LAXMI BOARD AND PAPER MILL LTD, MUMBAI V. ACIT 10(2), MUMBAI

ITA 2018/MUM/2013

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0601 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 22-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 14-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V VIDHYADHARDR
• Assessee Lawyers: VIJAY T PARMAR
• Keywords: Opportunity of being heard; Additional evidence
• Section: 133(6)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A , MUMBAI , . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ITA NO.2018/MUM/2013 ASSESSMENT YEAR: 2009 - 2010 LAXMI BOARD AND PAPER MILL LTD. 3 RD FLOOR, 308 RUNWAL CENTRE, BSD MARG, GOVANDI, MUMBAI 400 088 / VS. ACIT 10(2) MUMBAI ( ! /ASSESSEE) ( ' / REVENUE) P.A. NO. AAACL0662Q ! / ASSESSEE BY SHRI VIJAY T PARMAR ' / REVENUE BY SHRI V VIDHYADHAR DR # '$ % !& / DATE OF HEARING : 06/02/2018 % !& / DATE OF PRONOUNCEMENT 06/02/2018 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER D ATED 22 ND FEBRUARY, 2013 OF THE LEARNED FIRST APPELLATE AUTH ORITY DISALLOWING THE COMMISSION OF RS 41,72,725/- OUT OF THE 2 TOTAL COMMISSION OF RS 1,25,00,445/- MADE VIDE ORDE R DATED 30.12.2011. DURING HEARING THE LEARNED COUNSEL FOR THE ASSESSEE SHRI VIJAY T PARMAR, FILED A PAPER-BOOK CO NTAINING ADDITIONAL EVIDENCES TO SUBSTANTIATE ITS CLAIM BY C ONTENDING THAT DUE TO CERTAIN UNAVOIDABLE CIRCUMSTANCES THESE ADDITIONAL EVIDENCE COULD NOT BE FILED BUT THE SAME GOES TO THE ROOT OF THE MATTER AND THE ASSESSEE IS IN A POS ITION TO EXPLAIN THE GENUINENESS OF THE COMMISSION. ON THE OTHER HAND, THE LEARNED DR SHRI V VIDYADHAR, CONTENDED TH AT IT WAS THE DUTY OF THE ASSESSEE TO FILE THE NECESSARY DETAILS BEFORE THE LEARNED ASSESSING OFFICER. 2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS IN BRIE F ARE THAT THE ASSESSEE CLAIMED TRADE COMMISSION AMOUNTING TO RS 2,78,13,197/-. ON SCRUTINY OF THE DETAILS IT WAS F OUND THAT THE ASSESSEE PAID RS 1,35,16,728/- TO TWENTY PARTIE S FOR THE SERVICES PROVIDED BY THEM WITH RESPECT TO SALES. T HE DETAILS OF SUCH PARTIES ARE AVAILABLE IN THE ASSESSMENT ORD ER. DUE TO VARIATION IN THE RATES, THE LEARNED ASSESSING OF FICER ISSUED NOTICES U/S. 133(6) TO THE PARTIES AND CERTA IN ANOMALIES WERE NOTED. SOME OF THE PARTIES DULY CON FIRMED 3 THE TRANSACTION OF PURCHASES BUT AS PER THE REVENUE FOR REMAINING PARTIES THE ASSESSEE COULD NOT JUSTIFY TH E PAYMENT OF COMMISSION THUS, OUT OF THE COMMISSION THE LEARN ED ASSESSING OFFICER DISALLOWED RS1,25,99, 445/-. ON APPEAL BEFORE THE CIT(A) THE FACTUAL MATRIX WAS CONSIDERED AND OUT OF THE DISALLOWED COMMISSION OF RS 1,25,00,445/- DE LETED THE ADDITION OF RS 83,27,725/- AND THE REMAINING AM OUNT OF RS 41,72,725/- WAS CONFIRMED. BEFORE US THE ASSESS EE HAS FURNISHED THE ADDITIONAL EVIDENCE AND CONTENDED THA T THE ASSESSEE IS IN A POSITION TO SUBSTANTIATE THE CLAIM AND DUE TO CERTAIN UNAVOIDABLE CIRCUMSTANCES, COULD NOT FIL E THE DETAILS BEFORE THE LEARNED CIT(A). WE ARE OF THE V IEW THAT THE MANDATE OF ARTICLE 265 OF CONSTITUTION OF INDIA IS TO LEVY AND COLLECT DUE TAXES THEREFORE, WE REMAND THIS APPEAL TO THE FILE OF THE LEARNED ASSESSING OFFICER TO EXAMINE THE CLA IM OF THE ASSESSEE AFRESH. THE ASSESSEE IS DIRECTED TO FURNI SH THE NECESSARY EVIDENCE BEFORE THE LEARNED ASSESSING OFF ICER TO SUBSTANTIATE ITS CLAIM FOR WHICH DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE. THE APPEAL OF T HE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. 4 FINALLY THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 6 TH FEBRUARY, 2018. SD/- (G. MANJUNATHA) SD/- (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER # $ MUMBAI; + DATED : 06 /02/2018 SA %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-./ / THE APPELLANT 2. 01./ / THE RESPONDENT. 3. 2 2 # 3! , ( ,- ) / THE CIT, MUMBAI. 4. 2 2 # 3! / CIT(A)- , MUMBAI 5. 5'6 0! , 2 ,-& , , # $ / DR, ITAT, MUMBAI 6. 7 8$ / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) , # $ / ITAT, MUMBAI