ACIT(IT), Circle - 1(2), Kolkata, Kolkata V. M/s. Michel Bau GmbH & Co., KG, Kolkata

ITA 2030/KOL/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4926 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 13-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N B SOM

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C, KOLKATA BEFORE SHRI J. SUDHAKAR REDDY, AM AND SHRI S.S.VISWANETHRA RAVI, JM I.T.A. NOS. 2028, 2029 & 2030/KOL/2017 ASSESSMENT YEARS: 2012-13, 2013-14 & 2014-15 ACIT (IT) CIRCLE 1(2) KOLKATA......................APPELLANT ROOM NO. 206, 2 ND FLOOR, 110, SHANTI PALLI, KOLKATA 700 107. M/S. MICHEL BAU GMBH & CO. KG.....................................................................................RESPONDENT 38A, 2 ND FLOOR, DARGA ROAD, NEAR PARK CIRCUS, KOLKATA 700 017. [PAN: AAFCM 6013 K] APPEARANCES BY: SHRI N.B. SOM , ADDL. CIT, SR. DR APPEARING ON BEHALF OF THE REVENUE. NONE APPEARING ON BEHALF OF THE ASSESSEE. DATE OF CONCLUDING THE HEARING : JULY 24 TH , 2018 DATE OF PRONOUNCING THE ORDER : OCTOBER 17 TH , 2018 ORDER PER S.S. VISWANETHRA RAVI, JM THESE THREE APPEALS BY THE REVENUE AGAINST THE ORDER DATED 29 TH JUNE, 2017 PASSED BY THE CIT(A), KOLKATA FOR A.Y. 2012-13, 2013-14 AND 2014-15. 2. THESE APPEALS FILED WITH A DELAY OF FOUR (4) DAYS AND ON PERUSAL OF THE PETITION FILED BY THE APPELLANT REVENUE AND ON HEARING THE LEARNED DR FOR APPELLANT REVENUE AND WE FIND THE REASONS STATED IN PARAGRAPHS 4 TO 6 ARE BONA FIDE, THEREFORE, THE DELAY OF 4 DAYS IN FILING THESE THREE (3) APPEALS ARE CONDONED. ITA NOS. 2028, 2029, 2030 & 2030/K/2017 M/S. MICHEL BAU GMBH & CO. KG 2 | P A G E 3. FIRST WE SHALL TAKE UP APPEAL OF REVENUE IN ITA 2028/KOL/2017 FOR AY:2012-13. 4. RESPONDENT ASSESSEE CALLED ABSENT AND THEREFORE, SET EX-PARTE. WE PROCEED TO HEAR THE LEARNED DR FOR APPELLANT REVENUE AND PASS A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 5. THE APPELLANT REVENUE RAISED GROUND NO. 1 TO 8 INVOLVING THE SAME ISSUE, THEREFORE, THE ONLY ISSUE IS TO BE DECIDED IS AS TO WHETHER THE CIT(A) JUSTIFIED IN DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF EXPENDITURE INCURRED TOWARDS PAYMENT OF COMMISSION IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. HEARD LEARNED DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOTED FROM THE IMPUGNED ORDER AT PARA NO-6, THE CIT(A) BY PLACING RELIANCE ON THE ORDER OF ITAT KOLKATA BENCHES IN ASSESSEES OWN CASE FOR AYS 2009-10, 2010-11 AND 2011-12 DELETED THE ADDITION MADE BY THE AO ON SIMILAR IDENTICAL FACTS AND ISSUE. THE LEARNED DR DID NOT CONTROVERT THE SAME AND NO ORDER CONTRARY TO THE ORDERS OF ITAT KOLKATA BENCHES BROUGHT ON RECORD. THEREFORE, IN SUCH CIRCUMSTANCES, WE FIND NO INFIRMITY IN THE ORDER OF CIT(A) AND ACCORDINGLY, IT IS JUSTIFIED. FOR THE BETTER UNDERSTANDING, THE RELEVANT PORTION AT PARA NO-6 OF IMPUGNED ORDER IS REPRODUCED HERE UNDER : 6. AS IT EMERGES FROM THE FOREGOING, ORDER OF THE HONBLE ITAT, THE IMPUGNED MATTER OF PAYMENTS OF COMMISSION TO THE AGENT/PARTY IN INDIA HAS BEEN HELD AS ALLOWABLE AND THE DECISION OF MY PREDECESSORS HAVE BEEN CONFIRMED. I FIND THAT THE FACTUAL AND LEGAL MATRIX FOR THIS A.Y. 12-13, THE YEAR UNDER APPEAL IS IDENTICAL TO THE EARLIER THREE YEARS, WHICH HAVE ALREADY BEEN ADJUDICATED. I DO NOT FIND ANY REASON TO DIFFER FROM THE OBSERVATIONS AND DECISION OF THE LD.1 ST APPELLATE AUTHORITIES FOR THE EARLIER A.YS 2009-10, 2010-11 AND 2011-12. THEREFORE, RESPECTFULLY FOLLOWING THESE ORDERS, AS ITA NOS. 2028, 2029, 2030 & 2030/K/2017 M/S. MICHEL BAU GMBH & CO. KG 3 | P A G E WELL AS THE BINDING ORDERS OF THE HONBLE ITAT. I HOLD THAT THE DISALLOWANCE OF THE PAYMENT OF COMMISSION OF RS.2,90,16,726/-, AS MADE BY THE LD.AO IS NOT SUSTAINABLE IN THE FACTUAL AND LEGAL MATRIX OF THE CASE, AND THEREFORE IS DELETED. THE LD.AO IS TO ACT ACCORDINGLY. 7. IN VIEW OF THE ABOVE, THE IMPUGNED ORDER PASSED BY THE CIT(A), DOES NOT REQUIRE ANY INFERENCE FROM US. THUS GROUNDS 1 TO 8 RAISED BY THE REVENUE ARE DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE FOR AY: 2012-13 IS DISMISSED. 9. NOW WE SHALL TAKE UP APPEAL OF REVENUE IN ITA 2029/KOL/2017 FOR AY: 2013-14. 10. IT IS NOTED THAT THE FACTS AND CIRCUMSTANCES OF THE PRESENT APPEAL AND THE REVENUE RAISED AN IDENTICAL AND SIMILAR TO THE ISSUE RAISED IN ITA 2028/K/2017 FOR A.Y. 2012-13 WHICH WAS DECIDED BY US IN FAVOUR OF THE ASSESSEE BY DISMISSING THE APPEAL OF THE REVENUE, THEREFORE, WE ADOPT THE SAME VIEW IN THIS APPEAL. ACCORDINGLY GROUNDS RAISED BY THE REVENUE IN THIS APPEAL ARE DISMISSED. 11. IN THE RESULT, THE APPEAL OF THE REVENUE FOR AY: 2013-14 IS DISMISSED. 12. NOW WE SHALL TAKE UP APPEAL OF REVENUE IN ITA 2030/KOL/2017 FOR AY: 2014-15. 13. IT IS NOTED THAT THE FACTS AND CIRCUMSTANCES OF THE PRESENT APPEAL AND THE REVENUE RAISED AN IDENTICAL AND SIMILAR TO THE ISSUE RAISED IN ITA 2028/K/2017 FOR A.Y. 2012-13 WHICH WAS DECIDED BY US IN FAVOUR OF THE ASSESSEE BY DISMISSING THE APPEAL OF THE REVENUE, THEREFORE, WE ADOPT THE ITA NOS. 2028, 2029, 2030 & 2030/K/2017 M/S. MICHEL BAU GMBH & CO. KG 4 | P A G E SAME VIEW IN THIS APPEAL. ACCORDINGLY GROUNDS RAISED BY THE REVENUE IN THIS APPEAL ARE DISMISSED. 14. IN THE RESULT, THE APPEAL OF THE REVENUE FOR AY: 2014-15 IS DISMISSED 15. IN THE RESULT, ALL THE THREE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH OCTOBER, 2018. SD/- SD/- (J. SUDHAKAR REDDY) (S.S. VISWANETHRA RAVI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17/10/2018 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: M/S. MICHEL BAU GMBH & CO. KG., 38A, 2 ND FLOOR, DARGA ROAD, NEAR PARK CIRCUS, KOLKATA 700 017. ACIT(IT), CIRCLE 1(2), KOLKATA. THE CIT(A) THE CIT DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, KOLKATA