Addl. C.I.T., V. Sri Narmedeshwar Mishra,

ITA 180/PAT/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7767 (ITAT-PATNA)
• Duration Of Justice: 2 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 20-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K PAUL
• Assessee Lawyers: SANJEEV ANWAR
• Keywords: Assessment record
• Section: 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PATNA BENCH, PATNA BEFORE SHRI SANDEEP GOSAIN (JM) & SHRI M BALAGANESH (AM) ITA NO. 180 /PAT/201 4 ASSESSMENT YEARS: 20 1 0 - 11 A CIT CIRCLE - 1, MUZAFFARPUR. (APPELLANT) VS. SRI NARMEDESHWAR MISHRA , BETTIAH. (RESPONDE NT) PAN - AAZPM8967F DEPARTMENT BY : S HRI S. K. PAUL, JCIT . ASSESSEE BY : SHRI SANJEEV ANWAR, ADV. . DATE OF HEARING: - 0 9 /10/2017 DATE OF PRONOUNCEMENT: - 13 /10/2017 ORDER PER BENCH : THIS IS AN APPEAL BY THE REVENUE DIR ECTED AGAINST THE ORDER OF THE CIT (A) - 1 DATED - 12.08.2014 AND PERTAINS TO ASSESSMENT YEAR 2010 - 11. 2 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION. THEREAFTER, THE CASE WAS SELECT ED FOR SCRUTINY AND AFTER SERVING STATUTORY NOTICES AND SEEKING REPLY OF THE ASSESSEE, THE ORDER OF ASSESSMENT U/S 143(3) OF THE INCOME - TAX ACT, 1961 . 3 . WE HAVE HEARD THE COUNSEL FOR BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS OF THE AUTHORITIES BELOW. 2 I TA NO. - 180 / PAT /20 1 4 BEFORE WE DECIDE THE MERITS OF THE CASE, IT IS NECESSARY TO EVALUATE AND ANALYSE THE ORDERS PASSED BY THE LD. CIT(A) WHILE DEALING WITH THIS GROUND. THE LD. CIT(A) HAS DEALT WITH THESE GROUNDS IN PARA NO. 5 OF ITS ORDE R AND THE SAME IS REPRODUCED BELOW: 5. AS THE MATTER HAD NOT BEEN EXAMINED CONCLUSIVELY BY THE AO, THE MATTER WAS REMANDED TO THE AO FOR VERIFICATION OF THE SAME AFTER AFFORDING OF OPPORTUNITY OF HEARING TO THE APPELLANT. VIDE LETTER DATED 31.07.2014 TH E AO HAS COMMENTED AS UNDER: (1) COMMISSION(RS.28,45,000/ - ): DURING THE YEAR THE ASSESSE HAS MADE TOTAL EXPENDITURE OF RS.42,40,000/ - UNDER THE HEAD COMMISSION AND DEBITED THE SAME TO THE P & L ACCOUNT (IN THE ASSESSMENT ORDER THE FIGURE UNDER THIS HEAD HAS W RONGLY BEEN MENTIONED AS RS.28,45,000/ - . THE DISALLOWANCE OF THE EXPENDITURE UNDER THIS HEAD WAS MADE AS NOTICES ISSUED U/S 133(6) DURING THE COURSE OF ASSESSMENT PROCEEDINGS WERE NOT COMPLIED BY THE PERSONS TO WHOM COMMISSIONS WERE STATED TO BE PAID. HOWE VER, EXAMINATION OF THE ASSESSMENT RECORDS AS WELL AS DETAILS OF THE DOCUMENTS FURNISHED DURING REMAND PROCEEDING REVEAL THAT THE RECIPIENTS ARE ASSESSED TO INCOME - TAX AND SUE TDS HAS BEEN MADE U/S 194H ON THE PAYMENTS MADE TO TEM. THE ASSESSE HAS FIELD CO PIES OF THE ITRS OF THE AFORES AID RECIPIENTS OF COMMISSION. FUR THER DOCUME N TS HAVE BEEN FURNISHED ACKNOWLEDGEMENT REC E IPT OF COMMISSION BY THE AGENTS. IN VIEW OF THESE FACTS EXPENDITURE UNDER THIS HEAD APPEARS TO BE GENUINE. (2) SALE PROMOTION(RS.3,00,000/ - ): - UNDER THIS HEAD THE ASSESSE HAD CLAIMED TOTAL EXPENDITURE OF RS.32,02,500/ - (WRONGLY STATED AS RS.2,00,00/ - IN THE ASSESSMENT ORDER). THIS IS THE AMOUNT OF REGISTRATION AND INSURANCE OF THE TRACTORS PAID TO THE CUSTOMERS. THE ASSESSEE HAS MAINTAINED DEBIT VOUCHERS DULY ACKNOWLEDGED BY THE RECIPIENT CUSTOMERS AND PRODUCED THE SAME DURING THE ASSESSMENT AS WELL AS REMAND PROCEEDING. THE GENUINENESS OF THE RECIPIENTS OF THE AMOUNTS UNDER THIS HEAD IS ALSO VERIFIABLE FROM THE SALE INVOICES OF TRACTORS. UNDER TH ESE CIRCUMSTANCES NOTHING 3 I TA NO. - 180 / PAT /20 1 4 ADVERSE HAS BEEN FOUND TO SHOW EXCESSIVENESS OF EXPENDITURE UNDER THIS HEAD AND THEIR BEING BOGUS. (3) GOLD SCHEME (RS.4,00,000/ - ): - THE TOTAL EXPENDITURE CLAIMED UNDER THIS HEAD IS 16,80,000/ - . AS PER DETAILS FURNISHED DURING THE COU RSE OF ASSESSMENT PROCEEDING AND ALSO DURING THE REMAND PROCEEDING THE EXPENDITURE UNDER THIS HEAD PERTAINS TO A SCHEME LAUNCHED BY THE ASSESSE FOR PROMOTION OF SALE OF TRACTORS. THE EXPENDITURE UNDER THIS HEAD HAS BEEN MADE BY WAY OF CASH PAYMENT TO A NUM BER OF CUSTOMERS WHO PURCHASED TRACTOR FROM THE ASSESS EE . DEBIT VOUCHERS WITH SIGNATURES OF THE RECIPIENT CUSTOMERS AND SALE INVOICES TESTIFY THE G ENUINENESS OF PAYMENT AND RECIPIENTS. IN THE LIGHT OF THERE FACTS AND CIRCUMSTANCES THE EXPENDITURE UNDER THI S HEAD APPEARS TO BE GENUINE. 4 . AFTER HAVING GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND HAVING HEARD THE COUNSEL FOR BOTH THE PARTIES AT LENGTH, WE FIND THAT THE LEARNED COMMISSIONER OF INCOME TAX IN THIS CASE HAS DULY OBTAINED REMAND REPORT FR OM THE ASSESSING OFFICER. BASED UPON THE REMAND REPORT LD.CIT(A) FOUND THAT THE RE ASON ON WHICH THE ADDITIONS MADE ORIGINALLY , WERE NO LONGER FOUND SUSTAINABLE. WHEN LEARNED CIT ( A ) HAS DELETED THE ADDITION'S BASED UPON THE REMAND REPORT FROM THE ASSESSING OFFICER T HEN THE REVENUE CANNOT BE SAID TO BE AGRIEVED UNLESS IT IS THE PLEA OF THE REVENUE THAT IN THE REMAND REPORT ASSESSING OFFICER HAS ASKED FOR SUSTENANCE OF THE ADDITION. FURTHER IN THE REMAND PROCEEDINGS THE ASSESSEE HAD CLARIFIED THAT THE PAYMENT WAS ACTUALLY DISCOUNT AND NOT COMMISSION. IN THIS REGARD LD . CIT ( A ) HAS PROCEEDED TO MAKE FURTHER ENQUIRIES AND THEREAFTER BASED UPON THE REMAND REPORT A S A THE RESULT OF FURTHER ENQUIRIES HE CONCLUDED THAT THE AMOUNT 4 I TA NO. - 180 / PAT /20 1 4 DEBITED DID NOT REQUIRE DED UCTION AT S OURCE. ACCORDINGLY , WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LEARNED CIT ( A ) IN THIS REGARD. ON OTHER ISSUES ALSO LEARNED CIT ( A ) HAS RELIED UPON ASSESSING OFFICER'S REMAND REPORT. NO COGENT REASON HAS BEEN SUBMITTED BY THE REVENUE IS POINTING OUT THE FL AW IN THE ORDER OF LEARNED CIT ( A ) BASED UPON THE REMAND REPORT . ACCORDINGLY , WE UPHOLD THE SAME. 5 . NO NEW FACTS, CIRCUMSTANCES OR CONTRARY JUDGMENTS HAVE BEEN PRODUCED ON RECORD BEFORE US IN ORDER TO CONTROVERT OR REBUT THE FINDINGS SO RECORDED BY LD. C IT(A). 6 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. O RDER IS PRONOUNCED IN THE OPEN COURT ON 13 TH OCTOBER , 201 7 . SD/ - SD/ - ( M BALAGANESH ) ( SANDEEP GOSAIN ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE OF ORDER: 13 TH OCTOBER , 201 7 . S . S INH A (P S) COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT . 2. THE RESPONDENT : 3. THE CIT(A) - PATNA 4. CIT , PATNA 5. INCOME TAX APPELLATE TRIBUNAL,PATNA 6. GUARD FILE. //TRUE COPY// BY ORDER