Shri Natwarlal Shrichand Sanghvi, Ahmedabad V. The Income tax Officer,Ward-5(2)(5), Ahmedabad

ITA 2932/AHD/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4969 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 27-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DHIRAJ PATEL
• Keywords: Additional evidence; Corroborative evidences; TDS; Set aside
• Section: 80C; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NO. 2932/AHD/2017 (ASSESSMENT YEAR : 2014-15) NATVARLAL SRICHAND SANGHVI, PROP OF M/S. VINWEL CORPORATION, 43, KALINDI COMPLEX, OPP LOHA BHAVAN, DIST: AHMEDABAD 380 009. VS. ITO, WARD 5(2)(5) AHMEDABAD. [PAN NO. ACIPS 5717 L] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI DHIRAJ PATEL, A.R. RESPONDENT BY : SHRI UMA SHANKAR PRASAD, SR. D.R. DATE OF HEARING 13.05.2019 DATE OF PRONOUNCEMENT 17.05.2019 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE ASSESSEE IS DIRECTE D AGAINST THE ORDER DATED 20.10.2017 PASSED BY THE COMMISSIONER OF INCO ME TAX (APPEALS)-5, AHMEDABAD ARISING OUT OF THE ORDER DATED 05.12.2016 FOR THE ASSESSMENT YEAR 2014-15 PASSED BY THE INCOME TAX OFFICER, WARD-5(2) (5), AHMEDABAD UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (H EREINAFTER REFERRED AS TO THE ACT). 2. THE ASSESSEE, AN INDIVIDUAL ENGAGED IN THE BUSIN ESS OF TRADING IN IRON AND STEEL, FILED ITS RETURN OF INCOME ON 29.09.2014 FOR A.Y. 2014-15 DECLARING TOTAL INCOME AT RS.3,96,050/- WHICH WAS FINALIZED U /S 143(3) OF THE ACT ON ITA NO.2932/AHD/2017 NATVARLAL SHRICHAND SANGHVI VS ITO ASST.YEAR 2014-15 - 2 - 05.12.2016 DETERMINING TOTAL INCOME AT RS.17,18,040 /- AFTER MAKING FOLLOWING ADDITION: A. RS.2,25,268/- ON ACCOUNT OF CASH DEPOSIT B. RS.9,96,722/- ON ACCOUNT OF DISALLOWANCE OF COMM ISSION EXPENSES C. RS.1,00,000/- ON ACCOUNT OF DEDUCTION CLAIM U/S 80C OF I.T. ACT. THE ABOVE SAID ADDITION WAS CONFIRMED IN APPEAL BY THE LEARNED CIT(A). 3. AT THE TIME OF HEARING OF THE INSTANT APPEAL, LE ARNED REPRESENTATIVE OF THE ASSESSEE SUBMITTED BEFORE US THAT HE DOES NOT W ANT TO PROCEED WITH THE GROUND OF ADDITION RELATING TO CASH DEPOSIT TO THE TUNE OF RS.2,25,268/- AND DEDUCTION CLAIMED U/S 80C OF THE ACT OF RS.1,00,000 /-. THUS, THESE TWO GROUNDS ARE DISMISSED AS NOT PRESSED. SO FAR AS THE DISALLOWANCE OF COMMISSION EXPENSES TO THE TUNE OF RS.9,96,722/- IS CONCERNED, IT APPEARS FROM THE REC ORDS THAT THE ASSESSEE CLAIMED EXPENSES ON ACCOUNT OF DALALI AND COMMISSIO N FOR WHICH THE DETAILS WERE CALLED FOR INCLUDING NAME, ADDRESS, PAN, SERVI CES PROVIDED BY EACH PARTY AND DATE OF COMMISSION PAID TO THEM BY THE ASSESSE E. IN REPLY, THE ASSESSEE FURNISHED ONLY THE COPY OF LEDGER ACCOUNT TO THOSE PARTIES WHOM THE COMMISSION WAS PAID. FURTHER DETAILS THOUGH ASKED B Y THE LEARNED AO, THE ASSESSEE FAILED TO PRODUCE THE SAME AND HENCE THE D ISALLOWANCE OF COMMISSION OF RS.9,96,722/- WAS MADE BY THE LEARNED AO, WHICH WAS IN TURN CONFIRMED BY THE LEARNED FIRST APPELLATE AUTHORITY. IN FACT, DURING THE APPELLATE PROCEEDING, IT WAS CONTENDED BY THE ASSESSEE THAT H E HAS PAID COMMISSIONS TO THOSE PARTIES FOR THE SERVICES RENDERED BY THEM AND THOSE AGENT RAISED THE BILL FROM ITS HUF ACCOUNT, WHICH THE ASSESSEE HAD PAID A FTER DEDUCTING THE TDS ITA NO.2932/AHD/2017 NATVARLAL SHRICHAND SANGHVI VS ITO ASST.YEAR 2014-15 - 3 - BUT LEARNED CIT(A) OBSERVED THAT THE APPELLANT FAIL ED TO FURNISH SUCH DETAILS WITH SUPPORTING EVIDENCES TO PROVE THE GENUINENESS OF SUCH COMMISSION PAID AND THUS CONCLUDED THE PROCEEDING BY CONFIRMING SUC H ADDITION. WE FIND AN APPLICATION FOR ADDITIONAL EVIDENCES HAS BEEN FILED BY THE ASSESSEE BEFORE US WITH THE COPY OF THE SAME UPON THE REVENUE. IT APPE ARS FROM SUCH APPLICATION THAT DURING THE APPELLATE PROCEEDING BY AND UNDER A WRITTEN SUBMISSION DATED 20.09.2017, THE ASSESSEE ALONG WITH THOSE SUBMISSIO N ALSO FURNISHED THE COPY OF THE RETURN OF INCOME ALONG WITH THE STATEMENT AN D TOTAL INCOME OF ONE OF THE PARTY NAMELY JAYPRAKASH MOHANLAL SHAH HUF. THE COPY OF MOHANLAL HUF COULD NOT BE PLACED BEFORE THE LEARNED CIT(A) ON TH E GROUND THAT THE SAID PARTY WAS SUFFERING FROM CANCER AND WAS HOSPITALIZE D SINCE LAST ONE WEEK FROM THE DATE OF MAKING SUCH WRITTEN SUBMISSION DATED 20 .09.2017. HOWEVER, SINCE THOSE DOCUMENTS WERE NOT TAKEN INTO CONSIDERATION B Y THE LEARNED CIT(A) SAME ARE BEING PLACED HERE BEFORE US BY WAY OF AN A PPLICATION FOR ADDITIONAL EVIDENCES FOR PROPER ADJUDICATION OF THE MATTER. SH E, THUS, PRAYED FOR SETTING ASIDE THE ISSUE TO THE FILE OF THE LEARNED AO TO TA KE INTO CONSIDERATION THIS PARTICULAR ADDITIONAL EVIDENCES AFRESH IN ORDER TO ADJUDICATE THE CLAIM OF THE ASSESSEE. THE LEARNED DR, HOWEVER, WITH ALL HIS FAI RNESS AGREED TO SUCH PRAYER MADE BY THE LEARNED AR. 4. HAVING HEARD THE RESPECTIVE PARTIES, HAVING REGA RD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW TO ADMIT SUCH ADDITIONAL EVIDENCES, WHICH HAS BEEN FILED BEFORE U S AND TO SET ASIDE THE ISSUE TO THE FILE OF THE LEARNED AO TO ADJUDICATE THE CLA IM OF THE ASSESSEE UPON TAKING INTO CONSIDERATION THE ADDITIONAL EVIDENCES SO PLACED BEFORE US IN SUPPORT OF THE CASE OF THE ASSESSEE IN ORDER TO PRE VENT THE MISCARRIAGE OF JUSTICE. WE FURTHER DIRECT THE LEARNED AO TO GRANT AN OPPORTUNITY OF HEARING TO ITA NO.2932/AHD/2017 NATVARLAL SHRICHAND SANGHVI VS ITO ASST.YEAR 2014-15 - 4 - THE ASSESSEE WHILE TAKING THE APPEAL AND ALSO TO CO NSIDER THE EVIDENCES WHICH THE ASSESSEE MAY CHOOSE TO FILE AT THE TIME OF HEAR ING. IN THAT VIEW OF THE MATTER, THE ASSESSEES APPEAL IS HEREBY ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 17/05/2019 SD/- SD/- ( WASEEM AHMED ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 17/05/2019 PRITI YADAV, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. () / THE CIT(A)-5, AHMEDABAD. 5. , ! ', #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 13/05/2019 (DICTATION PAGES 5) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 15.05.2019 3. OTHER MEMBER. 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 15.05.2019 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER