The ACIT-Circle-2, Surat V. Shri Ankit Chandramohan Maheshwari, Surat

ITA 2675/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6636 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 12-05-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 29-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHAVNESH KULSHRESTHA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI, JM AND A. K. GARODIA , AM) ITA NO.2675/AHD/2009 A. Y.: 2006-07 THE A. C. I. T.,CENRCLE-2, ROOM NO.110, 1 ST FLOOR, AAYAKAR BHAVAN, MAJURA GATE, SURAT VS SHRI ANKIT CHANDRAMOHAN MAHESHWARI, PROP. M/S. KOTHARI IMPEX, 202-D, INDO WORLD COMMERCIAL COMPLEX, B/H. KDHIWALA SCHOOL, RING ROAD, SURAT PA NO. AFGPM 0328 G (APPELLANT) (RESPONDENT) DEPARTMENT BY SHRI BHAVNESH KULSHRESTHA, SR. DR ASSESSEE BY SHRI HARDIK VORA, AR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A) II, SURAT DATED 3-06-2009 FOR ASSESSMENT YEAR 2006-07, CHALLENGING THE DELETION O F ADDITION OF RS.10,04,700/- ON ACCOUNT OF COMMISSION CLAIMED TO HAVE BEEN PAID TO BROKERS. 2. THE AO OBSERVED THAT THE ASSESSEE CLAIMED BROKER AGE AND COMMISSION AND THE ASSESSEE FAILED TO FURNISH THE R EQUIRED EVIDENCES. THE ASSESSEE HOWEVER, PRODUCED COPIES OF CREDIT NOTES ISSUED BY THE BROKERS, THEIR LEDGER ACCOUNTS AND TH EIR RETURNS OF INCOME. ACCORDING TO THE AO THERE WAS NO JUSTIFICAT ION REGARDING RATE OF COMMISSION PAID BETWEEN 1.5% TO 2%. MOST OF THE BROKERAGES ITA NO.2675/AHD/2009 ACIT, CIRCLE-2, SURAT VS SHRI ANKIT CHANDRAMOHAN MA HESHWARI. 2 WERE PAID TO THE FAMILY MEMBERS. THE ASSESSEE SUBMI TTED THAT SIMILAR DISALLOWANCE WAS MADE IN THE PRECEDING ASSE SSMENT YEARS 2004-05 AND 2005-06 IN WHICH THE LEARNED CIT(A) DEL ETED THE ADDITION. THE AO OBSERVED THAT THE DECISION OF THE LEARNED CIT(A) IS CONTESTED BEFORE THE TRIBUNAL, THEREFORE, IN ORDER TO KEEP THE ISSUE ALIVE AGAIN DISALLOWANCE WAS MADE BY RESTRICTING TO 0.5%. IT WAS SUBMITTED BEFORE THE LEARNED CIT(A) THAT COMPLETE D ETAILS WERE FILED REGARDING BROKERAGE PAID ALONG WITH CONFIRMATION OF THE PARTIES AND THEIR IDENTITY AND BANK STATEMENTS. COPIES OF THE C REDIT NOTES WERE ALSO FILED. THE BROKERS HAD NOT ONLY PROCURED ORDER S BUT ALSO HELPED TO RECOVER THE PAYMENTS. IT WAS SUBMITTED THAT SIMI LAR COMMISSION AND BROKERAGE WERE PAID IN EARLIER YEARS ON WHICH T HE LEARNED CIT(A) DELETED THE ENTIRE ADDITION IN ASSESSMENT YEARS 200 4-05 AND 2005- 06. THE LEARNED CIT(A) CONSIDERING THE FACTS OF THE CASE NOTED THAT THE LEARNED CIT(A) DELETED THE ADDITION IN THE PREC EDING ASSESSMENT YEARS AND THE AO SOUGHT TO MAKE DISALLOWANCE MAINLY TO KEEP THE ISSUE ALIVE. IT WOULD MEAN THAT THE AO DID NOT PUT ANY EFFORTS TO VERIFY THE FACTS. THE AO SUMMARILY REJECTED THE CLAIM OF T HE ASSESSEE WITHOUT EXAMINING THE DETAILS. THE LEARNED CIT(A) N OTED THAT LEDGER ACCOUNT OF THE BROKERS, THEIR COMPLETE ADDRESS ALON G WITH THEIR CONFIRMATION, COPIES OF THE BANK ACCOUNT AND COPIES OF THE CREDIT NOTES HAVE BEEN FURNISHED, THERE WAS NO REASON FOR THE AO TO OBSERVE THAT NOTHING HAS BEEN FURNISHED BEFORE HIM. THE LEARNED CIT(A), THEREFORE, NOTED THAT ADDITION IS CLEARLY U NJUSTIFIED AND ACCORDINGLY DELETED THE ADDITION. ITA NO.2675/AHD/2009 ACIT, CIRCLE-2, SURAT VS SHRI ANKIT CHANDRAMOHAN MA HESHWARI. 3 3. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE OUT SET SUBMITTED THAT REVENUE PREFERRED APPEAL BEFORE THE TRIBUNAL I N THE CASE OF THE SAME ASSESSEE IN ASSESSMENT YEARS 2004-05 AND 2005- 06 IN ITA NO. 3655/AHD/2008 AND ITA NO.3558/AHD/2008 AND THE DEPARTMENTAL APPEAL ON THIS ISSUE HAS BEEN DISMISSED. COPY OF TH E ORDER DATED 28-2-2011 IS FILED ON RECORD. LEARNED DR DID NOT DI SPUTE THE ABOVE FACT. 4. ON CONSIDERATION OF THE ABOVE FACTS, WE DO NOT F IND ANY MERIT IN THE DEPARTMENTAL APPEAL. COMPLETE DETAILS WERE FILE D BEFORE THE AO AS PER OBSERVATION OF THE LEARNED CIT(A). THE AO IN STEAD OF EXAMINING THE EVIDENCE BEFORE HIM NOTED THAT ADDITI ON SHALL HAVE TO BE MADE IN ORDER TO KEEP THE ISSUE ALIVE BECAUSE TH E MATTER IS PENDING BEFORE THE TRIBUNAL. NOW, THE TRIBUNAL HAS DISMISSED THE DEPARTMENTAL APPEAL. ACCORDINGLY, THERE IS NO MERIT IN THE DEPARTMENTAL APPEAL. SAME IS ACCORDINGLY DISMISSED. 5. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 13-05-2011 SD/- SD/- (A. K. GARODIA) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 13 -05-2011 LAKSHMIKANT/- ITA NO.2675/AHD/2009 ACIT, CIRCLE-2, SURAT VS SHRI ANKIT CHANDRAMOHAN MA HESHWARI. 4 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD