ACIT 12(3), MUMBAI V. LEMUIR EXPRESS, MUMBAI

ITA 3166/MUM/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3749 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 04-11-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 14-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Onus to prove
• Section: 143(3)

Judgement Text

I.T.A NO.3166/ MUM/2009 ASSESSMENT YEAR: 2005-06 1 IN THE INCOME TAX APPELLATE TRIBUNAL, G BENCH, MUMBAI. BEFORE SHRI D.K.AGARWAL (JUDICIAL MEMBER) AND SHRI PRAMOD KUMAR(ACCOUNTANT MEMBER) I.T.A NO.3166/ MUM/2009 ASSESSMENT YEAR: 2005-06 ASST.COMMISSIONER OF INCOME TAX 12(3), .. APPEL LANT R.NO.121, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI. VS LEMUIR EXPRESS ,. RESPONDENT ORICAON HOUSE, 2 ND FLOOR, 12-K, DUBHASH MARG, FORT, MUMBAI-400 020 PA NO.AAAFL 2519 D APPELLANT BY: SHRI MANVENDRA GOYAL RESPONDENT BY : MS AARTI VISSANJI O R D E R PER PRAMOD KUMAR: 1. THIS IS AN APPEAL FILED BY THE ASSESSING OFFICER AND IS DIRECTED AGAINST THE ORDER DATED 23.2.2009 PASSED BY THE CIT(A)-XII, MUM BAI IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX A CT, 1961, FOR THE ASSESSMENT YEAR 2005-06. THE GRIEVANCE RAISED BY THE REVENUE IS AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN DIRECTING THE AO TO DELETE THE ADD ITION MADE ON ACCOUNT OF DISALLOWANCE OF THE CLAIM OF COMMISSION PAID TO THE THIRD PARTY IGNORING THE FACT THAT THE ONUS TO PROVE THE GENUINENESS OF THE I.T.A NO.3166/ MUM/2009 ASSESSMENT YEAR: 2005-06 2 CLAIM LIES THEREIN, WITH THE ASSESSEE AND THE ASSES SEE HAS FAILED TO PROVE THE BONAFIDE OF ITS CLAIM. 2. BRIEFLY STATED, THE MATERIAL FACTS ARE LIKE THIS . THE ASSESSEE , A REGISTERED PARTNERSHIP FIRM, IS ENGAGED IN THE BUSINESS OF FRE IGHT FORWARDING OF DIAMONDS AND VALUABLE CARGO. DURING THE COURSE OF ASSESSMENT PR OCEEDINGS, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS CLAIMED COMMISSION PAID OF RS. 43,16,269/- TO VARIOUS PARTIES. THE ASSESSEE HAS ALSO DISALLOWED COMMISSI ON OF RS. 5,73,240/- BEING ADDITION UNDER SECTION 40A(IA) OF THE ACT. IN RE SPONSE TO ASSESSING OFFICERS REQUISITION OF BILLS FOR COMMISSION PAID ABOVE RS. 20,000/-, THE ASSESSEE SUBMITTED THAT THE CONCERNED PERSONS WHO PROCURE BUSINESS DO NOT GIVE ANY INVOICE FOR COMMISSION DUE TO THEM BUT THEY SUBMIT CONFIRMATION OF RECEIPT OF THE COMMISSION AND, ACCORDINGLY, CONFIRMATION LETTERS FROM 28 SUCH PARTIES WERE SUBMITTED BEFORE THE ASSESSING OFFICER. THE AO DID NOT ACCEPT THE ABOVE SUBMISSION OF THE ASSESSEE AND AFTER TAKING INTO CONSIDERATION THE EVIDENCES F ILED, DISALLOWED 20% OF COMMISSION OF RS. 43,16,269/- WHICH WORKED OUT TO R S. 8,63,254/- AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. THE ASSE SSEE AGGRIEVED BY THE STAND SO TAKEN BY THE ASSESSING OFFICER PREFERRED APPEAL BEF ORE THE CIT (A). THE CIT (A) RELYING ON THE DECISION OF THE TRIBUNAL FOR THE ASS ESSMENT YEAR 2001-02 AS ALSO HIS PREDECESSOR FOR THE ASSESSMENT YEAR 2004-05 IN ASSE SSEES OWN CASE, DIRECTED THE AO TO DELETE THE DISALLOWANCE. THE ASSESSING OFFIC ER BEING AGGRIEVED IS IN APPEAL BEFORE US. 3. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PE RUSED THE MATERIAL ON RECORD, WE SEE NO REASONS TO INTERFERE IN THE FINDI NGS OF THE CIT (A). BEFORE US, THE ASSESSEE HAS PRODUCED DECISIONS OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004-05 IN ITA NO.2064/M/2008 DATED 22 ND MAY, 2009 AND ALSO FOR THE ASSESSMENT YEAR 2001-02 IN ITA NO.6831/M/20 03 ORDER DATED 8 TH JUNE, 2007, WHEREIN, UNDER SIMILAR FACTS, THE TRIBUNAL AL LOWED THE ASSESSEES CONTENTION. IN THIS CASE, THE CIT (A) HAS DIRECTED THE AO TO DE LETE THE DISALLOWANCE FOLLOWING THE I.T.A NO.3166/ MUM/2009 ASSESSMENT YEAR: 2005-06 3 DECISIONS OF THE TRIBUNAL (SUPRA). THEREFORE, WE A PPROVE THE ORDER OF THE CIT (A) AND DECLINE TO INTERFERE IN THE MATTER. 4. IN THE RESULT, THE APPEAL STANDS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 10 TH NOVEMBER, 2010 SD/- (D.K.AGARWAL) (JUDICIAL MEMBER) SD/- (PRAMOD KUMAR) (ACCOUNTANT MEMBER) MUMBAI, DATED 10 TH NOVEMBER , 2010 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)-XII, MUMBA I 4. COMMISSIONER OF INCOME TAX, XII, MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH G, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI