Syndicate Management Services Pvt.Ltd., Ahmedabad V. The Income tax Officer,Ward-8(2), Ahmedabad

ITA 2435/AHD/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80309 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-08-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 31-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B KULSHRESTHA SR DR
• Assessee Lawyers: N C AMIN
• Keywords: Condonation of delay

Judgement Text

, , , , A, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, A BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.2435/AHD/2012 [ASSTT.YEAR : 2003-2004] SYNDICATE MANAGEMENT SERVICES P. LTD. 103, MRUNAL APARTMENT DEEPAKUNJ SOCIETY, PALDI AHMEDBAAD. PAN : AAFCS 4745 N /VS. DCIT, CENT.CIR.1(2) AHMEDABAD. ( (( (-. -. -. -. / APPELLANT) ( (( (/0-. /0-. /0-. /0-. / RESPONDENT) 1& 2 3 )/ ASSESSEE BY : SHRI N.C. AMIN + 2 3 )/ REVENUE BY : SHRI B. KULSHRESTHA, SR.DR 5 2 &(*/ DATE OF HEARING : 26 TH AUGUST, 2014 678 2 &(*/ DATE OF PRONOUNCEMENT : 05/09/2014 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASST.YEAR 2003-2004 IS DIRECTED AGAINST THE ORD ER OF THE CIT(A). 2. THERE IS A DELAY OF ONE DAY IN FILING THE PRESEN T APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE HAS FILED APPLICATION FOR C ONDONATION OF DELAY. WE ITA NO.2435/AHD/2012 -2- HAVE HEARD PARTIES ON THE ISSUE OF CONDONATION OF D ELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL. IN THE FACTS OF THE CASE, WE ARE OF THE VIEW THAT IT IS A FIT CASE FOR CONDONATION OF DELAY IN FILING THE PRE SENT APPEAL BEFORE THE TRIBUNAL, AND WE CONDONE THE DELAY OF ONE DAY ACCOR DINGLY. 3. THE GROUNDS OF APPEAL OF THE ASSESSEE ARE AS UND ER: 1. THE LD.CIT(A) HAS ERRED BOTH IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING AN ADDITIONS OF RS.3,19,252/- HO LDING IT AS COMMISSION INCOME. 2. ON THE PECULIAR FACTS AND CIRCUMSTANCES FO THE C ASE OF THE APPELLANT THE ADDITIONS OF RS.3,19,252/- CONFIRMED BY CIT(A) DESERVES TO BE DELETED. 3. THAT THE APPELLANT AHS NEITHER RECEIVED ANY INCO ME AMOUNTING TO RS.3,19,252/- TAXED BY LEARNED AO AND CONFIRMED BY CIT(A) WHICH DESERVES TO BE DELETED. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE IS IN SECOND ROUND OF LITIGATION BEFORE THE TRIBUNAL, AND IN THE FIRST ROUND OF LITIGATION, THE TRIBUNAL HAS RESTORED THE ORDER OF THE CIT(A) TO THE FILE OF THE AO AND HAS DIRECTED THE AO THAT IF THE EVIDENCE IS STILL IN THE CUSTODY OF THE AUTHORITY REFERRED THEREIN, THE AO IS DIRECT ED TO EXERCISE HIS POWER AS ENVISAGED UNDER THE PROVISIONS OF LAW AND DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVING PROPER OPPORTUNITY TO THE ASSESSEE. HE SUBMITTED THAT THE DIRECTIONS OF THE TRIBUNAL WERE NOT COMPLIED WITH BY THE AO AND THE CIT(A). HE SUBMITTED THAT THE AMOUNT IN DISPUTE OF RS.3,19,252/- WAS NOT A COMMISSION INCOME OF THE AS SESSEE, AND IS IN FACT THE AMOUNT REPRESENTING THE REPAYMENT BY M/S.HOME T RADE LIMITED. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRED TO THE CO PY OF LEDGER ACCOUNT OF HOME TRADE LTD. IN THE BOOKS OF THE ASSESSEE FOR TH E RELEVANT PERIOD WHEREIN THE OPENING BALANCE AS ON 1.4.2002 WAS RS.1 ,21,11,166/- AND THE ITA NO.2435/AHD/2012 -3- PAYMENTS WERE RECEIVED OUT OF THE OPENING BALANCES IN THE ACCOUNT. THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF THE LEARN ED COUNSEL FOR THE ASSESSEE. HE REFERRED TO PARA 2.3 ONWARDS OF THE APPELLATE ORDER PASSED BY THE CIT(A) AND SUBMITTED THAT THE DIRECTION OF T HE TRIBUNAL HAS BEEN COMPLIED WITH, AND THE ASSESSEE COULD NOT PROVE THA T THE AMOUNT IN DISPUTE WAS NOT A COMMISSION INCOME OF THE ASSESSEE. HE RE LIED ON THE ORDERS OF THE AO AND THE CIT(A). 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A), AND ALSO THE ORDER OF THE TRIBUN AL IN THE FIRST ROUND OF LITIGATION IN THE CASE OF THE ASSESSEE DATED 5.10.2 007 IN ITA NO.493/AHD/2007 FOR A.Y.2003-04. WE FIND THAT THER E IS NO MATERIAL BROUGHT ON RECORD ON BEHALF OF THE REVENUE TO SHOW THAT THE AMOUNT OF RS.3,19,252/- RECEIVED BY THE ASSESSEE REPRESENTS I TS COMMISSION INCOME FROM HOME TRADE PVT. LTD. THE ASSESSEE HAS SHOWN C OMMISSION INCOME OF RS.1,67,400 FROM HOME TRADE PVT. LTD. SEPARATELY . THE ASSESSEE HAS THROUGHOUT CLAIMED THAT IT IS A REPAYMENT OUT OF OP ENING BALANCE OF RS.1,21,11,166/-, AS IS EVIDENT FROM THE COPY OF LE DGER ACCOUNT OF HOME TRADE PVT. LTD. IN THE BOOKS OF THE ASSESSEE-COMPAN Y. WE FIND FORCE IN THE ARGUMENTS OF THE ASSESSEE THAT THE RELEVANT EVI DENCE BEING IN THE POSSESSION OF THE POLICE DEPARTMENT AND THE SUPERIN TENDENT OF POLICE HAS EXPRESSED THEIR INABILITY TO FULFILL THE ASSESSEES REQUEST AND EVEN THE REVENUE AUTHORITIES, ARMED WITH STATUTORY POWER COU LD NOT SECURE THE EVIDENCE TO DECIDE THE ISSUE, THE ASSESSEE COULD NO T BE MADE LIABLE TO PAY TAX, MERELY ON THE BASIS OF ASSUMPTION AND POSSIBIL ITY AND WITHOUT BRINGING ANY MATERIAL ON RECORD TO SUPPORT THE CASE OF THE REVENUE. IN THIS VIEW OF THE MATTER, WE HOLD THAT THE ADDITION MADE IS NOT SUSTAINABLE IN LAW, AND ACCORDINGLY THE GROUNDS OF THE APPEAL OF T HE ASSESSEE ARE ALLOWED. ITA NO.2435/AHD/2012 -4- 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD