M/s Shivam Marketing, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-1(2), RAJKOT-GUJARAT

ITA 254/RJT/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0233 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 22-07-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: TDS
• Section: 143(3); 201; 64

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT , , BEFORE SHRI RAJPAL YADAV , JUDICIAL MEMBER & SHRI WASEEM AHMED , ACCOUNTANT MEMBER ./ I.T.A. NO .254 /RJT/2016 ( / ASSESSMENT YEAR : 2008 - 0 9 ) M/S SHIVAM MARKETING , GUNDALA ROAD, GONDAL . / VS. ITO , WARD - 1(2 ) , RAJKOT. ./ ./ PAN/GIR NO. : A B BFS8088E ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : WRITTEN SUBMISSION / RESPONDENT BY : SHRI ANIL KUMAR , SR. D . R. / DATE OF HEARING 19 /09 /201 9 / DATE OF PRONOUNCEMENT 20 / 0 9 /201 9 / O R D E R PER WASEEM AHMED ACCOUNTANT M EMBER : THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMIS SIONER OF INCOME TAX (APPEALS) - 1 , AHMEDABAD [ LD. CIT(A) IN SHORT] OF DATED 24/01/2012 , ARISING IN THE MATTER OF ASSESSMENT ORDER PASSED UNDER S. 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER R EFERRED TO AS 'THE ACT') DAT ED 23/11/2010 RELEVANT TO ASSESSME NT YEAR S (A . Y . ) 2008 - 0 9 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN CONFIRMING ADDITION OF ITA NO. 254 /RJT / 201 6 A.Y. S 20 0 8 - 0 9 - 2 - RS. 2,64,502 / - , TREATING THE SAME AS UN - ACCOUNTED COMMISSION INCOME. THE ADDITION NEEDS DELETION. 2. WITHOUT PREJUDICE, THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN CONFIRMING ADDITION OF RS. 2,64,502/ - , TREATING THE SAME AS UN - ACCOUNTED COMMISSION INCOME. WITHOUT ALLOWING DEDUCTION OF EXPENDITURE THERE FROM. THE ADDITION NEEDS SUITABLE REDUCTION. 3. WITHOUT PREJUDICE, THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN CONFIRMING ENTIRE ADDITION OF RS. 2,64,502/ - TREATED BY THE LD. A.O. AND ADDED AT LOO%. THE ADDITION NEEDS SUITABLE REDUCTION. - 4. WITHOUT PREJUDICE, THE ASSESSMENT MADE IS BAD IN LAW AND DESERVES ANNULMENT. 5. WITHOUT PREJUDICE, NO ADEQUATE, SUFFICIENT AND REASONABLE OPPORTUNITY HAS BEEN PROVIDED. THE ASSESSMENT NEEDS ANNULMENT. 6. THE APPELLANT C RAVES LEAVE TO ADD/ALTER/AMEND AND/OR SUBSTITUTE ANY OR ALL GROUND OF APPEAL BEFORE THE ACTUAL HEARING TAKES PLACE. T HE SOLITARY ISSUE RAISED BY THE ASSESSEE IS THAT THE LEARNED CIT (A) ERRED IN CONFIRMING THE ADDITION MADE BY THE AO FOR 2, 64 , 502 ON AC COUNT OF UNACCOUNTED COMMISSION INCOME. 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHIP FIRM AND ENGAGED IN THE BUSINESS OF DISTRIBUTORSHIP OF SANGHI CEMENT. THE AO DURING THE ASSESSMENT PROCEEDINGS FOUND THAT THE ASSES SEE HAS SHOWN COMMISSION INCOME IN ITS BOOKS OF ACCOUNTS AMOUNTING TO 14 , 47 , 430 ONLY WHEREAS AS PER THE TDS CERTIFICATE COMMISSION INCOME OF THE ASSESSEE COMES TO 17 , 11 , 932 ONLY. THUS THE DIFFERENCE OF 2, 64 , 502 WAS TREATED AS UNACCOUNTED COMMISSION INCO ME BY THE AO AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. ITA NO. 254 /RJT / 201 6 A.Y. S 20 0 8 - 0 9 - 3 - AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LEARNED CIT (A). 3. T HE ASSESSEE BEFORE THE LEARNED CIT (A) SUBMITTED THAT THE ENTIRE AMOUNT OF COMMISSION CANNOT BE TREATED AS INCOME ON ACCOUNT OF NON - RECONCILIATION OF THE AMOUNT SHOWN IN THE BOOKS VIZ A VIZ SHOWN IN THE TDS CERTIFICATE . ACCORDINGLY THE ASSESSEE OFFERED TO TAX THE PROFIT ELEMENT EMBEDDED IN SUCH COMMISSION AMOUNT. 4. HOWEVER THE LEARNED CIT (A) DISREGARDED THE CONTENTION OF THE ASSESSEE BY OBSERVING THAT THERE WAS NOT ANY PLAUSIBLE REASON FURNISHED BY THE ASSESSEE FOR THE DIFFERENCE IN THE AMOUNT OF COMMISSION. ACCORDINGLY, THE LEARNED CIT (A) CONFIRMED THE ORDER OF TH E AO. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT (A), THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE LEARNED AR BEFORE US FILED WRITTEN SUBMISSION STATING THAT THE LD. CIT - A SHOULD HAVE CONDONED THE DELAY IN FILING THE APPEAL OF THE ASSESSEE AND THE MATTER SHOULD HAVE BEEN DECIDED ON MERIT. 6. ON THE OTHER HAND THE LEARNE D DR VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 7. WE HAVE HEARD THE LEARNED DR AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THERE WAS DIFFERENCE IN THE AMOUNT OF C OMMISSION SHOWN BY THE ASSESSEE IN ITS BOOKS OF ACCOUNTS VIZ A VIZ THE AMOUNT SHOWN IN THE ITA NO. 254 /RJT / 201 6 A.Y. S 20 0 8 - 0 9 - 4 - TDS CERTIFICATE. THEREFORE THE AO MADE THE ADDITION ON ACCOUNT OF SUCH DIFFERENCE OF 2 , 64502.00. THE ASSESSEE BEFORE THE LEARNED CIT (A) HAS REQUESTED TO TAX THE PROFIT ELEMENT EMBEDDED IN SUCH COMMISSION INCOME. HOWEVER, THE LEARNED CIT (A) REJECTED THE PLEA OF THE ASSESSEE. 7.1 EVEN BEFORE US, THE LEARNED AR IN THE WRITTEN SUBMISSION HAS NOT RAISED ANY ARGUMENTS ON MERIT. AS SUCH , THE LEARNED AR BEFORE US PLEAD ED TO RESTORE THE MATTER TO THE FILE OF THE LEARNED CIT (A) FOR FRESH CONSIDERATION ON THE GROUND THAT THE ISSUE WAS NOT DECIDED ON MERIT. HOWEVER ON PERUSAL OF THE ORDER OF THE LEARNED CIT (A), WE NOTE THAT THE LEARNED CIT (A) HAS PASSED THE SPE AKING ORDE R REJECTING THE CLAIM OF THE ASSESSEE ON MERIT. THUS WE ARE NOT IMPRESSED WITH THE ARGUMENT OF THE LEARNED AR FOR THE ASSESSEE SUBMITTED IN THE WRITTEN SUBMISSION . 7.2 THE PLEA TAKEN BY THE ASSESSEE BEFORE THE LEARNED CIT (A) IS ALSO NOTE PLAUSIBLE I.E. TO TAX THE PROFIT ELEMENT EMBEDDED IN THE AMOUNT OF COMMISSION. IT IS BECAUSE THERE IS NO DETAIL AVAILABLE ON RECORD DEMONSTRATING THAT THERE WAS SOME DIRECT EXPENSE INCURRED AGAINST SUCH COMMISSION INCOME. THEREFORE, THERE CANNOT BE ANY QUESTION OF WORKIN G OUT ANY PROFIT ELEMENT OUT OF SUCH COMMISSION INCOME. 7.3 WE FURTHER NOTE THAT THE ASSESSEE HAS ALREADY CLAIMED ALL THE EXPENSES IN ITS PROFIT AND LOSS ACCOUNT AND THERE IS NO FURTHER SCOPE OF ALLOWING ANY EXPENSE AGAINST SUCH UNACCOUNTED COMMISSION IN COME. ITA NO. 254 /RJT / 201 6 A.Y. S 20 0 8 - 0 9 - 5 - THEREFORE WE DO NOT FIND ANY DEFECT IN THE ORDER OF THE AUTHORITIES BELOW. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 20 / 0 9 /201 9 - SD - - SD - ( ) ( ) (RAJPAL YADAV) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (TRUE CO PY) DATED 20 /09 /201 9 MANISH