Smt. Nilam Keshan, Kolkata V. ITO, Ward - 51(4), Kolkata , Kolkata

ITA 2200/KOL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6292 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 16-10-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS CIT SR DR REVE
• Assessee Lawyers: AMIT JALAN
• Keywords: Onus to prove
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA SMC BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, A CCOUNTANT M EMBER ] I.T.A. NO. 2 200 /KOL/201 7 ASSESSMENT YEAR: 201 1 - 12 SMT. NILAM KESHAN . .... APPELLANT 12, SIR HARIRAM GOENKA STREET GROUND FLOOR KOLKATA 700 001 [ PAN : AFXPK 8152 P ] I.T.O. WARD - 51 ( 4 ), KOLKATA ... . .. RESPONDENT UTTARAPAN COMPLEX ULTADANGA KOLKATA 700 054 APPEARANCES BY: SHRI AMIT JALAN, AR , APPEARED ON BEHALF OF THE ASSESSEE. SHRI RANU BISWAS , ADDL. CIT, SR. DR, APPEARING ON BEHALF OF THE REVENUE DATE OF CONCLUDING THE HEARING : APRIL 1 8 TH , 201 8 DATE OF PRONOUNCING THE ORDER : MAY 16 TH , 201 8 O R D E R PER J. SUDHAKAR REDDY : - THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 1 3 , KOLKATA, (HEREINAFTER THE LD. CIT(A)), DT. 31 /0 7 /2017, PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), RELATING TO ASSESSMENT YEAR 2011 - 12 . 2. THE ASSESSEE IS AN INDIVIDUAL AN D IS ENGAGED IN THE BUSINESS OF RETAIL AND WHOLESALE TRADE OF THREAD AND YARN. SHE FILED HER RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION ON 07/09/2011, DECLARING TOTAL INCOME OF RS.6,39,540/ - . THE FIRST ISSUE THAT ARISES BEFORE ME FOR ADJU DICATION IS WHETHER THE DISALLOWANCE MADE BY THE ASSESSING OFFICER ON ACCOUNT OF COMMISSION EXPENSES, OTHER EXPENSES ON ADHOC BASIS AS SUSTAINED BY THE LD. CIT(A) IS CORRECT IN FACTS AND ON LAW. 3. AFTER HEARING RIVAL CONTENTIONS, I FIND THAT THE ASSESSEE CLAIMED THAT HE HAD PAID AN AMOUNT OF RS.18,03,600/ - AS COMMISSION DURING THE YEAR. THE ASSESSING OFFICER DISALLOWED AN AMOUNT OF RS.3,58,400/ - , BEING COMMISSION PAID TO SHRI RAJESH KOCHAR AND A.K. SURANA & CO. THE ASSESSEE HAS SUBMITTED SUPPORTING EVIDEN CE FOR THESE PAYMENTS BY WAY OF COPIES OF BILLS RECEIVED FROM THESE PARTIES. 2 I.T.A. NO. 2200/KOL/2017 ASSESSMENT YEAR: 2011 - 12 SMT. NILAM KESHAN THE PAYMENTS WERE MADE THROUGH BANKING CHANNELS AND TAX WAS DEDUCTED AT SOURCE. THE ASSESSING OFFICER AT THE TIME OF ASSESSMENT ISSUED NOTICE U/S 133(6) OF THE ACT, TO THESE PARTI ES AND THESE PARTIES HAVE REPLIED TO THE SAME CONFIRMING THE TRANSACTIONS. THE ONLY GROUND ON WHICH THE ASSESSING OFFICER DISALLOWED THE CLAIM OF THE ASSESSEE WAS THAT HE DEPUTED AN INSPECTOR AND THE INSPECTOR COULD NOT MEET THESE TWO PARTIES. THE ASSESSEE SUBMITTED DEATH CERTIFICATE OF THE PROPRIETOR OF A.K. SURANA & CO., BUT THIS HAS NOT BEEN APPRECIATED BY THE DEPARTMENT. THE ASSESSEE EXPLAINED THAT IN THE CASE OF RAJESH KOCHAR, HE WAS OUT OF STATION WHEN THE INSPECTOR WENT TO MEET HIM. THIS ASPECT WAS A LSO NOT BELIEVED BY THE DEPARTMENT AND THE ADDITION WAS MADE. 3.1. ON THESE FACTS AND CIRCUMSTANCES, I AM OF THE CONSIDERED VIEW THAT THE ASSESSEE HAS DISCHARGED THE BURDEN OF PROOF THAT LA Y ON H I M AND HAS PRODUCED ALL POSSIBLE EVIDENCE IN SUPPORT OF THE CLAIM THAT COMMISSION HAS BEEN PAID TO THESE TWO PERSONS. HENCE WE ALLOW THIS GROUND AND DIRECT THE ASSESSING OFFICER TO DELETE THE DISALLOWANCE OF RS.3, 58,400/ - . 4. THE SECOND ISSUE IS ON THE ADHOC DISALLOWANCE OF 10% OF THE EXPENDITURE. 4.1. THE ASSESSEE RELIES ON THE DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF GAUTAM KHANNA VS. INCOME TAX OFFICER IN ITA NO. 45/KOL/2013, ASSESSMENT YEAR DT. 2008 - 09, ORDER DT. 31 ST JULY, 2014. 4.1.1. THE LD. D/R SUBMITS THAT THE EXPENSES WERE MADE IN C ASH AND ARE SUPPORTED BY SELF - MADE VOUCHERS WHICH ARE NOT VERIFIABLE. HE ALSO SUBMITS THAT THE EXPENDITURE CANNOT BE STATED AS HAVING BEEN INCURRED WHOLLY FOR THE PURPOSE OF BUSINESS OF THE ASSESSEE. 4.2. AFTER HEARING RIVAL CONTENTIONS, I AM OF THE CONSID ERED OPINION THAT THE ADHOC DISALLOWANCE OF 5% OF THE CASH EXPENDITURE CLAIMED WOULD MEET THE INTEREST OF JUSTICE. ACCORDINGLY, THE ASSESSEE GETS A RELIEF OF 5%. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART. KOLKATA, THE 1 6 T H DAY OF MA Y , 201 8 . S D / - [ J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER DATED : . 0 5 .201 8 {SC SPS} 3 I.T.A. NO. 2200/KOL/2017 ASSESSMENT YEAR: 2011 - 12 SMT. NILAM KESHAN COPY OF THE ORDER FORWARDED TO: 1 . SMT. NILAM KESHAN 12, SIR HARIRAM GOENKA STREET GROUND FLOOR KOLKATA 700 001 2. I.T.O. WARD - 51(4), KOLKATA UTTARAPAN COMPLEX ULTADANGA KOLKATA 700 054 3. CIT(A) - 4. CIT - , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D .D.O. ITAT, KOLKATA BENCHES