Shri Hemant Kumar Poddar, Ranchi V. ACIT CIR-3, Ranchi

ITA 228/RAN/2016

• Counselvise Citation: [2016] 130 COUNSELVISE.COM (IT) 9987 (ITAT-RANCHI)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 18-07-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CHAUDHURY ORAM
• Assessee Lawyers: S S.K.PODARDEVESH PODAR
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 43

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI SMC BENCH, RANCHI BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO. 228/RAN/2016 ASSESSMENT YEAR : 2012 - 2013 SRI HEMANT KUMAR PODDAR, 3P, SRI GOPAL COMPLEX, COURT ROAD, RANCHI. VS. ACIT, CIRCLE - 3, RANCHI PAN/GIR NO. AEVPP 8212 Q (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : S/ SHRI S.K.PODAR /DEVESH PODAR , AR REVENUE BY : SHRI CHAUDHURY ORAM , DR DATE OF HEARING : 7 /12/ 2016 DATE OF PRONOUNCEMENT : 7 /12/ 2016 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGA INST THE ORDER OF CIT(A) - RANCHI , DATED, FOR THE ASSESSMENT YEAR . 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE LD CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.66,607/ - MADE BY THE ASSESSING OFFICER BY MAK ING DISALLOWANCE OF EXPENSES CLAIMED OF RS.3,33,034 / - AGAINST COMMISSION RECEIVED AMOUNTING TO RS.8,85, 229 / - . 3. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER 2 ITA NO. 228/RAN/2016 ASSESSMENT YEAR :2012 - 2013 OBSE RVED THAT THE ASSESSEE HAS CL AIMED EXPENDITURE OF RS.3,33,034 / - . ON A QUERY FROM THE ASSESSING OFFICER, THE ASSESSEE REPLIED THAT THE EXPENDITURE WAS INCURRED FOR E ARNING COMMISSION OF RS.8,85,229 / - . HE OBSERVED THAT THE ASSESSEE HAS SHOWN COMMISSION RECE IVED FROM M/S. TIRUPATI CARBONS & CH EMICALS PVT LTD., OF RS.8,85,230 / - , IN WHICH HE IS ALSO A DIRECTOR. HE OBSERVED THAT THE ASSESSEE HAS RECEIVED AN AMOUNT OF RS.3,60,000/ - AS SALARY. THE ASSESSEE HAS NOT SHOWN ANY DETAILS REGARDING EXPENDITURE CLAIMED. HE SIMPLY SUBMITTED THAT THE EXPENSES ARE MADE ON TRAVELLING OF PERSONS TO BOOK ORDERS AND ALSO ON SALES PROMOTION. NO BILLS AND VOUCHERS WERE FURNISHED BY THE ASSESSEE. SINCE THE ASSESSEE DID NOT PRODUCE ANY DOCUMENTARY PROOF I.E. BILLS AND VOUCHERS, ETC. REGARDING THE EXPENSES MADE FOR EARNING COMMISSION INC OME, 20% EXPENSES I.E. RS.66,607 / - WAS DISALLOWED. 4. ON APPEAL, LD CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 5. BEFORE ME, LD A.R. OF THE ASSESSEE FURNISHED A CHART AND S UBMITTED THAT IT WILL BE OBSERVED THAT IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR 2010 - 2011, THE ASSESSEE HAD CL AIMED EXPENDITURE OF RS.2,08,424 / - FOR EARNING COMMISSION INCOME OF RS.3,14,876/ - ,WHICH WORKS OUT TO 33.81 %. IN THE ASSESSMENT YEAR 2011 - 2012 , THE ASSESSEE HAD CLAIMED EXPENSES OF RS.2,20,000 / - FOR EARNING COMMISSION INCOME OF RS.3,82,400/ - , WHICH WORKS OUT TO 42.46 %. HE ARGUED THAT SAME HAS BEEN ACCEPTED BY THE DEPARTMENT. THEREFORE, FOLLOWING THE PRECEDENT FOR 3 ITA NO. 228/RAN/2016 ASSESSMENT YEAR :2012 - 2013 THE YEAR UNDER APPEAL 43 % OF THE COMMISSION RECEIPTS SHOULD BE ALLOWED AS EXPENSES TO THE ASSESSEE. 6. ON THE OTHER HAND, LD D.R. RELIED ON ORDERS OF LOWER AUTHORITIES. 7. I FIND THAT LD D.R. HAS NOT CONTROVERTED THE ABOVE SUBMISSION OF LD A.R. OF THE ASSESSEE THAT IN T HE IMMEDIATELY PRECEDING ASSESSMENT YEARS 2010 - 2011 AND 2011 - 12, THE ASSESSEE HAD CLAIMED EXPENDITURE AT 33.81 % AND 42.46 % FOR EARNING COMMISSION, WHICH WAS ALLOWED IN THE ASSESSMENT. THE ARGUMENT OF THE ASSESSEE IS THAT THE CONSISTENCY SHOULD BE MAINTA INED DURING THE YEAR UNDER APPE AL AND 43% OF THE COMMISSION RECEIPTS SHOULD BE ALLOWED TO THE ASSESSEE AS EXPENDITURE. 8. I FIND THAT THE HONBLE SUPREME COURT IN THE CASE OF MAHARAO VIMSEN OF KOTA VS CIT, IN CIVIL APPEAL NO. 2812 OF 2015 ORDER DAT ED 5 TH DECEMBER, 2016 HAS HELD THAT PRINCIPLE OF RESJUDI - CATA DOES NOT APPLY TO THE INCOME TAX PROCEEDINGS AND THE DEPARTMENT SHOULD NOT AGITATE THE MATTERS WHICH HAVE ATTAINED FINALITY IN EARLIER YEARS. LD D.R. HAS NOT POINTED OUT ANY CHANGE IN THE FACTS IN THE PRESENT YEAR IN APPEAL PRECEDENT OF EARLIER YEARS. THEREFORE, I MODIFY THE ORDER OF LD CIT(A) AND DIRECT THE ASSESSING OFFICER TO ALLOW EXPENDITURE FO R EARNING COMMISSION INCOME @ 43 % OF THE COMMISSION RECEIPT OF THE ASSESSEE. THUS, GROUNDS OF TH E ASSESSEE ARE PARTLY ALLOWED. 4 ITA NO. 228/RAN/2016 ASSESSMENT YEAR :2012 - 2013 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRO NOUNCED IN THE OPEN COURT ON 7 /12/2016 IN THE PRESENCE OF PARTIES. SD/ - (N.S SAINI) A CCOUNTANT MEMBER RANCHI ; DATED 7 /12 /2016 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PS, ITAT, CAMP AT RANCHI 1. THE APPELLANT : SRI HEMANT KUMAR PODDAR, 3P, SRI GOPAL COMPLEX, COURT ROAD, RANCHI 2. THE RESPONDENT. ACIT, CIRCLE - 3, RANCHI 3. THE CIT(A) RANCHI 4. CIT , RANCHI 5. DR, ITAT, RANCHI 6. GUARD FILE. //TRUE COPY//