Sunil.D, Trivandrum V. ITO, Trivandrum

ITA 213/COCH/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58369 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 20-03-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 22-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIJAYAPRABHA
• Assessee Lawyers: S S DANIEL MOBESH
• Keywords: Capital expenditure

Judgement Text

1 ITA NO. 213/COCH/2010 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) I.TA NO. 213/COCH/2010 (ASSESSMENT YEAR 2006-07) SUNIL D VS ITO, WD.1(3) KALLUVILA VEEDU TRIVANDRUM OPP CLASSIC AVENUE HOTEL MANJALIKULAM ROAD, TRIVANDRUM PAN : AHQPD5557Q (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.S. DANIEL MOBESH RESPONDENT BY : SMT. VIJAYAPRABHA DATE OF HEARING : 20-03-2012 DATE OF PRONOUNCEMENT : 29-03-2012 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME-TAX(A)-I, TRIVANDRUM DATED 11 -11-2009 AND PERTAINS TO ASSESSMENT YEAR 2006-07. 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS PAYME NT OF COMMISSION. 3. SHRI DANIEL MOBESH, THE LD.REPRESENTATIVE FOR TH E ASSESSEE SUBMITTED THAT THE ASSESSEE IS A SMALL TIME BUSINESSMAN MAKING ARRA NGEMENT FOR FINANCE FOR 2 ITA NO. 213/COCH/2010 THOSE PEOPLE, WHO ARE PURCHASING VEHICLES. ACCORDI NG TO THE LD.REPRESENTATIVE, THE SALES REPRESENTATIVES OF THE DEALERS OF THE CAR S APPROACH THE ASSESSEE FOR ARRANGING FINANCE FOR THEIR CUSTOMERS. IN TURN, TH E ASSESSEE USED TO PAY COMMISSION TO THE SALES REPRESENTATIVES. ACCORDING TO THE LD.REPRESENTATIVE, THE ASSESSEE IS NOT MAINTAINING ANY VOUCHERS OR RECORDS TO SHOW THE PAYMENT OF COMMISSION. ACCORDING TO THE LD.REPRESENTATIVE, TH E COMMISSION WAS IN FACT PAID AND THEREFORE, IT HAS TO BE ALLOWED WHILE COMPUTING THE TAXABLE INCOME. 4. ON THE CONTRARY, SMT. VIJAYAPRABHA, THE LD.DR SU BMITTED THAT THE ASSESSEE CLAIMED ALL PAYMENTS AS COMMISSION. CERTAIN PAYMEN TS WERE ACTUALLY MADE FOR PURCHASE OF THE CARS WHICH IS CAPITAL EXPENDITURE. MOREOVER, THE ASSESSEE HAS NOT MAINTAINED ANY PROPER VOUCHERS / DETAILS WITH R EGARD TO PAYMENTS MADE. THEREFORE, THE LOWER AUTHORITY HAS RIGHTLY DISALLOW ED THE CLAIM OF THE ASSESSEE. THE LD.REPRESENTATIVE HAS PLACED HER RELIANCE ON TH E JUDGMENT OF THE KERALA HIGH COURT IN HEMAMBIKA CHITIES AND LOANS PVT LTD VS DY.C IT (2004) 266 ITR 427 (KER). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE HAS MADE SUBSTANTIAL PAYMENT TO VARIOUS PERSONS AND CLAIMED THE SAME AS COMMISSION PAID TO THOSE PEOPLE, WHO REFERRED THE MATTER FOR ASSISTANCE OF FINANCE. WHE N THE ASSESSEE CLAIMS THE PAYMENT TOWARDS COMMISSION AS EXPENDITURE, IT IS FO R THE ASSESSEE TO ESTABLISH THAT SUCH PAYMENTS WERE MADE TOWARDS COMMISSION FOR THE PURPOSE OF BUSINESS. IN THE ABSENCE OF ANY MATERIAL TO SUGGEST THAT THE PAYMENT WAS MADE FOR COMMISSION IN THE COURSE OF HIS BUSINESS ACTIVITY, THIS TRIBUNAL IS OF THE OPINION THAT THE LOWER AUTHORITY HAS RIGHTLY DISALLOWED THE CLAIM OF THE ASSESSEE. THE ASSESSEE HAS NOT PRODUCED ANY MATERIAL EVEN BEFORE THIS TRIBUNAL. IN FACT, THE ASSESSEE ADMITS THAT NO MATERIAL WAS AVAILABLE TO S HOW THAT THE PAYMENT IS MADE 3 ITA NO. 213/COCH/2010 TOWARDS COMMISSION. IN THESE CIRCUMSTANCES, THIS T RIBUNAL DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LOWER AUTHORITY. ACC ORDINGLY THE SAME IS CONFIRMED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF MARCH, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 29 TH MARCH, 2012 PK/- COPY TO: 1. SHRI SUNIL D, KALLUVILA VEEDU, OPP CLASSIC AVENUE HO TEL, MANJALIKULAM ROAD, TRIVANDRUM 2. THE ITO, WD.1(3), TRIVANDRUM 3. THE COMMISSIONER OF INCOME-TAX(A)-I, TRIVANDRUM 4. THE COMMISSIONER OF INCOME-TAX, TRIVANDRUM 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH