The ITO, Ward-2(3), Surat V. M/s. Amit Exports, Surat

ITA 1707/AHD/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 57225 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 28-02-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 25-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RASESH SHAH

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. ./ I.T.A. NO.1707/AHD/2009 - / A.Y.2005-06 2. ./ I.T.A. NO.2166/AHD/2009 - / A.Y.2006-07 THE ITO WARD-2(3) SURAT / THE ACIT, CIR.2, SURAT / VS. M/S.AMIT EXPORTS C-2409, KOHINOOR MARKET RING ROAD SURAT ! ./'# ./ PAN/GIR NO. : AAJFA 8871 E ( $ / // / APPELLANT ) .. ( %&$ / RESPONDENT ) $ ' / APPELLANT BY : SHRI BHUVNESH KULSHRESTHA, SR.DR %&$ ( ' / RESPONDENT BY : SHRI RASESH SHAH )* ( +,! / / / / DATE OF HEARING : 28/02/2012 -. ( +,! / DATE OF PRONOUNCEMENT : 29.02.2012 / / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THESE TWO APPEALS HAVE BEEN FILED BY THE REVENUE P ERTAINING TO AYS 2005-06 & 2006-07 RESPECTIVELY DECIDED BY LD.C IT(A)-II, SURAT DATED 18/02/2009 AND 18/03/2009. FOR BOTH THE YEAR S THE ONLY SUBSTANTIVE GROUND IS IN RESPECT OF COMMISSION PAYM ENT TO FOREIGN AGENTS. FOR A.Y. 2005-06 THE DISALLOWANCE AS MADE BY THE AO WAS AT RS.16,81,415/- AND FOR A.Y. 2006-07 THE AMOUNT OF D ISALLOWANCE WAS AT RS.29,59,600/-. ITA NOS.1707 & 2166/AHD/2009 ITO/ACIT VS. M/S.AMIT EXPORTS ASST.YEARS 2005-06 & 2006-07 - 2 - 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDERS FOR AYS 2005-06 & 2006-07 BOTH PASSED U/S.14 3(3) OF THE I.T.ACT RESPECTIVELY DATED 31/12/2007 AND 26/12/2008 WERE T HAT THE ASSESSEE- FIRM IS IN THE BUSINESS OF MANUFACTURING AND EXPORT OF ART SILK CLOTH. THE OBSERVATION OF THE AO WAS THAT ON VERIFICATION OF INVOICES AND BANK CERTIFICATES IT WAS FOUND THAT THE ASSESSEE-FIRM HA D PAID COMMISSION ON THE INVOICE VALUE. THE AVERAGE RATE OF COMMISSION WAS STATED TO BE ABOUT 5% OF THE BILL AMOUNT. IT WAS ALSO NOTED BY THE AO THAT THE SAID COMMISSION WAS NOT REMITTED TO THE EXPORT AGENTS BU T IT WAS DEDUCTED FROM THE BILL AMOUNT. THE ASSESSEE HAS ADMITTED TH AT ONLY NET VALUE WAS REALISED. THE ISSUE WAS DISCUSSED AT LENGTH BY THE AO AND THEREAFTER THE CLAIM OF PAYMENT OF COMMISSION TO FOREIGN AGENT WAS DISALLOWED. 3. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APP ELLATE AUTHORITY FOR BOTH THE YEARS, THE LD.CIT(A) HAS HELD AS UNDER (RE PRODUCED FROM AY 2005-06):- 3.2. I FIND THE AR'S CONTENTION TO BE FACTUALLY CO RRECT. I ALSO FIND THAT THE ASSESSMENT ORDER UNDER APPEAL IS AN EXACT REPLICA OF THE ASSESSMENT FRAMED IN THE CASE OF M/S.AMIT INTERNATI ONAL FOR THE AY 2004-05. IN FACT, IT IS A COPY OF THE ORDER FOR TH E AY 2004-05. ON THE OTHER HAND, THE GROUNDS ON WHICH THE AR HAS PR ESENTED HIS ARGUMENTS HAVE ALSO REMAINED THE SAME AS IN THE PRE CEDING YEAR. THEREFORE, I DO NOT FIND IT NECESSARY TO GO INTO AN Y DETAIL OR ANY DISCUSSION IN DECIDING THE ASSESSEES APPEAL ON THI S GROUND. FOLLOWING MY FINDINGS AND CONCLUSION IN THE CASE OF M/S.AMIT INTERNATIONAL IN THE AY 2004-05 IN MY ORDER DATED 28-03-2008, IN APPEAL NO.CAS/II/441/06-07, I DIRECT THE AO TO DEL ETE THE ADDITION OF RS.16,81,415. ITA NOS.1707 & 2166/AHD/2009 ITO/ACIT VS. M/S.AMIT EXPORTS ASST.YEARS 2005-06 & 2006-07 - 3 - 3.1. LIKEWISE, WHILE DECIDING THE SAID ISSUE FOR AY 2006-07, THE PAST HISTORY OF THE CASE WAS FOLLOWED AND DELETED THE AD DITION. 4. PARTIES APPEARED BEFORE US. AT THE OUTSET, TWO D ECISIONS HAVE BEEN CITED AS FOLLOWS:- (I) ITA NOS.2427 & 2428/AHD/2008 FOR A.YS 2004-05 & 2005- 06 (BY REVENUE) TITLED AS ACIT VS. M/S.VIKRAM INTERNATIONAL AND ITA NOS.1799&1800/AHD/2010 (BY ASSESSEE) FOR A.YS 2003-04 & 2004-05 (ITAT AHMEDABA D D BENCH ORDER DATED 30/06/2011). (II) ITA NO.2017/AHD/2008 FOR A.Y 2004-05 TITLED AS ASST.CIT VS. M/S.AMIT INTERNATIONAL (ITAT AHMEDABAD D BEN CH ORDER DATED 30/04/2010). 4.1. LD.AR HAS STATED THAT IN RESPECT OF THE SAME P ARTY, ON IDENTICAL SITUATION, THE MATTER WAS DECIDED IN FAVOUR OF THE ASSESSEE BY THE RESPECTED TRIBUNAL. IN ONE OF THE CASE, I.E. M/S.V IKRAM INTERNATIONAL (SUPRA), THE RESPECTED COORDINATE BENCH HAS DISMISS ED THE REVENUES APPEAL PRIMARILY ON THE GROUND THAT THE ITAT AHMEDA BAD IS CONSISTENTLY FOLLOWING THE SAME VIEW AS WELL AS THERE WAS A DECI SION OF THE HONBLE JURISDICTIONAL HIGH COURT IN FAVOUR OF THE ASSESSEE . THE DECISIONS CITED ARE AS FOLLOWS:- (I) ITAT AHMEDABAD BENCH D IN THE CASE OF M/ S.J.B. EXPORTS VS. ACIT IN ITA NO.1168/AHD/2010 FOR A.Y. 2 006- 07 ORDER DATED 04/05/2011 (II) ITA NO.3206/AHD/2007 IN THE CASE OF M/S.J.B.E XPORTS VS. ADDL.CIT ORDER DATED 29/04/2011. ITA NOS.1707 & 2166/AHD/2009 ITO/ACIT VS. M/S.AMIT EXPORTS ASST.YEARS 2005-06 & 2006-07 - 4 - (III) HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF AT MA PRAKASH BATRA IN TAX APPEAL NO.838 OF 2009 DATED 21/12/2010. (IV) ITAT AHMEDABAD BENCH A IN THE CASE OF SHRI SANJAY JAIN IN ITA NO.1533/AHD/2008 FOR A.Y. 2004-05 ORDER DATE D 16/12/2009. 4.2. SINCE THE TRIBUNAL IS CONSISTENTLY HOLDING A V IEW IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE, THEREFORE WE FIND NO REASON FOR ANY DEVIATION, HENCE FOLLOWING THE PAST HISTORY, WE HER EBY CONFIRM THE FINDING OF THE CIT(A) AND DISMISS THIS GROUND OF TH E REVENUE FOR BOTH THE YEARS. 5. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. SD/- SD/- ( ANIL CHATURVEDI ) ( MUKUL KR . SHRAWAT ) ACCOUNTANT MEMBER JUDI CIAL MEMBER AHMEDABAD; DATED 29/ 02 /2012 0,.., .../ T.C. NAIR, SR. PS / ( / ( / ( / ( %+1 2 1+ %+1 2 1+ %+1 2 1+ %+1 2 1+/ COPY OF THE ORDER FORWARDED TO : 1. $ / THE APPELLANT 2. %&$ / THE RESPONDENT. 3. + )3 / CONCERNED CIT 4. )3() / THE CIT(A)-II, SURAT 5. 167 %+ , , / DR, ITAT, AHMEDABAD 6. 78 9* / GUARD FILE. /) /) /) /) / BY ORDER, &1+ %+ //TRUE COPY// : :: :/ // / ' ' ' ' ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD