Smt. Alka Manoj Bajaj (formerly Alka Verma, Kolkata V. ITO, WD, 43(1), KOLKATA, Kolkata

ITA 1904/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9297 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 29-09-2016
• Court: TRIBUNAL
• Department Lawyers: SAURAV KUMAR ADLCIT
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI S.S.VISWANETHRA RAVI, JM, & DR. A.L.SA INI, AM ./ ITA NO.1904/KOL/2016 ( / ASSESSMENT YEAR :2010-2011) SMT. ALKA MANOJ BAJAJ(FORMERLY KNOWN AS ALKA VERMA), 23, CANAL STREET, 3 RD FLOOR, BLOCK-B, FLAT NO.G-307, KOLKATA-700048 VS. ITO, WARD-43 (1), 3, GOVERNMENT PLACE, KOLKATA-700001 ./ ./PAN/GIR NO. : AEMPV 0725 R ( /APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI AMIT AGARWAL, ADVOCATE /REVENUE BY : SHRI SAURAV KUMAR, ADL-CIT / DATE OF HEARING : 16/02/2017 /DATE OF PRONOUNCEMENT 03/03/2017 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE REVENUE, PERTAINI NG TO THE ASSESSMENT YEAR 2010-2011, IS DIRECTED AGAINST THE ORDER PASSE D BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-13, KOLKATA, I N APPEAL NO.757/CIT(A)-13/WD-45(3)/2014-15/KOL, DATED 29.02 .2016, WHICH IN TURN ARISES OUT OF ORDER PASSED BY THE AO U/S.143(3) OF THE INCOME TAX ACT 1961, (HEREINAFTER REFERRED TO AS THE ACT), DATED 14.03.2013. 2. BRIEF FACTS OF THE CASE QUA THE ASSESSEE ARE THA T THE RETURN OF INCOME FOR ASSESSMENT YEAR 2010-2011 WAS FILED BY T HE ASSESSEE ON 20- 09-2010 SHOWING TOTAL INCOME OF RS.4,86,810/-. THE RETURN OF INCOME OF THE ASSESSEE WAS PROCESSED U/S 143(1) OF THE ACT A ND LATER ON ASSESSEES CASE WAS SELECTED FOR SCRUTINY U/S.143(3 ) OF THE ACT AND THE AO COMPLETED THE ASSESSMENT BY MAKING VARIOUS ADDIT IONS. ITA NO.1904/KOL/2016 SMT. ALKA MAJOJ BAJAJ 2 3. NOT BEING SATISFIED WITH THE ORDER PASSED BY TH E AO, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A), WHO HAS DISMISSE D THE APPEAL OF THE ASSESSEE BY OBSERVING THE FOLLOWINGS :- DECISION:- 4. I HAVE GONE THROUGH THE CONTENTION OF THE ASSESS EE, THE ORDER PASSED BY THE AO AND THE SUBMISSIONS MADE BY THE AP PELLANT. THE DECISION OF THIS APPEAL IS GIVEN AS UNDER:- IN THIS CASE THE APPEAL WAS FILED ON 10.04.2013. SI NCE EVEN VARIOUS NOTICES DATED 25.01.2016, 05.02.2016, 22.02.2016 WE RE ISSUED BUT THE SAME COULD NOT BE SERVED AS THE APPELLANT LEFT IT ADDRESS. THE ENTIRE PROCEEDINGS GOT NON COMPLIED. THE WHERE ABOU T OF THE APPELLANT COULD NOT BE LOCATED HENCE AN EX-PARTY DE CISION IS TAKEN IN THIS CASE. '. COMMISSION DISALLOWANCE THE AO HAS MADE ADDITION/DISALLOWANCES OF SUCH AS E XPENSES, COMMISSION, SALE PROMOTION AND SALARY. THE AO WHILE ADDING THE COMMISSION FOUND THAT COMMISSION IS PAID FOR THE BU SINESS CLAIMED TO BE BROUGHT IN BY THE BROKER RELATED TO THE SAME PARTIES. AGAINST SINGLE CLIENT TRANSACTION BROKERAGE HAVE BEEN CLAIM ED BY DIFFERENT BROKERS, SHRI ARVIND HARLALKA RECEIVED COMMISSION A S DIRECTOR OF M/S. DYNAMIC TRADERS AND ON BEHALF OF DYNAMIC SOLUT ION TOO, THE AO ALSO OBSERVED THAT COMMISSION IS PAID @ 40% WHER EAS NORMAL RATES ARE APPROXIMATELY 10%. THE AO FOUND THAT THE PAYMENT WERE EXCESSIVE, SERVICES RENDERED WERE NOT PROVED, THE E XPENSES WERE DEBITED IN ORDER REDUCE TAXABLE PROFIT. AS AT APPEL LATE STAGE THE OBSERVATION OF THE AO WERE NOT CONTROVERTED BY MATE RIAL EVIDENCE. THE APPELLANT MERELY RELIED ON HIS CHEQUE PAYMENT W HICH IS NOT SANCROCENT IN ITSELF, THEREFORE THE ADDITION MADE O N THIS ACCOUNT BY THE AO IS HEREBY UPHELD. THE GROUND OF APPEAL IS DI SMISSED. (II) AS REGARD SALARY ADDITION IS CONCERN IN CASE O F MR. BAJAJ, MRS. SWETA SINGH AND SALARY TO OTHERS, THE AO HAS GIVEN VERY CATEGORICAL FINDING IN EACH CASE. IN CASE OF DISALL OWANCE OF MR. BAJAJ THE AO HAS RELIED UPON THE STATEMENT OF SHRI MANOJ KUMAR AND ON THE BASIS OF HIS STATEMENT ONLY IT WAS CONCL UDED BY HIM THAT THE WORKING PERIOD WAS LESS THAN THE PAYMENT AND IT WAS FULL WITH CONTRADICTION. SIMILARLY SMT. SWETA SINGH COULD NOT EXPLAINED HER SERVICES RENDERED. THE P.F DETAILS AND SALARY REGIS TERS WERE NOT PRODUCED. PAYMENTS WERE MADE THROUGH SELF MADE CASH VOUCHER. BASED ON OBSERVATION THE AO HAS MADE ADDITION UNDER AFORESAID HEADS. THESE FACTS ARE NOT CONTROVERTED BY THE APPE LLANT. VERY VAGUE AND GENERAL COMMENTS/EXPLANATION WITHOUT SUBS TANCE HAVE ITA NO.1904/KOL/2016 SMT. ALKA MAJOJ BAJAJ 3 BEEN GIVEN. CONSIDERING THE FACTS, THE ADDITION MAD E BY THE AO IS HEREBY UPHELD AND THE GROUND OF APPEAL IS DISMISSED . SALE PROMOTION DISALLOWANCE (III)THE AO DISALLOWED THE SALE PROMOTION EXPENSES ON THE GROUND THAT THE APPELLANT IS EARNING INCOME FROM COMMISSIO N AND OTHER SOURCES WHICH DOES NOT REQUIRE SALE PROMOTION. ON T HE CONTRARY THE APPELLANT SUBMITTED THAT BEING NEW BUSINESS IT REQU IRED PROMOTING ITS BUSINESS. THE APPELLANT HAS SUBMITTED THAT THE PURPOSE HAS NOT BEEN VERIFIED AND EX-PARTY DECISION HAS BEEN TAKEN, I AGREE WITH THE SUBMISSION OF THE APPELLANT THAT THE SAME SHOULD HA VE BEEN EXAMINED AT THE SAME TIME THE APPELLANT ALSO FAILED TO PROVE THAT (I) THE EXPENSES AND ITS NATURE (II) AS HOW THE SAME WA S INCIDENTAL TO HER BUSINESS. IN ABSENCE OF DETAIL AND MERELY ON VA GUE CLAIM THE APPELLANTS CLAIM IS NOT ALLOWABLE. THE ADDITION MAD E BY THE AO ON THIS ACCOUNT IS UPHELD. THE GROUND OF APPEAL IS DIS MISSED. 4. NOT BEING SATISFIED WITH THE ORDER OF LD. CIT(A) , THE ASSESSEE IS IN FURTHER APPEAL BEFORE US AND HAS TAKEN THE FOLLOWIN G GROUNDS OF APPEAL :- 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN PASSING AN EXPARTE ORDER WITHOU T AFFORDING A REASONABLE OPPORTUNITY OF HEARING. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S)-13 WAS UNJUSTIFIED IN DISALLOWING THE EXPENSES AMOUNTING T O RS.1, 10,000/- INCURRED UNDER THE HEAD BUSINESS PROMOTION EXPENSES FOR HER BUSINESS. 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S)-13 HAS ERRED IN TREATING AN AMOUNT OF RS. 11,96,199/- AS E XCESSIVE COMMISSION PAID FOR INTRODUCTION OF NEW CLIENT VIZ MD. ASLAM. 4. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S)-13 HAS WRONGLY DISALLOWED AN AMOUNT OF RS.40,000/- ON ACCO UNT OF SALARY PAID TO ONE MR. MANOJ KR. BAJAJ. 5. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S)-13 HAS WRONGLY DISALLOWED AN AMOUNT OF RS.1,26,000/- ON AC COUNT OF SALARY AND INCENTIVE PAID TO ONE MRS. SWETA SINGH. 6. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S)-13 HAS ERRED IN MAKING AD HOC DISALLOWANCE OF 25% OF THE S ALARY AND INCENTIVE PAID TO EMPLOYEES AMOUNTING TO RS. 2,81,0 00/- TREATING IT AS EXCESSIVE SALARY PAID. 7. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER O R DELETE ALL OR ANY OF THE GROUNDS OF APPEAL. ITA NO.1904/KOL/2016 SMT. ALKA MAJOJ BAJAJ 4 5. ALTHOUGH IN THIS APPEAL THE ASSESSEE HAS RAISED MULTIPLE GROUNDS OF APPEAL, BUT AT THE TIME OF HEARING THE SOLITARY GRIEVANCE OF THE ASSESSEE HAS BEEN CONFINED TO GROUND NO.1 ONLY. GRO UND NO.1 RELATES TO EX-PARTE ORDER PASSED BY LD. CIT(A) WITH OUT GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 6. LD. AR FOR THE ASSESSEE HAS SUBMITTED BEFORE US THA T THE ASSESSEE DID NOT GET THE NOTICE OF HEARING FROM THE LD. CIT( A) BECAUSE OF CHANCE OF ADDRESS. SINCE THE ASSESSEE HAS CHANGED THE ADDRESS OF COMMUNICATION, THEREFORE, HE COULD NOT GET NOTICE OF HEARING FROM THE LD. CIT(A). THE LD. AR FOR THE ASSESSEE HAS FURTHER ARGUED THAT IN THIS CASE, THE RIGHTS AND LIABILITIES OF THE ASSESSEE HAS NOT BEEN DETERMINED BY THE LD. CIT(A), THEREFORE, IT IS APPROPRIATE TO SEND THE CASE BACK TO THE FILE OF LD. CIT(A) TO RE-ADJUDICATE THE ISSUE AFRESH. 7. ON THE OTHER HAND, LD. DR FOR THE REVENUE HAS FA IRLY AGREED THAT IN THE CASE UNDER CONSIDERATION THE RIGHTS AND LIABILI TIES OF THE ASSESSEE HAS NOT BEEN DETERMINED BY THE LD. CIT(A), THEREFORE, I T IS APPROPRIATE TO SEND THE CASE BACK TO THE FILE OF LD. CIT(A) TO RE-ADJUD ICATE THE ISSUE AFRESH. 8. HAVING HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD, WE ARE OF THE VIEW THAT THERE IS MERIT I N THE SUBMISSIONS OF THE ASSESSEE, AS THE PROPOSITION CANVASSED BY LD. AR FO R THE ASSESSEE ARE SUPPORTED BY THE FACTS NARRATED BY HIM ABOVE. AS L D. AR FOR THE ASSESSEE HAS STATED BEFORE US THAT BECAUSE OF CHANG E OF ADDRESS, THE ASSESSEE COULD NOT GET NOTICE OF HEARING FROM THE L D. CIT(A) AND SINCE IN THIS CASE THE RIGHTS AND LIABILITIES OF THE ASSESS EE HAS NOT BEEN ITA NO.1904/KOL/2016 SMT. ALKA MAJOJ BAJAJ 5 DETERMINED BY THE LD. CIT(A), THEREFORE, WE ARE OF THE VIEW TO REMIT THE CASE BACK TO THE FILE OF LD. CIT(A) TO READJUDICATE THE ISSUE AFRESH AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE ASS ESSEE. SINCE WE ARE SENDING BACK THE ENTIRE CASE TO THE FILE OF LD. CIT (A), THEREFORE, WE DO NOT ADJUDICATE OTHER GROUNDS RAISED BY THE ASSESSEE ON MERITS. 9. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 03/03 /2017. SD/ - (S.S.VISWANETHRA RAVI) S D/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; $% DATED 03/03/2017 & ()* /PRAKASH MISHRA ,SR.PS. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) & ' , / ITAT, KOLKATA 1. / THE APPELLANT-SMT. ALKA MANOJ BAJAJ 2. / THE RESPONDENT.-ITO WARD-43 (1), KOLKATA 3. 4 ( ) / THE CIT(A), KOLKATA. 4. 4 / CIT 5. 56 7 8 , 8 , / DR, ITAT, KOLKATA 6. 7 9 / GUARD FILE. 5 //TRUE COPY//