MARVEL CONSUTLACY SERVICES, THANE V. ADDL CIT RG 3, THANE

ITA 2755/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2887 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 22-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR SONI
• Keywords: Opportunity of being heard

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.2755/MUM/2014 ASSESSMENT YEAR:2008-09 M/S MARVEL CONSULTANCY SERVICES, 2 ND FLOOR, MAGNOLIA, EDEN WOOD COMPLEX, GLADY ALWARYS ROAD, THANE-400607 / VS. ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE-3, THANE ( !' /ASSESSEE) ( $ / REVENUE) PAN. NO. AAJFM2300E !' / ASSESSEE BY SHRI DEVENDRA JAIN $ / REVENUE BY SHRI VIJAY KUMAR SONI $% & ' / DATE OF HEARING : 28/10/2015 & ' / DATE OF ORDER: 06/11/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 16/01/2014 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ONLY GROUND RAISED IN THIS APPEAL PERTAINS TO DISALLOWANCE OF COMMISSION OF RS.44,58,000/- WITH R ESPECT TO M/S MARVEL CONSULTANCY SERVICES ITA NO.2755/MUM/2014 2 NOVA CORPORATE SERVICES PVT. LTD. (RS.43,83,000/-_ AND M/S VARDHMAN JEWELLERS (RS.75,000/-). 2. DURING HEARING OF THIS APPEAL, THE LD. COUNSEL FOR THE ASSESSEE, SHRI DEVENDRA JAIN, ADVANCED HIS ARGU MENTS WHICH ARE IDENTICAL TO THE GROUND RAISED BY CONTEND ING THAT M/S NOVA CORPORATE SERVICES PVT. LTD. ACTED AS AGEN T OF THE ASSESSEE IN EXECUTING THE PROJECTS FOR THE LAST TWO YEARS, HOWEVER, DUE TO SHIFTING OF ADDRESS, THE NOTICES SE NT TO THE PARTIES WERE RETURNED BACK UNANSWERED AND FURTHER T HE ASSESSEE WAS IN A POSITION OF OBTAIN CONFIRMATION F ROM SAID CONCERN AFTER COMPLETION OF ASSESSMENT PROCEEDINGS. ON THE OTHER HAND, THE LD. DR, SHRI VIJAY KUMAR SONI, STRO NGLY CONTRADICTED THE CLAIM OF THE ASSESSEE BY CONTENDIN G THAT THE CLAIM OF THE ASSESSEE WITH RESPECT TO PAYMENT OF CO MMISSION IS ABSOLUTELY BOGUS AND EVEN THE WARE ABOUT OF THE PARTIES WERE NOT KNOWN EVEN TO THE ASSESSEE AND FURTHER THE Y WERE NOT PRODUCED BEFORE THE ASSESSING OFFICER, CONSEQUE NTLY, GENUINENESS OF PAYMENT AND SERVICES RENDERED BY THE M COULD NOT BE EXAMINED. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS A PARTNERSHIP CONCERN PROC URING AND INSTALLING EQUIPMENTS IN VARIOUS INDUSTRIAL SECTORS LIKE REFINERY, PETROCHEMICALS, FERTILIZERS, POWER PLANTS ON COMMISSION BASIS, DECLARED INCOME OF RS.62,68,280/- IN ITS ELECTRONICALLY FILED RETURN ON 29/09/2008 (PAPER CO PY OF THE RETURN WAS SUBMITTED ON 08/10/2008), WHICH WAS PROC ESSED M/S MARVEL CONSULTANCY SERVICES ITA NO.2755/MUM/2014 3 U/S 143(1) OF THE ACT. SINCE, THE CASE OF THE ASSE SSEE WAS SELECTED FOR SCRUTINY, CONSEQUENTLY, REQUIRED NOTIC ES WERE ISSUED TO THE ASSESSEE. THE ASSESSEE ATTENDED AND P RODUCED CERTAIN DOCUMENTS/DETAILS. THE ASSESSEE SHOWN TO H AVE RECEIVED RS.1,62,80,981/- OUT OF WHICH THE AMOUNT O F RS.1.58 CRORES WAS CLAIMED TO BE RECEIVED ON ACCOUN T OF COMMISSION BASIS. THE ASSESSEE ALSO CLAIMED EXPENS ES OF RS.71.39 LAKHS ON COMMISSION PAYMENTS, THEREFORE, T HE NET PROFIT WAS SHOWN AT RS.64 LAKHS. DURING ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED WITH RESPECT TO THE COMMISSION PAID TO M/S NOVA CORPORATION AND ALSO TH E OTHER PARTIES. THE ASSESSEE CLAIMED THAT ALL PAYMENTS WER E PAID THROUGH CHEQUE AND TDS WAS DEDUCTED. THE ASSESSING OFFICER SENT NOTICES TO THESE FIRMS, WHICH WERE RET URNED BACK UN-SERVED. THE ASSESSEE WAS ASKED TO PRODUCE WARE A BOUT OF M/S NOVA CORPORATION. AS PER THE ASSESSEE, THESE P ARTIES COULD NOT BE TRACED. ADMITTEDLY, ONUS IS UPON THE ASSESSEE TO PROVE THE GENUINENESS OF THE PAYMENT AND MERE DE DUCTION OF TDS CONCLUSIVELY DOES NOT PROVE THAT PAYMENTS WE RE MADE FOR BUSINESS PURPOSES. THE BENCH ASKED A QUERY WITH RESPECT TO CONFIRMATION LETTER DATED 25/01/2011, WITH RESPE CT TO M/S NOVA CORPORATION SERVICES PVT. LTD.. THE LD. COUNSE L EXPLAINED THAT THIS LETTER WAS OBTAINED AFTER THE C OMPLETION OF THE ASSESSMENT PROCEEDINGS. IT SEEMS THAT THE ASSES SEE WAS IN TOUCH WITH THESE PARTIES EVEN AFTER COMPLETION O F ASSESSMENT BUT COULD NOT PRODUCE BEFORE ASSESSING O FFICER EVEN REPEATEDLY ASKED TO DO SO. IN VIEW OF THIS FAC T, WE DIRECT THE ASSESSEE TO PRODUCE THE CONCERNED PARTIES BEFOR E THE M/S MARVEL CONSULTANCY SERVICES ITA NO.2755/MUM/2014 4 ASSESSING OFFICER SO THAT THE GENUINENESS OF THE PA YMENT, WORK DONE BY THEM CAN BE EXAMINED. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD AND FURTHER TO PRODUCE E VIDENCE, IF ANY, IN SUPPORT OF ITS CLAIM, THUS, THE APPEAL O F THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 28/10/2015. SD/- SD/- ( RAJESH KUMAR ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % MUMBAI; ( DATED : 06/11/2015 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 0 0 1 ( *+ ) / THE CIT, MUMBAI. 4. 0 0 1 / CIT(A)- , MUMBAI 5. 3$4 . , 0 *+' * 5 , % / DR, ITAT, MUMBAI 6. 6! 7% / GUARD FILE. / BY ORDER, /3+ . //TRUE COPY// / (DY./ASSTT. REGISTRAR) , % / ITAT, MUMBAI.