Kemit Chemicals Pvt. Ltd., Ahmedabad V. ACIT, Circle-2(1)(2), Ahmedabad

ITA 1690/AHD/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0597 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 24-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P. JAIN
• Keywords: Principle of natural justice; Corroborative evidences
• Section: 13; 20

Judgement Text

, . . , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./I.T.A. NO. 1690/AHD/2018 ( / ASSESSMENT YEAR : 2015-16) KEMIT CHEMICALS PRIVATE LIMITED C/1-120, GIDC VATWA, PHASE-I VATWA AHMEDABAD-382 445 / VS. THE ACIT WARD-2(1)(1) AHMEDABAD ./ ./PAN/GIR NO. : AAACK 5879 N ( /APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI S.N. DIVATIA, AR / RESPONDENT BY : SHRI LALIT P. JAIN, SR.DR /DATE OF HEARING 11/03/2020 / DATE OF PRONOUNCEMENT 13 / 0 3 /20 20 / O R D E R PER SHRI SANDEEP GOSAIN, JUDICIAL MEMBER : THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTAN CE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TA X (APPEALS)2, AHMEDABAD [CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)-2 /10165/ACIT, CIR.2(1)(2)/2017-18 DATED 28/06/2018 ARISING IN THE ASSESSMENT ORDER PASSED UNDER S.143(3) OF THE INCOME TAX ACT, 1961( HEREINAFTER REFERRED TO AS 'THE ACT') DATED 13/09/2017 RELEVANT TO ASSESSME NT YEAR (AY) 2015-16. ITA NO.1690/AHD/2018 KEMIT CHEMICALS PVT.LTD. VS. ACIT ASST.YEAR 2015-16 - 2 - 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1.1 THE ORDER PASSED U/S.250 ON 28-6-2018 FO R A.Y.2015-16 BY CIT(A)-2, ABAD, CONFIRMING THE DISALLOWANCE OF 37,59,821/- IN RESP ECT OF FOREIGN AGENTS COMMISSION MADE BY AO IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 1.2 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LA W AND OR ON FACTS IN NOT CONSIDERING FULLY AND PROPERLY THE EXPLANATIONS FURNISHED AND T HE EVIDENCE PRODUCED BY THE APPELLANT. THE OBSERVATIONS MADE AND CONCLUSION REA CHED BY CIT(A) WITH REGARD TO THE IMPUGNED DISALLOWANCE ARE NOT ADMITTED IN SO FA R AS THE SAME ARE CONTRARY TO THE EVIDENCE PRODUCED. 2.1 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LA W AND OR ON FACTS IN CONFIRMING THE DISALLOWANCE OF FOREIGN AGENTS COMMISSION OF 37, 59,821/-. 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF TH E CASE AS WELL AS IN LAW, THE ID. CIT(A) HAS GRIEVOUSLY ERRED IN NOT ALLOWING THE FOR EIGN AGENTS COMMISSION OF 37,59,821/-. 3.1 THE LD. CIT(A) HAS COMPLETELY IGNORED THE EVIDENCE PRODUCED BEFORE HIM WITH REGARD TO THE IMPUGNED COMMISSION PAYMENTS AND GROSSLY ERRED IN HOLDING THAT THE APPELLANT HAD FAILED TO REBUT THE CONTENTIONS O F AO BY FILING THE SUPPORTING EVIDENCES. THE APPELLANT HAD FURNISHED FURTHER EVID ENCE IN THIS REGARD TO DIFFERENTIATE THE FACTS FROM EARLIER YEAR WHICH THE CIT(A) HAS FAILED TO CONSIDER AND HE HAS MECHANICALLY FOLLOWED THE ORDER OF EARLIER Y EAR. IT IS THEREFORE PRAYED THAT THE DISALLOWANCE OF 37 ,59,821/- MADE BY THE AO AND UPHELD BY CIT(A) SHOULD BE DELETED. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED ITS E-RETURN OF INCOME ON 30/09/2015 DECLARING TOTAL LOSS OF (- )RS.53,09,337/-. THE CASE WAS SELECTED FOR LIMITED SCRUTINY AND AFTER SERVING STATUTORY NOTICE AND SEEKING REPLY OF THE ASSESSEE, ORDER OF ASSESSMENT U/S.143(3) OF THE ACT WAS PASSED ON 13/09/2017 AND THUS ASSESSING OFFICER MAD E DISALLOWANCE OF ENTIRE COMMISSION PAID BY THE ASSESSEE TO THE FOREI GN AGENTS. ITA NO.1690/AHD/2018 KEMIT CHEMICALS PVT.LTD. VS. ACIT ASST.YEAR 2015-16 - 3 - 4. AT THE OUTSET, THE LD.AR SUBMITTED BEFORE US THA T THE PRESENT GROUND IS SQUARELY COVERED IN FAVOUR OF ASSESSEE BY THE DE CISION OF HONBLE ITAT, AHMEDABAD BENCH AS IDENTICAL GROUND WITH REGARD TO FOREIGN COMMISSION PAID BY THE ASSESSEE WAS ALSO THERE IN AYS 2012-13 & 2014-15. HOWEVER, THE HONBLE ITAT WHILE DECIDING THE APPEALS FOR AYS 2012-13, 2014-15 IN ITA NOS.2882/AHD/2015 AND 2593/AHD/2017 HAD RESTORED T HE ISSUE TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICATIONS AND ASSES SING OFFICER ADJUDICATED THIS ISSUE AFRESH AND PASSED ORDER OF ASSESSMENT U/ S.143(3) R.W.S.254 OF THE ACT AND HAD DECIDED THE SAID GROUND IN FAVOUR OF A SSESSEE. IT WAS ALSO SUBMITTED THAT ASSESSMENT ORDER FOR AY 2017-18 HAS ALSO BEEN DECIDED IN FAVOUR OF ASSESSEE WHEREIN ALSO IDENTICAL GROUND WA S RAISED. 5. ON THE OTHER HAND, LD.DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 6. WE HAVE HEARD THE LEARNED REPRESENTATIVES FOR B OTH THE PARTIES. WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD, OR DERS PASSED BY THE REVENUE AUTHORITIES AS WELL AS THE ORDERS OF ITAT C ITED BY THE LD.AR FOR AYS 2012-13, 2014-15 & 2017-18 (PLACED AT PAPER-BOOK AT PAGE NOS.176 TO 183), WHEREIN IDENTICAL GROUNDS HAVE ALREADY BEEN DECIDED IN FAVOUR OF ASSESSEE. ALTHOUGH, LD.DR SUBMITTED BEFORE US THAT NECESSARY VERIFICATIONS WERE REQUIRED IN THIS CASE FOR ASCERTAINING AS TO WHETHE R THE ASSESSEE HAS DULY COMPLIED WITH ALL ENQUIRIES RAISED BY THE ASSESSING OFFICER AND HAD SUBMITTED THE REQUIRED DOCUMENTS. ITA NO.1690/AHD/2018 KEMIT CHEMICALS PVT.LTD. VS. ACIT ASST.YEAR 2015-16 - 4 - 7. BE THAT AS IT MAY, CONSIDERING THE INTEREST OF JUSTICE AND WHILE TAKING INTO CONSIDERATION OF THE IDENTICAL ISSUE WHICH HAS ALREADY BEEN DECIDED BY THE REVENUE IN FAVOUR OF ASSESSEE IN AYS 2012-13, 2 014-15 & 2017-18, THEREFORE KEEPING IN VIEW THE ABOVE FACTS, WE RESTO RE THIS GROUND TO THE FILE OF ASSESSING OFFICER TO VERIFY THE DOCUMENTS SUBMIT TED BY THE ASSESSEE, THE ASSESSING OFFICER IS AT LIBERTY TO CALL FOR ANY OTH ER DOCUMENTS FROM THE ASSESSEE, IF SO REQUIRED AND DECIDE THE ISSUE AFRE SH WHILE KEEPING IN VIEW THE ASSESSMENT ORDERS PASSED U/S.143(3) R.W.S.254 F OR AYS 2012-13 & 2014- 15 AS WELL AS ASSESSMENT PASSED UNDER SECTION 143(3 ) FOR AY 2017-18 IN ACCORDANCE WITH LAW. NEEDLESS TO STATE THAT THE LD.AO SHALL GRANT OPPORTUNITY OF HEARING TO BOTH THE PARTIES. THE AS SESSEE IS ALSO DIRECTED TO CO-OPERATE BY PROMPTLY FURNISHING ALL THE REQUIRED DETAILS CALLED FOR BY THE AO. THUS, GROUND OF APPEAL RAISED BY THE ASSESS EE IS ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 13 - 03 - 2020 AT AHMEDABAD SD/- SD/- ( AMARJIT SINGH) ( SANDEEP GOSAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 13 / 03 /2020 & . . , . ' . ./ T.C. NAIR, SR. PS ITA NO.1690/AHD/2018 KEMIT CHEMICALS PVT.LTD. VS. ACIT ASST.YEAR 2015-16 - 5 - ! '! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ()* + / CONCERNED CIT 4. + ( ) / THE CIT(A)-2, AHMEDABAD 5. ,-. '')* , )* , ( / DR, ITAT, AHMEDABAD 6. .01 / GUARD FILE. / BY ORDER, , ' //TRUE COPY// / (DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 11.3.20 (DICTATION-PAD 8- P AGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..11.3.20/12.3.20 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.13.3.20 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 13.3.20 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER