The ACIT, Circle-8, Ahmedabad V. Unifrax India Ltd., Ahmedabad

ITA 2726/AHD/2011

• Counselvise Citation: 272620514 RSA 2011
• Duration Of Justice: 3 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-06-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 04-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: FALEE H BILIMORIA AR
• Section: 133(6)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ ././ ./ ITA NO. 2726/AHD/2011 / ASSESSMENT YEAR: 2007-08 ACIT, CIRCLE-8, AHMEDABAD V/S. UNIFRAX INDIA LTD. 30, OMKAR HOUSE, C.G. ROAD, AHMEDABAD PAN : AAACO 2313 B / // / (APPELLANT) ! ! ! ! / // / (RESPONDENT) REVENUE BY : SHRI DINESH SINGH, SR.DR. ASSESSEE(S) BY : SHRI FALEE H. BILIMORIA, AR '# $ %&'/ // / DATE OF HEARING : 04/06/2015 () $ %&' / // / DATE OF PRONOUNCEMENT: 19/06/2015 *+ *+ *+ *+/ // / O R D E R PER G.D. AGRAWAL, VICE PRESIDENT: THIS IS AN APPEAL FILED BY THE REVENUE AND IS DIREC TED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX(APPEALS )-XIV, AHMEDABAD DATED 05.08.2011, PERTAINING TO ASSESSMENT YEAR 200 7-08. 2. IN THIS APPEAL BY THE REVENUE FOLLOWING GROUNDS ARE RAISED :- 1. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XIV, A HMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWA NCE OF RS.39,78,025/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF SALES C OMMISSION EXPENSES. 2. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XIV, A HMEDABAD HAS ERRED IN LAW AND ON FACTS IN ADMITTING ADDITIONAL E VIDENCES IN VIOLATION OF RULE 46A. ITA NO. 2726/AHD/2011 ACIT V. UNIFRAX INDIA LTD FOR AY 2007-08 2 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XIV, AHMEDABAD OUGHT TO HAV E UPHELD THE ORDER OF THE ASSESSING OFFICER. 4. IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD. C OMMISSIONER OF INCOME- TAX (APPEALS)-XIV, AHMEDABAD MAY BE SET-A-SIDE AND THAT OF THE ORDER OF THE ASSESSING OFFICER BE RESTORED. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE CLAI MED A SUM OF RS.70,19,060/- AS COMMISSION EXPENSES. THE ASSESSIN G OFFICER FOUND THAT IN THE PRECEDING YEAR ALSO THE COMMISSION WAS DISALLOW ED. IN ORDER TO VERIFY THE GENUINENESS OF THE COMMISSION PAID, INFORMATION U/S 133(6) WAS ASKED FROM THE COMMISSION AGENTS. SOME OF THE COMMISSION AGENTS CONFIRMED THE RECEIPT OF COMMISSION. HOWEVER, SOME OF THE LETTER S SENT U/S 133(6) CAME BACK UNSERVED WITH THE POSTAL REMARKS LEFT. THAT THE ASSESSING OFFICER ASKED THE ASSESSEE TO SUBMIT THE CONFIRMATION OR AF FIDAVIT FROM THE COMMISSION AGENTS WHOSE LETTERS WERE RETURNED UNSER VED BY THE POSTAL AUTHORITIES. THE ASSESSEE EXPRESSED ITS INABILITY T O FURNISH EITHER THE CONFIRMATION OR THE AFFIDAVIT FROM THOSE AGENTS. IN VIEW OF THESE FACTS, THE ASSESSING OFFICER DISALLOWED THE SUM OF RS.39,78,08 5/- WHICH IS THE COMMISSION PAID TO THE AGENTS WHOSE LETTERS WERE RE TURNED UNSERVED BY THE POSTAL AUTHORITIES. THAT BEFORE THE CIT(A), IT IS CLAIMED BY THE ASSESSEE THAT THE CONFIRMATION OF ALL THE COMMISSION AGENTS WERE PRODUCED BEFORE THE ASSESSING OFFICER. THAT THE CLAIM OF THE ASSESSEE BEFORE THE CIT(A) WAS IN CLEAR CONTRAST TO THE FACTS RECORDED BY THE ASSESSI NG OFFICER. THE CIT(A) ACCEPTED THE ASSESSEES CONTENTION WITHOUT VERIFICA TION FROM THE RECORD. HE, THEREFORE, SUBMITTED THAT EITHER THE ORDER OF THE C IT(A) SHOULD BE REVERSED AND THAT OF ASSESSING OFFICER MAY BE RESTORED OR TH E MATTER MAY BE SENT BACK TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO THE ASSESSEE TO PRODUCE ALL THE CONFIRMATIONS BEFORE THE ASSESSING OFFICER. ITA NO. 2726/AHD/2011 ACIT V. UNIFRAX INDIA LTD FOR AY 2007-08 3 4. THE LD. COUNSEL FOR THE ASSESSEE REITERATED HIS SUBMISSION MADE BEFORE THE CIT(A) THAT ALL THE CONFIRMATIONS WERE P RODUCED BEFORE THE ASSESSING OFFICER. HE, HOWEVER, HAD NO OBJECTION IN SETTING ASIDE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER AND EXPRE SSED ASSESSEES WILLINGNESS TO AGAIN PRODUCE ALL THE CONFIRMATIONS AND THE NECE SSARY EVIDENCES RELATING TO THE COMMISSION AGENTS WHOSE LETTERS HAVE BEEN RE TURNED BACK BY THE POSTAL AUTHORITIES IF THE SAME ARE NOT AVAILABLE ON THE RECORD OF ASSESSING OFFICER. HE, HOWEVER, STATED THAT THE ASSESSING OF FICER HAS NOT MENTIONED THE NAME OF THE COMMISSION AGENTS WHOSE LETTERS HAV E BEEN RETURNED UNSERVED. HE HAS ALSO NOT GIVEN THE BREAK-UP OF TH E COMMISSION OF RS.39,78,085/- WHICH IS DISALLOWED BY HIM. HE, THE REFORE, REQUESTED THAT THE MATTER MAY BE SENT BACK TO THE FILE OF THE ASSESSIN G OFFICER AND THE ASSESSING OFFICER SHOULD BE DIRECTED TO GIVE THE BR EAK-UP OF THE COMMISSION OF RS.39,78,085/- DISALLOWED BY HIM. THE ASSESSEE W OULD FURNISH ALL THE NECESSARY DETAILS IN RESPECT OF THOSE COMMISSION AG ENTS. 5. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. AFTER CONSI DERING THE FACTS OF THE CASE AND THE ARGUMENTS OF BOTH THE SIDES, WE ARE OF THE OPINION THAT IT WOULD BE IN THE INTEREST OF JUSTICE TO SET ASIDE TH E ORDERS OF THE AUTHORITIES BELOW ON THIS POINT AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER. WE ORDER ACCORDINGLY. WE ALSO FIND THAT T HE ASSESSING OFFICER HAS DISALLOWED THE COMMISSION PAID TO THOSE COMMISSION AGENTS WHOSE LETTERS WERE RETUNED UNSERVED BY THE POSTAL AUTHORITIES WIT H THE REMARKS LEFT. HOWEVER, HE HAS NOT GIVEN THE NAME AND ADDRESS OF S UCH COMMISSION AGENTS AND THE AMOUNT PAID TO EACH COMMISSION AGENT . WE, THEREFORE, DIRECT THE ASSESSING OFFICER TO GIVE THE LIST OF THE COMMI SSION AGENTS WHOSE LETTERS WERE RETURNED UNSERVED BY THE POSTAL AUTHORITIES AL ONGWITH AMOUNT OF COMMISSION PAID TO EACH AGENT. THE ASSESSEE IS ALS O DIRECTED TO FURNISH ITA NO. 2726/AHD/2011 ACIT V. UNIFRAX INDIA LTD FOR AY 2007-08 4 CONFIRMATION/AFFIDAVIT AND ANY OTHER EVIDENCES RELA TING TO THOSE COMMISSION AGENTS WHOSE LETTERS HAVE BEEN RETURNED UNSERVED BY THE POSTAL AUTHORITIES. NEEDLESS TO MENTION THAT THE ASSESSIN G OFFICER WILL ALLOW ADEQUATE OPPORTUNITY TO THE ASSESSEE TO FURNISH THE SE EVIDENCES. THEREAFTER, THE ASSESSING OFFICER WILL RE-ADJUDICATE THE ISSUE IN ACCORDANCE WITH LAW. 6. IN THE RESULT, THE REVENUES APPEAL IS DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 19 TH JUNE, 2015 AT AHMEDABAD. SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER (G.D. AGRAWAL) VICE-PRESIDENT AHMEDABAD; DATED 19/06/2015 BIJU T., PS *+ $ %, -*,% *+ $ %, -*,% *+ $ %, -*,% *+ $ %, -*,%/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. ! / THE RESPONDENT. 3. % '. / CONCERNED CIT 4. '. ( ) / THE CIT(A) 5. ,12 % , , / DR, ITAT, AHMEDABAD 6. 24 5# / GUARD FILE . *+' *+' *+' *+' / BY ORDER, TRUE COPY 6 66 6/ // / 7 7 7 7 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD