3 PLUS UNITED CORPORATION, MUMBAI V. ITO 20(3)(4), MUMBAI

ITA 2962/MUM/2012

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0600 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 31-12-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 02-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHOK GOSAR
• Keywords: Principle of natural justice

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO.2962/MUM/2012 ASSESSMENT YEAR: 2008-09 M/S 3 PLUS UNITED CORPORATION, SHOP NO.17, SITARAM CHAWL, KOL DONGRI, SHAR ROAD, ANDHERI (E), MUMBAI-400069 / VS. ITO 20(3)(4), PIRAMAL CHAMBERS, LOWER PAREL, MUMBAI ( #$% & /ASSESSEE) ( ' / REVENUE) P.A. NO. AAAFZ4413E ITA NO.3088/MUM/2012 ASSESSMENT YEAR: 2008-09 ITO 20(3)(4), PIRAMAL CHAMBERS, LOWER PAREL, MUMBAI / VS. M/S 3 PLUS UNITED CORPORATION, SHOP NO.17, SITARAM CHAWL, KOL DONGRI, SHAR ROAD, ANDHERI (E), MUMBAI-400069 ( ' / REVENUE) ( #$% & /ASSESSEE) P.A. NO.AAAFZ4413E #$% & / ASSESSEE BY SHRI ASHOK GOSAR ' / REVENUE BY SHRI NEIL PHILIP M/S 3PLUS UNITED CORPORATION 2 ( ') * & + / DATE OF HEARING : 19/05/2015 * & + / DATE OF ORDER: 19/05/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE AS WELL AS THE REVENUE IS IN CROSS AP PEALS AGAINST THE IMPUGNED ORDER DATED 28/02/2012, OF THE LD. COMMISSIONER OF INCOME TAX, MUMBAI. IN THE APPEAL O F THE ASSESSEE, THE CONFIRMATION OF ADDITION TO THE EXTEN T OF RS.20,58,278/- OUT OF TOTAL ADDITION OF RS.98,71,51 1/- HAS BEEN CHALLENGED. THE LD. COUNSEL FOR THE ASSESSEE, SHRI ASHOK GOSAR, CONTENDED THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONSIDERING THE GROSS MARGIN AT RS.37,00,604/- AGAINST RS.16,41,715/- SHOWN IN THE PROFIT AND LOSS ACCOUNT IGNORING THE FACTS. ON THE OTHER HAND, LD. DR, SHRI NEIL PHILIP, DEFENDED THE ADDITION SUSTAIN ED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND CHALLE NGED THE RELIEF GRANTED TO THE ASSESSEE BY CONTENDING THAT T RUE FACTS HAS BEEN IGNORED BY THE LD. COMMISSIONER WHILE GRAN TING PART RELIEF TO THE ASSESSEE. THE ADDITION MADE IN T HE ASSESSMENT ORDER WAS DEFENDED. 2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE WAS WORKING AS DISTRIBUTOR OF M/S BHARTI AIRTEL. THE ASSESSEE PURCHASED VARIOUS PROD UCTS OF M/S BHARTI AIRTEL AND SOLD TO THE RETAILERS. M/S B HARTI AIRTEL DEDUCTED THE TAX AT SOURCE AMOUNTING TO RS.10,69,06 4/- ON M/S 3PLUS UNITED CORPORATION 3 THE DIFFERENCE AMOUNT OF MAXIMUM SALE PRICE/BILLING PRICE OF THE PRODUCTS WHICH WERE SOLD TO THE ASSESSEE. THE A SSESSING OFFICER TREATED THE DIFFERENTIAL FIGURE AS COMMISSI ON, EARNED BY THE ASSESSEE, RESULTING INTO ADDITION OF RS.94,7 1,511/- TO THE RETURNED INCOME. THE ASSESSING OFFICER RAISED T HE TAX DEMAND OF RS.40,51,380/-. THE ASSESSING OFFICER FOU ND THAT THE COMMISSION INCOME WAS NOT REFLECTED BY THE ASSE SSEE IN ITS PROFIT AND LOSS ACCOUNT, THEREFORE, THE ASSESSE E WAS ASKED TO EXPLAIN THE SAME. THE ASSESSEE TRIED TO EXPLAIN THAT IT NEVER RECEIVED ANY COMMISSION AND FILED A LETTER FR OM M/S BHARTI AIRTEL LTD. OFFICE THAT THE DEPOSIT IN CENTR AL GOVERNMENT ACCOUNT WAS MADE INADVERTENTLY, HOWEVER, THE LD. ASSESSING OFFICER FURTHER FOUND THAT M/S BHARTI AIRTEL LTD. CREDIT THE COMMISSION TO THE ASSESSEE AND DEDUCTED TAXES THEREUPON. AS PER THE REVENUE, THE PROFIT AND LOSS ACCOUNT MERELY DEPICTS THE DETAILS OF SALE AND PURCHASE BUT NO DETAILS OF RECEIPT OF COMMISSION WERE MENTIONED. WITHOUT GO ING INTO MUCH DELIBERATION AND THE SUBMISSIONS ADVANCED BEFO RE US, WE NOTE THAT THE ASSESSEE BEFORE US CONTENDED THAT MERELY AN EXAMPLE WAS QUOTED BEFORE THE LD. COMMISSIONER OF I NCOME TAX (APPEALS), BEING THE DISTRIBUTOR, WHICH WAS CON SIDERED TO BE CORRECT BY HIM WHILE DECIDING THE ISSUE AND COUL D NOT GO TO THE DEPTH OF THE CASE IGNORING THE FACTS. HOWEV ER, WE FIND THAT THE ASSESSEE HAS ALSO NOT PROPERLY EXPLAINED I TS FACTS BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AS WELL AS BEFORE THE LD. ASSESSING OFFICER, THEREFORE, KEE PING IN VIEW, THE PRINCIPLE OF NATURAL JUSTICE AND NO GRIEVANCE I S CAUSED TO EITHER SIDE, AS AGREED BY BOTH SIDES, WE REMAND THE SE FILED TO M/S 3PLUS UNITED CORPORATION 4 THE FILE OF THE LD. ASSESSING OFFICER TO EXAMINE TH E CLAIM OF THE ASSESSEE AS WELL AS OF THE LD. DR AND DECIDE AFRESH IN ACCORDANCE WITH LAW. EVEN OTHERWISE, THE MANDATE O F THE CONSTITUTION IS TO LEVY/COLLECT LAWFUL TAXES. THE A SSESSEE IS AT LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUBSTANTIAT E ITS CLAIM FOR WHICH DUE OPPORTUNITY BE PROVIDED TO THE ASSESS EE. THUS, THE APPEAL OF THE ASSESSEE AS WELL AS OF THE REVENU E IS ALLOWED FOR STATISTICAL PURPOSES. FINALLY, THE APPEAL OF THE ASSESSEE AS WELL AS OF T HE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN T HE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 19/05/2015. SD/- SD/- ( N.K. BILLAIYA ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER ( ) MUMBAI; , DATED : 19/05/2015 F{X~{T? P.S/. .. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. -./0 / THE APPELLANT 2. 12/0 / THE RESPONDENT. 3. 3 3 ( 4& ( -. ) / THE CIT, MUMBAI. P4. 3 3 ( 4& / CIT(A)- , MUMBAI 5. 6'7 1&# , 3 -.+ -# 8 , ( ) / DR, ITAT, MUMBAI 6. 9$ :) / GUARD FILE. / BY ORDER, 26.& 1& //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ( ) / ITAT, MUMBAI