WELL AS CONFIRMED THE ACTION OF THE AO IN MAKING ADDITION O F RS.62,27,292/-. THE LD. AR DREW OUR ATTENTION TO THE LETTER OF THE AIRCEL DATED 08. 02.2012 WHEREIN THE AIRCEL HAS CLARIFIED THE FACT THAT IT HAD PAID COMMISSION OF ONLY RS.3,1 7,699/- TO THE ASSESSEE AND RS.65,12,658/- WAS REMITTED TO THE RETAILERS IN THE FORM OF RECHARGE COMMISSION, ACTIVATION CHARGES BY AIRCEL ON BEHALF OF THE ASSESSEE. THAT LETTER DATED 08.02.2012 OF THE AIRCEL TO THE ASSESSEE EXPLAINING THE FACTS IS REPRODUCED BEL OW: 3 ITA NO. 1464/KOL/2014 GOURANGA SUNDAR MONDAL, AY 2008-09 4 ITA NO. 1464/KOL/2014 GOURANGA SUNDAR MONDAL, AY 2008-09 5. WE HAVE CROSSED CHECKED THE FIGURES AND FIND IT TO TALLY WITH THE FIGURES OF P&L ACCOUNT AND OTHER LETTERS EARLIER ON RECORD. FROM A PERUSAL OF THE P&L ACCOUNT, WE NOTE THAT THE ASSESSEE HAS SHOWN THE COMMISSION RECEIVED FROM AIRCEL TO THE TUNE OF RS.3,17,699/- WHICH IS THE SAME FIGURE AS REFLECTED IN THE LETTER DATED 08.02.2012, WHICH IS STATED IN THE LETTER WRITTEN BY AIRCEL PURSUANT TO THE NOTICE OF AO. WE NOTE FROM PAGE 3 PARA 5 OF THE IMPUGNED ORDER OF THE LD. CIT(A) WHER EIN THE LD. CIT(A) HAS REFERRED TO THE LETTER DATED 28.12.2010 FROM M/S. DWL (AIRCEL) WHER EIN IT HAS CONFIRMED THE PAYMENT OF RS.65,12,658/- WHICH ALSO TALLIES WITH THE FIGURE O F RS.65,12,658/- AS REFERRED TO IN LETTER DATED 08.02.2012 WHICH HAS BEEN REPRODUCED ABOVE. TAKING INTO CONSIDERATION THE AFORESAID FACTS AND THE AFORESAID LETTER, THE COMMI SSION ATTRIBUTABLE TO THE ASSESSEE AS HIS INCOME IS ONLY RS.3,17,699/- AND , THEREFORE, ASSES SEE CANNOT BE SADDLED WITH THE ADDITION OF AMOUNT WHICH HAS NOT BEEN DISBURSED TO THE ASSES SEE BY AIRCEL. SO, WE ARE INCLINED TO ALLOW THE APPEAL OF THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED ORDER IS PRONOUNCED IN THE OPEN COURT ON 7TH SEPT EMBER, 2018 SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 7TH SEPTEMBER, 2018 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI GOURANGA SUNDAR MONDAL, PROP. M /S. DISA COMMUNICATIONS & DISA PRINTERS, BARO NILPUR, P.O. S RIPALLY, DIST. BURDWAN-713102. 2 RESPONDENT ITO, WARD-2(1), BURDWAN 3. 4. CIT(A), DURGAPUR. (SENT THROUGH E-MAIL) CIT , DURGAPUR. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, SR. PVT. SECRETARY