Savitri Baslingappa sanikop, Kolhapur V. Deputy Commissioner of Income-tax, Circle, Ichalkaranji

ITA 1668/PUN/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6044 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 03-07-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VISHAL A MAKAWANE
• Assessee Lawyers: N O N E
• Keywords: Assessment record
• Section: 143(3); 142(1); 133(6); 143(2); 22; 131; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, J UDICIAL MEMBER . / ITA NO.1 66 8 /PUN/201 7 / ASSESSMENT YEAR : 2010 - 11 SAVITRI BASLINGAPPA SANIKOP, 91, NEELAM JAYPRAKASH HOUSING SOCIETY, JAYSINGPUR, TAL. - SHIROL, DIST. - KOLHAPUR PAN : AL ZPS7366M ....... / APPELLANT / V/S. DY. COMMISSIONER OF INCOME TAX, ICHALKARANJI / RESPONDENT ASSESSEE BY : N O N E REVENUE BY : SHRI VISHAL A. MAKAWANE / DATE OF HEARING : 22 - 09 - 2020 / DATE OF PRONOUNCEMENT : 28 - 0 9 - 2020 / ORDER PER S.S. VISWANETHRA RAVI, JM : THIS APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 24 - 04 - 2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 2, KOLHAPUR [CIT(A)] FOR ASSESSMENT YEAR 2010 - 11 . 2. WE FIND NO REPRESENTATION ON BEHALF OF THE ASSESSEE NOR ANY APPLICATION FILED SEEKING ADJOURNMENT. THUS, THE ASSESSEE CALLED ABSENT 2 ITA NO . 1668/PUN/2017, A.Y. 2010 - 11 AND SET EX - PARTE. THEREFORE WE PROCEED TO DISPOSE OF THE CASE BY H EARING THE LD. DR AND PERUSING THE MATERIAL AVAILABLE ON RECORD. 3. THE ASSESSEE RAISED TWO GROUNDS AMONGST WHICH THE ONLY ISSUE EMANATES FOR OUR CONSIDERATION IS AS TO WHETHER THE CIT(A) JUSTIFIED IN CONFIRMING THE ADDITION TO AN EXTENT OF RS. 7,71,115/ - IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE FACTS RELATING TO THE ISSUE ON HAND ARE THAT THE ASSESSEE IS AN INDIVIDUAL FILED RETURN OF INCOME DECLARING A TOTAL INCOME OF RS. 1,77,79,030/ - . UNDER SCRUTINY NOTICES U/S. 143(2) AND 142(1) OF THE ACT W ERE ISSUED. IN RESPONSE TO WHICH AUTHORIZED REPRESENTATIVE ON BEHALF OF THE ASSESSEE APPEARED BEFORE THE AO AND PRODUCED REQUIRED DETAILS AS SOUGHT BY THE AO. THE AO FOUND THAT THE ASSESSEE DEBITED SALES COMMISSION OF RS. 23,88,515/ - TOWARDS 7 P ARTIES. T O VERIFY THE GENUINENESS OF SALES COMMISSION, THE AO ASKED THE ASSESSEE TO FURNISH THE DETAILS OF SUCH PERSONS, AMOUNT OF COMMISSION PAID. THE ASSESSEE HAS GIVEN NAMES OF AGENT AND AMOUNT OF SALES COMMISSION PAID. TO VERIFY THE SAME THE AO ISSUED NOTICE U/S. 133(6) ALONG WITH SUMMONS U/S 131 OF THE ACT. ACCORDING TO AO SOME PARTIES FILED INFORMATION AND DID NOT APPEAR BEFORE THE AO IN THE ASSESSMENT PROCEEDINGS ON GIVEN DATE. THE AO PROCEEDED TO ADD ENTIRE AMOUNT IN THE TOTAL INCOME OF ASSESSEE FOR WANT OF EVIDENCE VIDE ORDER DATED 24 - 12 - 2012 U/S. 143(3) OF THE ACT. THE CIT(A) RESTRICTED THE ADDITION TO AN EXTENT OF RS.7,71,115/ - . AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE IS BEFORE US. 5. HEARD THE LD. DR, SHRI VISHAL A. MAKAWANE AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. THE CONTENTION OF LD. DR IS THAT NO CONFIRMATIONS OF 3 ITA NO . 1668/PUN/2017, A.Y. 2010 - 11 FEW PARTIES ARE FILED BEFORE THE AO NOR THE ASSESSEE PRODUCED ALL THE PARTIES IN THE ASSESSMENT PROCEEDINGS. THERE WAS NO EVIDENCE BEFORE THE AO TO SHOW THE GENUINENESS OF PAYMENT OF COMMISSION PAID TO THE SAID 5 PARTIES. THE CIT(A) EXAMINED THE RECORD OF ASSESSMENT PROCEEDINGS AND FOUND THE CONFIRMATIONS TO AN EXTENT OF RS.6,17,400/ - AND DELETED THE SAME. WITH REGARD TO PARUL R. DESAI AND SONAL DINKAR NO EVIDENCE WHATS OEVER SUBSTANTIATING THE PAYMENT OF COMMISSION WERE FILED BEFORE THE AO NOR BEFORE THE CIT(A) AND EVEN BEFORE THIS TRIBUNAL. HE SUBMITS THAT THE CIT(A) RIGHTLY CONFIRMED THE ADDITIONS MADE BY THE AO AGAINST THE PARUL R. DESAI AND SONAL DINKAR AND PRAYED TO UPHOLD THE SAME. 6. WE NOTE THAT IN THE ASSESSMENT PROCEEDINGS PARTY BY NAME PARUL R. DESAI SUBMIT TED LEDGER ACCOUNT AND THE AO EXAMINED THE SAME. WE NOTE THAT SHE IS ASSESSED TO TAX AND MARKETING AGENT FOR THE PRODUCT OF ASSESSEE. SHE STATED THERE WAS FIXED COMMISSION RATE AND IT VARIES FROM 5 TO 25%. WE FIND THAT THE ASSESSEE STATED THAT SHE RAISE D BILLS TO AN EXTENT OF RS.1,64,300/ - TOWARDS M/S. R.B. ENTERPRISES ON THE SALE OF PRODUCT OF IMCO ALLOYS PVT. LTD. THE SAID STATEMENT IS REFLECTED IN THE ASSESSMENT ORDER AT PAGE NO. 7. WE NOTE THAT THE PARUL R. DESAI HAS GIVEN EVERY DETAILS BEFORE THE AO AND THE AO EXAMINED THE SAME, IN OUR OPINION THE ADDITION TO AN EXTENT OF RS.7,71,115/ - AGAINST PARUL R. DESAI IS SUBSTANTIATED AND THEREFORE THE ADDITION OF RS.7,71,115/ - IS DELETED. 7. WITH REGARD TO SONAL DINKAR KHAPE WE NOTE THAT THE SAID PERSON DID NOT APPEAR BEFORE THE AO NOR FILED ANY CONFIRMATION AND DETAILS ABOUT COMMISSION RECEIVED BY HIM FROM THE ASSESSEE. THE ASSESSEE HAS ALSO NOT FILED CONFIRMATION FROM THE PARTY NOR ANY DETA ILS REGARDING THE NATURE OF WORK AND COMMISSION PAID. WE NOTE THAT THERE WAS NO RESPONSE TO NOTICES 4 ITA NO . 1668/PUN/2017, A.Y. 2010 - 11 U/S. 133(6) AND SUMMONS U/S. 131 OF THE ACT BY THE SONAL DINKAR KHAPE. THE CIT(A) EXAMINED THE ASSESSMENT RECORD AND FOUND NO DETAILS FILED IN RESPECT OF SONAL DINKAR KHAPE BEFORE AO NOR IN THE FIRST APPELLATE PROCEEDINGS. WE FIND THERE WAS NO EVIDENCE BEFORE THIS TRIBUNAL SUBSTANTIATING THE PAYMENT OF COMMISSION PAID TO SONAL DINKAR KHAPE TO AN EXTENT OF RS.10,00,000/ - . IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE SUBSTANTIATING THE COMMISSION PAID AND THE ADDITION MADE IN RESPECT OF SONAL DINKAR KHAPE IS CONFIRMED AND THE ORDER OF CIT(A) IS JUSTIFIED. THUS, THE GROUNDS RAISED BY THE ASSESSEE ARE PARTLY ALLOWED. 8. IN THE RES ULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH SEPTEMBER, 2020 . SD/ - SD/ - ( R.S. SYAL ) ( S.S. VISWANETHRA RAVI ) VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 28 TH SEPTEMBER, 2020. RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A) - 2, KOLHAPUR 4. THE PR. CIT - 2, KOLHAPUR 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. // // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY , , / ITAT, PUNE