Sri Parag Chandrakant Boghani, Kolkata V. ITO, Wd.35(1), Kolkata, Kolkata

ITA 184/KOL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4393 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 31-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 31-01-2014
• Court: TRIBUNAL
• Section: 143(3); 133(6)

Judgement Text

I.T.A. NO. 184/KOL./2014 ASSESSMENT YEAR: 2009-2010 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 184/KOL/ 2014 ASSESSMENT YEAR: 2009-2010 SRI PARAG CHANDRAKANT BOGHANI,..................... ...............APPELLANT C/O. D.J. SHAH & CO., KALYAN BHAWAN, 2, ELGIN ROAD, KOLKATA-700 020 [PAN: ADQPB 1742 D] -VS.- INCOME TAX OFFICER,................................ ...........................RESPONDENT WARD-35(1), KOLKATA, AAYAKAR BHAWAN, POORVA, 110, SHANTI PALLI, E.M. BY-PASS, KOLKATA-700 107 APPEARANCES BY: SHRI MIRAJ D. SHAH, A.R., FOR THE ASSESSEE SHRI VIJAYENDRA KUMAR, JCIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : AUGUST 31, 2016 DATE OF PRONOUNCING THE ORDER : OCTOBER 04, 2016 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XX, KOLKAT A DATED 06.11.2013 AND THE SOLITARY ISSUE INVOLVED THEREIN RELATES TO THE DISALLOWANCE OF RS.8,00,000/- MADE BY THE ASSESSING OFFICER AND CON FIRMED BY THE LD. CIT(APPEALS) ON ACCOUNT OF COMMISSION. 2. THE ASSESSEE IN THEPRESENT CASE IS AN INDIVIDUAL , WHO IS ENGAGED IN THE BUSINESS OF WHOLESALE TRADING OF CROCKERY, PVC FLAKES, ETC. UNDER THE NAME AND STYLE OF HIS PROPRIETARY CONCERN M/S. PARA G ENTERPRISES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION W AS FILED BY HIM ON 24.09.2009 DECLARING TOTAL INCOME OF RS.8,03,418/-. IN THE PROFIT & LOSS I.T.A. NO. 184/KOL./2014 ASSESSMENT YEAR: 2009-2010 PAGE 2 OF 3 ACCOUNT FILED ALONG WITH THE SAID RETURN, A SUM OF RS.8,00,000/- WAS DEBITED BY THE ASSESSEE ON ACCOUNT OF COMMISSION PA ID TO M/S. ESCORT ENCLAVE PVT. LIMITED. IN ORDER TO VERIFY THE SAID P AYMENT, NOTICES UNDER SECTION 133(6) WERE ISSUED BY THE ASSESSING OFFICER TO M/S. ESCORT ENCLAVE PVT. LIMITED. THE SAID NOTICES AS WELL AS T HE SUMMONS ISSUED SUBSEQUENTLY BY THE ASSESSING OFFICER UNDER SECTION 131, HOWEVER, REMAINED UN-COMPLIED WITH. 3. ALTHOUGH THE ASSESSEE FILED A COPY OF TDS CERTIF ICATE ISSUED BY THE SAID PARTY SHOWING DEDUCTION OF TAX AT SOURCE FROM THE PAYMENT OF COMMISSION OF RS.8,00,000/-, IT WAS FOUND BY THE AS SESSING OFFICER THAT NO RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATIO N HAS BEEN FILED BY THE SAID PARTY. THE ASSESSEE ALSO COULD NOT FILE AN Y EVIDENCE TO SUPPORT AND SUBSTANTIATE ITS CLAIM OF HAVING MADE HIS PAYME NT OF COMMISSION IN THE SUBSEQUENT YEAR. THE ASSESSING OFFICER, THEREFO RE, DISALLOWED THE COMMISSION OF RS.8,00,000/- AND ADDED THE SAME TO T HE TOTAL INCOME OF THE ASSESSEE IN THE ASSESSMENT COMPLETED UNDER SECT ION 143(3) VIDE AN ORDER DATED 30.12.2011. 4. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS) AND SINCE THE SUBMISSIONS MADE BY THE ASSESSEE IN SUPPORT OF HIS CASE ON THE ISSUE OF DISALLOWANCE OF COMMISS ION WERE NOT FOUND ACCEPTABLE BY HIM, THE LD. CIT(APPEALS) PROCEEDED T O CONFIRM THE SAID DISALLOWANCE MADE BY THE ASSESSING OFFICER. AGGRIEV ED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS A PPEAL BEFORE THE TRIBUNAL. 5. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESEE, PAYMENT OF COMMISSION IN QUESTION WAS NOT MADE BY THE ASSESSEE AT THE RELEVANT TIME AND IN THE ABSENCE OF PAYMENT, THE EVIDENCE TO SHOW SUCH PAYMENT COULD NOT BE PRODUCED BY HIM. HE HAS CONTENDED I.T.A. NO. 184/KOL./2014 ASSESSMENT YEAR: 2009-2010 PAGE 3 OF 3 THAT THE ASSESSEE NOW HAS NOT ONLY MADE THE PAYMENT OF COMMISSION, BUT HAS ALSO GATHERED EVIDENCE TO SUPPORT AND SUBSTANTI ATE HIS CLAIM ON ACCOUNT OF SUCH COMMISSION. HE HAS URGED THAT ONE M ORE OPPORTUNITY MAY, THEREFORE, BE GIVEN TO THE ASSESSEE TO ESTABLI SH HIS CASE ON THE ISSUE BY SENDING THE MATTER TO THE ASSESSING OFFICER. KEE PING IN VIEW ALL THE FACTS OF THE CASE, I FIND MERIT IN THE CONTENTION O F THE LD. COUNSEL FOR THE ASSESSEE. I ACCORDINGLY CONSIDER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) ON THE ISSUE UNDER CONSIDERATION AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR GIVING ONE MORE OPPORTUNITY T O THE ASSESSEE TO SUPPORT AND SUBSTANTIATE HIS CASE ON THE ISSUE OF C OMMISSION. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON OCTOBER 04, 2 016. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 4 TH DAY OF OCTOBER, 2016 COPIES TO : (1) SRI PARAG CHANDRAKANT BOGHANI, C/O. D.J. SHAH & CO., KALYAN BHAWAN, 2, ELGIN ROAD, KOLKATA-700 020 (2) INCOME TAX OFFICER, WARD-35(1), KOLKATA, AAYAKAR BHAWAN, POORVA, 110, SHANTI PALLI, E.M. BY-PASS, KOLKATA-700 107 (3) COMMISSIONER OF INCOME TAX(APPEALS)-XX, KOLKAT A; (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.