Akshoy Creation, Kolkata V. A.C.I.T., Range-43, Kolkata, Kolkata

ITA 2006/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1921 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 29-10-2014
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATACHARYA
• Assessee Lawyers: K DATTARU
• Keywords: Principle of natural justice; Wrong claim; Onus to prove
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI S.S.VISWANETHRA RAVI, JM & DR. A.L.SAI NI, AM ./ ITA NO.2006/KOL/2014 ( / ASSESSMENT YEAR :2009-2010) AKSHOY CREATION, 15B, ARMENIAN STREET, TRPL TOWER, 5 TH FLOOR, KOLKATA-700007 VS. ADCIT, RANGE-43, 3, GOVERNMENT PLACE (WEST) KOLKATA-700001 ./ ./PAN/GIR NO. : AAKFA 4313 J ( /APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI K.DATTARU, FCA /REVENUE BY : SHRI ARINDAM BHATACHARYA / DATE OF HEARING : 15/03/2017 /DATE OF PRONOUNCEMENT 05/04/2017 / O R D E R PER DR. ARJUN LAL SAINI, AM THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAI NING TO ASSESSMENT YEAR 2009-10, IS DIRECTED AGAINST THE OR DER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXX, KOLKATA, IN APPEAL NO.303/CIT(A)-XXX/R-43/2011-12, DATED 18.08.2014, W HICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE AO U/S.143 OF THE INC OME TAX ACT 1961, (HEREINAFTER REFERRED TO AS THE ACT), DATED 27.12 .2011. 2. BRIEF FACTS OF THE CASE QUA THE ASSESSEE ARE THA T THE ASSESSEE IS A WHOLE SALE DEALER AND MANUFACTURERS OF FANCY HANDLO OM AND SILK SAREES. THE ASSESSEE FILED ITS RETURN ON 19.6.2009 DECLARIN G TOTAL INCOME OF RS.9,67,500/-, WHICH WAS SELECTED FOR SCRUTINY AND THE AO COMPLETED THE ASSESSEE AFTER MAKING VARIOUS ADDITIONS. ITA NO.2006/KOL/2014 AKSHOY CREATION 2 3. NOT BEING SATISFIED WITH THE ORDER PASSED BY TH E AO, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A), WHO HAS CONFIRME D THE ADDITION MADE BY THE AO OBSERVING THE FOLLOWINGS :- 4.2 DECISION THE A.O. APPEARS TO HAVE WANTED TO EXAMINE SMT. HE MA SURAIYA, PURPORTED RECIPIENT OF COMMISSION. IN SPIT E OF SUMMON U/S.131, SMT. HEMA SURAIYA DID NOT PERSONALLY REPOR T TO THE AO FOR EXAMINATION BUT SENT SOME WRITTEN COMMUNICATION INS TEAD. THE AO TREATED THE TRANSACTION AS BOGUS BECAUSE THE APPELL ANT ALSO FAILED TO PRODUCE HER BEFORE THE AO. IN THE APPEAL STAGE, THE APPELLANT HAS MERELY GONE INTO TECHNICALITIES AS TO HOW THE A O WAS WRONG IN MAKING THE ADDITION. IT HAS SHOWN NO WILLINGNESS TO PRODUCE SMT. HEMA SURAIYA FOR EXAMINATION TO ANY AUTHORITY OF IN COME TAX. IN MY VIEW, THE APPELLANT SEEMS TO BE RELYING ONLY ON PAPERS PURPORTEDLY FROM SMT. HEMA SURAIYA. THE AO HAS POIN TED OUT SOME OTHER MISSING LINKS IN THE BALANCE SHEET AND P/L AC COUNT OF SMT. HEMA SURAIYA IN RESPECT OF COMMISSION TRANSACTIONS. I THEREFORE DO NOT SEE ANY REASON TO INTERFERE WITH THE DECISION O F THE AO AND THE ASSESSMENT ORDER IS THEREFORE CONFIRMED. THE GROUND IS REJECTED. 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 :- I. A) FOR THAT THE ID. COMMISSIONER OF INCOME TAX ( APPEALS) - XXX, KOLKATA ERRED IN CONFIRMING THE DECISION OF THE A. O. IN TREATING RS.2,51,515/-, BEING COMMISSION PAID TO SMT. HEMA S URAIYA AS BOGUS CLAIM AND CONCEALMENT OF INCOME WHICH IS I LLEGAL, UNJUST, ARBITRARY AND AGAINST PRINCIPAL OF NATURAL JUSTICE. B) FOR THAT THE ID. A. O. NEITHER DID TAKE ANY FUR THER STEPS TO CALL SMT. HEMA SURAIYA IN PERSON NOR DID HE SEND ANY DEPARTMENTAL INSPECTOR TO VERIFY THE EXISTENCE OF T HE SAID PARTY BUT HURRIEDLY RUSHED TO COMPLETE THE ASSESSMENT WHI CH WAS GETTING TIME- BARRED ON 31-12-2011 BY PASSING AN OR DER DATED 27-12-2011 ADDING BACK THE ENTIRE SUM OF BROKERAGE / COMMISSION PAID TO SMT. HEMA SURAIYA AT RS.2,51,515 /- AND THE SAID ADDITION WAS CONFIRMED BY THE ID. COMMISSI ONER OF INCOME TAX (APPEALS) - XXX, KOLKATA WHICH IS UNJUST IFIED AND BAD IN LAW. II. FOR THAT THE APPELLANT CRAVES LEAVE TO ADD, AL TER, AMEND, MODIFY OR DELETE ALL OR ANY OF THE GROUNDS OF APPEAL AT OR BEFORE THE TIME OF HEARING. ITA NO.2006/KOL/2014 AKSHOY CREATION 3 5. ALTHOUGH, THE ASSESSEE HAS RAISED THREE GROUNDS OF APPEAL, BUT AT THE TIME OF HEARING THE SOLITARY GRIEVANCE OF THE A SSESSEE HAS BEEN CONFINED TO THE ISSUE THAT LD CIT(A) WAS WRONG IN TREATING RS.2,51,515/-, BEING COMMISSION PAID TO SMT. HEMA S URAIYA AS BOGUS CLAIM AND CONCEALMENT OF INCOME. 5.1 LD AR FOR THE ASSESSEE HAS SUBMITTED BEFORE US THAT IN RESPONSE TO NOTICE U/S 142 (1) DTD.30-06-2011, THE ASSESSEE FUR NISHED THE DETAILS OF THE SAID COMMISSION PAID AT RS. 2,51,515/- BEFORE T HE AO. THE ASSESSEE SUBMITTED FORM NO. 16A ALONG WITH OTHER REQUIRED D ETAILS AND DOCUMENTS RELATING TO A. Y. 2009 2010. ASSESSEE ALSO SUBMIT TED PHOTOCOPIES OF PAN CARD, COPIES OF COMMISSION BILLS, I.T. ACKNOWLE DGEMENT COPY, COMPUTATION OF TOTAL INCOME AND FINAL ACCOUNTS OF S MT. HEMA SURAIYA. THE LD AR POINTED OUT THAT THE APPELLANT HAS DULY D ISCHARGED ITS ONUS TO PROVE THE GENUINENESS AND AUTHENTICITY OF ITS TRANS ACTIONS WITH THE SAID PARTY SMT. HEMA SURAIYA BY SUBMITTING ALL THE RELEV ANT DETAILS AND SUFFICIENT DOCUMENTARY EVIDENCES FROM TIME TO TIME TO ESTABLISH THE GENUINENESS OF TRANSACTIONS WITH SMT. HEMA SURAIYA. FURTHER, THE SUMMONS U/S 131 OF THE INCOME TAX ACT, 1961 AS ISSU ED BY THE ID. A. O. HAS BEEN SERVED ON THE SAID PARTY SMT. HEMA SURAIYA AT THE GIVEN ADDRESS AND SHE RESPONDED THE SAME, AND THE WRITTEN COMMUNICATION FILED BY HER PROVES THAT THE SAID SMT. HEMA SURAIYA DOES EXIST AT THE GIVEN ADDRESS. THEREFORE THE AO COMPLETED THE ASSES SMENT BASED ON HIS OWN PRESUMPTIONS, ASSUMPTIONS, CONJECTURES AND SURM ISES WHICH IS ITA NO.2006/KOL/2014 AKSHOY CREATION 4 ERRONEOUS, UNJUST, ARBITRARY, FALSE, WITHOUT ANY BA SIS WHATSOEVER AND BAD IN LAW AND THE SAID ADDITION OF RS.2,51,515/- SHOUL D BE DELETED IN TOTO. 5.2. LD. DR FOR THE REVENUE HAS ALSO PRIMARILY RELI ED ON THE FINDINGS OF THE AO WHICH WE HAVE ALREADY NOTED IN OUR EARLIER P ARA AND IS NOT BEING REPEATED FOR THE SAKE OF BREVITY. 5.3. HAVING HEARD THE RIVAL SUBMISSIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORDS, WE ARE OF THE VIEW THAT THERE IS A MERI T IN THE SUBMISSIONS OF THE ASSESSEE, AS THE PROPOSITION CANVASSED BY THE L D. AR FOR THE ASSESSEE ARE SUPPORTED BY THE FACTS NARRATED BY HI M ABOVE. AS THE LD. AR FOR THE ASSESSEE HAS POINTED OUT THAT THE ASSESS EE HAS PRODUCED TDS CERTIFICATE. THE ASSESSEE HAS ALSO SUBMITTED BA NK STATEMENT SUGGESTING PAYMENT TO HEMA SURAIYA. THE ASSESSEE AL SO SUBMITTED THE COLLECTION SHEET OF COMMISSION PAID TO HEMA SURAIYA . THE ASSESSEE ALSO SUBMITTED COPY OF LEDGER ACCOUNT OF HEMA SURAIYA. T HE ASSESSEE ALSO SUBMITTED XEROX COPY OF COMMISSION BILLS. MOREOVER, THE TRANSACTION IS THROUGH ACCOUNT PAYEE CHEQUE. IN ADDITION TO THIS, THE ASSESSEE ALSO SUBMITTED COPY OF INCOME TAX RETURN, PAN CARD AND O THER DETAILS. IN ALL THESE DETAILS SUBMITTED BY THE ASSESSEE LD. AO DID NOT FIND ANY MISTAKE. THEREFORE, BASED ON THESE DOCUMENTS, IDENTITY AND G ENUINENESS OF THE TRANSACTION HAS PROVED BEYOND DOUBT. THEREFORE, THE ADDITION MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) NEEDS TO BE DELETED. ACCORDINGLY, WE DELETE THE ADDITION. 5.4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ITA NO.2006/KOL/2014 AKSHOY CREATION 5 ORDER PRONOUNCED IN THE OPEN COURT ON THIS 05/04 /2017. S D/ - (S.S.VISWANETHRA RAVI) S D/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; $% DATED 05/04/2017 & ()* /PRAKASH MISHRA ,SR.PS. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSTT. REGISTRAR) % & , / ITAT, KOLKATA 1. / THE APPELLANT-AKSHOY CREATION 2. / THE RESPONDENT.-ADCIT, RANGE-43, 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//