INCOME TAX OFFICER, JAIPUR V. SHRI SURESH KUMAR KHANDELWAL, JAIPUR

ITA 286/JPR/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6310 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-07-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 28-02-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PUNAM RAI
• Keywords: Rule of consistency; Additional evidence; Corroborative evidences
• Section: 133(6)

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 FOT; IKY JKO] U;KF;D LNL; ,OA JH HKKXPAN] YS[KK L NL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA- @ ITA NO. 286/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2013-14 THE ITO, WARD-3(2), JAIPUR. CUKE VS. SHRI SURESH KUMAR KHANDELWAL B-7, SHIV MARG, BANIPARK, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACWPK 9243 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : NONE JKTLO DH VKSJ LS @ REVENUE BY : SMT. PUNAM RAI (DCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 27/06/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 02/07/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF DATED 28.12.2017 OF CIT(A), JAIPUR FOR A.Y. 2013-14. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS AS UNDER:- I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW THE LD. CIT(A) IS JUSTIFIED IN ACCEPTING THE ADDITIONAL EVIDENCES PRODUCED BY THE ASSESSEE? II) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW THE LD. CIT(A) IS JUSTIFIED IN SETTING ASIDE THE FINDINGS ARRIVED AT CONSEQUENT TO THE INFORMATION CALLED FOR UNDER SEC. 133(6) DURING THE ASSESSMENT PROCEEDINGS WHEREIN TH E ITA NO. 286/JP/2018 ITO VS. SHRI SURESH KUMAR KHANDELWAL 2 PURCHASERS DENIED THE INVOLVEMENT OF ANY COMMISSION AGENT, AND ALLOWED THE CLAIM OF COMMISSION TO THE ASSESSEE? III) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) IS JUSTIFIED IN ALLOWING THE APPEAL OF THE ASSESSEE ON THE PRINCIPLE OF CONSISTENCY FOR A.Y. 2 012-13 & 2013- 14 ON THE GROUND THAT THE AO HAS ALLOWED THE CLAIM OF COMMISSION IN A.Y. 2014-15 THE ASSESSMENT FOR WHICH WAS COMPLETED AFTER THE ASSESSMENT ORDER FOR A.Y. 2012- 13 & 2013- 14? THE APPELLANT CRAVES THE RIGHT TO AMEND ALTER OR AD D TO ANY OF THE GROUNDS OF APPEAL GIVEN ABOVE. 2. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE-RESP ONDENT DESPITE THE SERVICE OF NOTICE AS PER ACKNOWLEDGEMENT ON REC ORD. ACCORDINGLY WE PROPOSE TO HEAR AND DISPOSED OFF OF THIS APPEAL EX-PARTE. 3. WE HAVE HEARD THE LD. DR AS WELL AS CONSIDERED T HE RELEVANT MATERIAL ON RECORD. THE ASSESSEE IS A DEALER OF STE EL AUTHORITY OF INDIA AND SELLING THE IRON & STEEL AS A WHOLE SELLER. DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTED THAT THE ASSESS EE HAS MADE PAYMENT OF SALES COMMISSION OF RS. 38,74,553/- TO V ARIOUS PARTIES DURING THE YEAR UNDER CONSIDERATION. THE AO ISSUED NOTICE U/S 133(6) OF THE ACT TO THE PURCHASERS OF THE GOODS FROM THE ASS ESSEE TO VERIFY WHETHER THE ALLEGED AGENTS TO WHOM COMMISSION WAS P AID WERE INVOLVED IN THE TRANSACTION OF SALE. OUT OF 12 PART IES TO WHOM NOTICE U/S 133(6) WAS SENT BY THE AO ONLY FOUR RESPONDED AND D ENIED HAVING ANY ITA NO. 286/JP/2018 ITO VS. SHRI SURESH KUMAR KHANDELWAL 3 INVOLVEMENT OF AGENTS IN THE PURCHASE AND SALE OF I RON AND STEEL FROM THE ASSESSEE. THESE FOUR PARTIES HAVE CLEARLY STATE D THAT THEY HAVE DIRECTLY PURCHASED THE GOODS FROM THE ASSESSEE WITH OUT ANY SERVICE BY THE BROKERS. ACCORDINGLY, THE AO DISALLOWED THIS AM OUNT OF RS. 38,74,553/- FOR WANT OF ANY SERVICE RENDERED BY THE PERSONS TO WHOM THE ALLEGED COMMISSION WAS CLAIMED TO HAVE BEEN PAI D. ON APPEAL, THE LD. CIT(A) ISSUED A REMAND ORDER AND AFTER CONSIDER ING THE REMAND REPORT HAS ALLOWED THE CLAIM OF THE ASSESSEE AND CO NSEQUENTLY DELETED THE ADDITION MADE BY THE AO. 4. WE NOTE THAT WHEN THE ASSESSEE PRODUCED CERTAIN COPIES OF INVOICES CONTAINING THE NAMES OF SUCH BROKERS, LD. CIT(A) CALLED FOR A REMAND REPORT WHICH IS REPRODUCED AT PAGE 5 AS UNDE R:- KINDLY REFER TO YOUR KIND LETTER NO. 2014 DATED 20 .02.2017 CALLING FOR REPORT ON ADDITIONAL EVIDENCES IN THE CASE OF S HRI SURESH KUMAR KHANDELWAL AY 2012-13 & 2013-14 REGARDING. IN THIS CONNECTION, IT IS SUBMITTED THAT SHRI RAJEN DRA GUPTA, CA ATTENDED THE OFFICE ON 22.02.2017 AND ASSURED THAT THE PERSONS WHO HAVE RECEIVED THE COMMISSION FROM VARIOUS PARTI ES WOULD BE PRODUCED WITHIN A WEEK OR SO. HOWEVER, AR HAS NOT P RODUCED THESE PERSONS. IT IS, THEREFORE, REQUESTED THAT THE ADDITION EVIDE NCE PRODUCED DURING THE APPELLATE PROCEEDINGS MAY NOT BE ACCEPTE D AND THE FACTS AS BROUGHT ON RECORD BY THE AO MAY KINDLY BE ACCEPTED. THUS, IT IS CLEAR THAT DURING THE REMAND REPORT THE ASSESSEE ASSURED THAT THE PERSONS WHO HAVE RECEIVED THE COMMISSION F ROM VARIOUS ITA NO. 286/JP/2018 ITO VS. SHRI SURESH KUMAR KHANDELWAL 4 PARTIES WOULD BE PRODUCED WITHIN A WEEK OR SO. HOWE VER, THE ASSESSEE FAILED TO PRODUCE THESE PERSONS FOR VERIFICATION AS DIRECTED BY THE LD. CIT(A). AFTER RECEIVING THE REMAND REPORT THE LD. C IT(A) HAS ALLOWED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT IN THE REM AND PROCEEDING OF THE AO ASKED THE ASSESSEE TO PRODUCE THE COMMISSION AGENT WHEREAS IN THE ASSESSMENT PROCEEDING THE AO ISSUED NOTICES U/S 133(6) OF THE ACT TO THE BUYERS. WE FIND THAT THE REASONS OF REVERSIN G THE ORDER OF THE ASSESSING OFFICER IS NOT PROPER AND PARTICULAR IN V IEW OF THE FACT THAT THE AO MADE ALL EFFORTS TO VERIFY THE CLAIM OF THE ASSE SSEE BY CONDUCTING AN ENQUIRY FROM THE BUYERS AS WELL AS FROM THE COMMISS ION AGENTS. HOWEVER, BOTH THE BUYERS AS WELL AS COMMISSION AGEN TS FAILED TO RESPOND OR TO APPEAR BEFORE THE AO FOR VERIFICATION . THE ONUS IS ON THE ASSESSEE TO PRODUCE THE COMMISSION AGENTS FOR VERIF ICATION. FURTHER, THE AO HAS ALSO TOOK STEPS TO VERIFY THE CLAIM THROUGH BUYERS AND ONLY FOUR BUYERS RESPONDED TO THE NOTICE ISSUED BY THE AO WHO HAVE DENIED INVOLVEMENT OF ANY COMMISSION AGENTS. THUS, IN THE SE FACTS AND CIRCUMSTANCES OF THE CASE WE FIND THAT THE ASSESSEE HAS FAILED TO DISCHARGE ITS OWN TO PROVE THE CLAIM AND PARTICULAR LY ON THE POINT WHETHER THE COMMISSION AGENTS HAVE RENDERED ANY SER VICES AGAINST ALLEGED PAYMENT OF RS. 38,74,553/-. SINCE, THE ASSE SSEE HAS NOT ITA NO. 286/JP/2018 ITO VS. SHRI SURESH KUMAR KHANDELWAL 5 APPEARED DESPITE NOTICE THEREFORE, TAKING A LENIENT VIEW WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) AND RESTORE TH E MATTER TO THE RECORD OF THE ASSESSING OFFICER FOR GIVING ONE MORE OPPORTUNITIES TO THE ASSESSEE TO SUBSTANTIATE THE CLAIM WITH SUPPORTING EVIDENCE AND MATERIAL. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02/07/2018. SD/- SD/- HKKXPAN FOT; IKY JKO (BHAGCHAND) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 02/07/2018. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO,WARD-3(2), JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- SHRI SURESH KUMAR KHANDELWAL, JAIPU R. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 286/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR