SMT. SHACHI AGARWAL, Jaipur V. JCIT, Jaipur

ITA 272/JPR/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2098 (ITAT-JAIPUR)
• Duration Of Justice: 4 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-05-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 13-03-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AJAY MALIK JCIT DHK
• Assessee Lawyers: S K SHARMA
• Section: 143(3); 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D L NL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA- @ ITA NO. 272/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 SMT. SHACHI AGARWAL PLOT NO. 12, RAMESWAR DHAM, OPP. KEDIA PALACE, MURLIPURA, JAIPUR CUKE VS. JOINT COMMISSIONER OF INCOME TAX CIRCLE-04, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. A GPPA5840F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.K.SHARMA (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI AJAY MALIK (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 11/05/2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 18/05/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT (A)-2, JAIPUR DATED 29.01.2013 PERTAINING TO ASSESSMENT YE AR 2009-10. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. IN HOLDING THAT ASSESSEE COULD NOT PROVED THAT THERE WAS AN AGREEMENT FOR SALE OF RESIDENTIAL HOUSE AS THERE IS NO SUCH ENTRY IN CASH BOOK OR ELSEWHERE IN ACCOUNTS BOOK AND COUL D NOT PRODUCED SHRI RAM BHAROSI MEENA AND THEREBY CONFIRM ING THE ADDITION OF RS. 5,00,000/- MADE UNDER SECTION 68 OF INCOME TAX ACT, 1961. 2. IN CONFIRMING THE DISALLOWANCE OF RS. 8,89,323 W HICH WAS COMMISSION PAID TO FOREIGNERS MRS. NAM GI OK AND MR . KIM YOUNG HO ON THE GROUND THAT NO TDS WAS DEDUCTED UND ER SECTION 40(A)(I) OF THE INCOME TAX ACT. 2.1 IN NOT CONSIDERING THE BOARD CIRCULAR NO. 786 DATED 7 TH FEBRUARY, 2000 [(2000)158 CTR (ST) 61] ISSUED BY CB DT WHICH 2 ITA NO. 272/JP/2013 SMT. SHACHI AGARWAL VS. JOINT COMMISSIO NER OF INCOME TAX WAS WITHDRAWN VIDE CIRCULAR NO. 7 OF 22 ND OCTOBER, 2009 AND AS SUCH, COMMISSION PAID UPTO 22 ND OCTOBER 2009 WAS ALLOWABLE. 2.2 THE COMMISSION WAS PAID TO FOREIGN NATIONALS O UTSIDE INDIA AND THEREFORE, PAYMENT WAS NOT CHARGEABLE TO TAX IN THE HANDS OF NON-RESIDENT RECEIPT AS HELD BY ITAT MUMBA I BENCH IN THE CASE OF ACIT VS. ANCHOR HEALTH & BEAUTY CARD (P ) LTD. (2012) 143 TTJ 566 (MUM) AND ITAT JAIPUR BENCH IN T HE CASE OF ACIT VS. MODERN INSULATORS LTD. AM (2011) 140 TT J (JP) 715. 3. THE APPELLANT RESERVES THE RIGHT TO ADD, ALTER, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL BEFORE HEARING. 2. BRIEFLY STATED THE FACTS ARE THAT THE CASE OF TH E ASSESSEE WAS PICKED UP FOR ASSESSMENT AND THE ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 13.12.2011. WHILE FRAMING THE ASSESSMENT, ASSESSING OFFICER MADE ADDI TIONS ON ACCOUNT OF UNEXPLAINED CASH U/S 68 OF THE INCOME TAX ACT, 1961 , AND DISALLOWANCE MADE ON ACCOUNT OF NON DEDUCTION OF TAX ON COMMISSION PAID AND DISALLOWANCE OF DEPB CLAIMED. 3. AGGRIEVED BY THIS, THE ASSESSEE PREFERRED AN APP EAL BEFORE LD. CIT (A), WHO AFTER CONSIDERING THE SUBMISSIONS, PARTLY ALLOWED T HE APPEAL DELETING THE AMOUNT ON ACCOUNT OF DISALLOWANCE OF CREDIT AND REDUCED THE A DDITIONS MADE ON ACCOUNT OF DISALLOWANCE MADE U/S 40 (IA) OF THE ACT FROM RS. 1 6,48,510/- TO 8,89,323/-. FURTHER AGGRIEVED, THE ASSESSEE HAS PREFERRED THE PRESENT A PPEAL. 4. APROPOS GROUND NO. 1, THE LD. COUNSEL FOR THE AS SESSEE REITERATED THE SUBMISSIONS AS MADE BEFORE THE LD. CIT (A) AND SUBM ITTED THAT THE LD. CIT (A) WAS NOT JUSTIFIED IN MAKING THE ADDITION. HE FURTHER RE ITERATED THE SUBMISSION AS MADE IN THE WRITTEN SUBMISSION. HE SUBMITTED THAT BEFORE AO HE HAD PRODUCED PHOTO COPY OF SALE AGREEMENT CORRESPONDENCE LETTERS/ NOTICES COPY OF RATION CARD OF SHRI RAM 3 ITA NO. 272/JP/2013 SMT. SHACHI AGARWAL VS. JOINT COMMISSIO NER OF INCOME TAX BHAROSI MEENA. HE SUBMITTED THAT WHATEVER HE COULD FURNISH IN SUPPORT OF THE CLAIM THAT THE AMOUNT OF RS. 5,00,000/- WAS RECEIVED FROM SHRI RAM BHAROSI MEENA AS ADVANCE WAS FURNISHED TO THE AUTHORITIES BELOW. HE DREW OUR ATTENTION TO THE EXTRACT OF CASH BOOK ENTRY OF RS. 5,00,000/- DATED 06.01.20 09. HE SUBMITTED THAT THE FINDING OF LD. CIT(A) IS CONTRARY TO THE RECORDS. 5. ON THE CONTRARY, THE LD. DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE LD. CIT (A) HAS PASSED REASONED ORDER. HE SUBMITTED THAT INCUMBENT WAS UPON THE ASSESSEE TO PROVE THE GENUIN ENESS OF TRANSACTIONS IDENTITY AND CREDIT WORTHINESS OF THE CREDITOR. 6. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE MAT ERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. WE FIND THAT IN SUPPORT OF THE CLAIM, THE ASSESSEE HAS FURNISHED COPY OF THE SALE AGREEMENT NOTICES ISSUED BY THE ADVOCATES AND ALSO THE EXTRACT OF CASH BOOK WHEREIN A TRANSACTION DATED 06.01.2009 IS REFLECTED. HOWEVER WE FIND THAT LD. CIT(A) HAS STATED THAT THERE IS NO BALANCE IN CASH BOOK FOR INTRODUCTION OF RS. 5,00,000/-.THE CA SE OF THE ASSESSEE IS THAT THIS AMOUNT WAS RECEIVED AS ADVANCE FROM SHRI RAM BHAROS I MEENA, A COPY OF THE SALE AGREEMENT DATED 06.01.2009 IS ENCLOSED IN PAPER BO OK ACKNOWLEDGE THE ADVANCE THEREFORE, IN OUR CONSIDERED VIEW, LD. CIT(A) OUGHT TO HAVE VERIFIED THE VERACITY OF SUCH CLAIM BY SUMMONING SHRI RAM BHAROSI MEENA. THE REFORE, WE DEEM IT PROPER IN THE INTEREST OF JUSTICE TO RESTORE THIS ISSUE TO TH E FILE OF THE ASSESSING OFFICER TO DECIDE THE ISSUE AFRESH IN VIEW OF THE WRITTEN SUBM ISSIONS AND EVIDENCES FILED BY THE ASSESSEE AND ALSO MAKE AN ENQUIRY BY SUMMONING SHRI RAM BHAROSI MEENA, THE ALLEGED PURCHASER OF THE PROPERTY. THIS GROUND OF T HE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4 ITA NO. 272/JP/2013 SMT. SHACHI AGARWAL VS. JOINT COMMISSIO NER OF INCOME TAX 7. THE GROUND NO. 2 (2.1 TO 2.2) OF THE ASSESSEE I S REGARDING CONFIRMING THE DISALLOWANCE OF RS. 8,89,323/-. AS REGARDS THE COMM ISSION MADE TO THE FOREIGN NATIONAL, THE LD. COUNSEL FOR THE ASSESSEE REITERAT ED THE SUBMISSIONS MADE BEFORE THE LD. CIT (A). THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE SUBMITTED A COPY OF THE BILLS RELATING TO COMMISSIO N BEFORE THE ASSESSING OFFICER. FOR THE SAKE OF THE IDENTITY, THE COPY OF PASSPORT WAS SUBMITTED TO THE ASSESSING OFFICER. HE RELIED ON THE DECISION OF HONBLE DELH I HIGH COURT IN THE CASE REPORTED AT 246 CTR (DEL) 40 , AND ITAT JAIPUR BENCH DECISION IN THE CASE OF ACIT VS. MODERN INSULATORS LTD. A.M (2011) 140 TTJ (JP) 715 . 8. ON THE CONTRARY, THE LD. D/R SUPPORTED THE ORDER S OF THE AUTHORITIES BELOW. 9. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE MAT ERIAL AVAILABLE ON RECORD AND GONE THROUGH ORDERS OF THE AUTHORITIES BELOW. T HE ASSESSEE HAS FURNISHED BILLS OF PAYMENT OF COMMISSION DEMONSTRATING THAT THE COM MISSION WAS PAID TO FOREIGN NATIONAL. IT IS ALSO STATED THAT THE OTHER PAYMENT WAS MADE TO THE INDIAN NATIONAL WHOSE SERVICES WAS TAKEN FOR THE PURPOSE OF TRANSLA TION. IT IS THE CASE OF THE ASSESSEE THAT THE LD. CIT(A) HAS ACCEPTED THE COMMI SSION PAID TO THE TRANSLATOR ON WHICH TAX WAS DEDUCTED BUT HAS NOT ACCEPTED THAT TH E PAYMENT TO THE FOREIGN NATIONAL. WE FIND THAT THE ASSESSEE HAS FURNISHED I NVOICE RAISED BY THE FOREIGN NATIONAL IN SUPPORT OF THE SERVICES RENDERED BY THE M. HOWEVER, THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE RELATING TO THE NATURE OF SE RVICE RENDERED BY THE FOREIGN NATIONALS OUTSIDE INDIA. THE ASSESSEE HAS NOT PRODU CED ANY EVIDENCE PROVING, EMPLOYMENT AND RENDERING OF SERVICE. IN THE ABSENCE OF SUCH EVIDENCE, IT IS NOT ESTABLISHED THAT ANY SERVICE WAS RENDERED. THEREFOR E, WE DEEM IT PROPER IN THE 5 ITA NO. 272/JP/2013 SMT. SHACHI AGARWAL VS. JOINT COMMISSIO NER OF INCOME TAX INTEREST OF JUSTICE TO RESTORE THIS ISSUE TO THE FI LE OF AO FOR DECISION AFRESH. THE AO WOULD GIVE SUFFICIENT OPPORTUNITIES TO THE ASSESSEE FOR PLACING EVIDENCE ON RECORD. 10. THE GROUND NO. 3, THIS GROUND IS GENERAL IN NATURE AND REQUIRES NO ADJUDICATION. 11. THIS GROUND OF THE ASSESSEE IS PARTLY ALLOWED F OR STATISTICAL PURPOSES. 12. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18/05/2017 SD/- SD/- ( HKKXPUN ( DQY HKKJR ) (BHAG CHAND ) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 18/05/2017 GANESH KUMAR VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SMT. SHACHI AGARWAL 2. THE RESPONDENT JOINT COMMISSIONER OF INCOME TA X, JAIPUR 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE ( ITA NO. 272/JP/2013 ) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR