Shri Vinod M. Shah, HUF, Ahmedabad V. The Income Tax Officer, Ward-5(3)(3), Ahmedabad

ITA 3337/AHD/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4454 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 13-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; TDS
• Section: 143(3)

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER &SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./I.T.A. NO. 3337/AHD/2016 ( / ASSESSMENT YEAR :2012-13) SHRIVINOD M SHAH - HUF 117, NEW CLOTH MARKET, O/S. RAIPUR GATE, RAIPUR AHMEDABAD- 380001 / VS. ITO, WARD-5(3)(3), AHMEDABAD ./ ./PAN/GIR NO. : AAH HS4 124 G ( /APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : HARDI K VORA, AR / RESPONDENTBY: MUDIT NAGPAL, SR. DR !' /DATE OFHEARING 26/04/2019 #$!' / DATE OF PRONOUNCEMENT 21/05/2019 %& /O R D E R PER AMARJIT SINGH - AM: THE APPEAL HAS BEEN FILED BY THE ASSESSEE FOR A.Y. 2012-13, ARISE FROM ORDER OF THE CIT(A)-5, AHMEDABAD DATED 16.09.2016, I N PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE AC T. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPE AL:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS W ELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HA S ERRED IN CONFIRMING AD-HOC DISALLOWANCE OR RS. 16,986/- BEING 1/20 TH PART OF VEHICLE EXP., VEHICLE MAINTENANCE EXP., CONVEYANCE EXP., DEPRECIATION ON MOTOR CAR AND TELEPHONE EXP. ITA NO. 3337/AHD/2016 A.Y. 2012-13 2 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ER RED IN CONFIRMING THE ADDITION OF RS. 55,914/- BEING INTEREST INCOME IGNO RING THE FACT THAT IT IS ALREADY OFFERED FOR TAX IN A.Y. 2013-14. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ER RED IN CONFIRMING THE ADDITION OF RS. 41,41,034/- BEING COMMISSION EXP. 3. IN THIS CASE THERE ARE THREE GROUND OF APPEAL. THE LD. COUNSEL HAS NOT PRESSED GROUND NO. 1 AND 2. THEREFORE, THESE GROUN DS OF APPEAL ARE DISMISSED AS NOT PRESSED. THE LD. COUNSEL HAS PRESSED THE GROUND NO. 3 WHICH IS AGAINST THE DECISION OF LD. CIT(A), AHMEDABAD-5 IN CONFIRMING THE ADDITION OF RS. 41,41,034/- BEING COMMISSION EXPENSES. 4. THE FACT IN BRIEF IS THAT THE RETURN OF INCOME DE CLARING INCOME OF RS. 15,93,670/- WAS FILED ON 30.09.2012. SUBSEQUENTLY THE CASE WAS SELECTED UNDER SCRUTINY BY ISSUING OF NOTICE U/S. 143(2) OF THE AC T ON 08.08.2013. IN RESPECT OF THE ISSUE IN APPEAL PERTAINING TO COMMISSION EXPENSES T HE AO HAS NOTICED THAT ASSESSEE HAS DEBITED COMMISSION EXPENSES TO THE AMO UNT OF RS. 41,41.034/-. THE AO HAS ASKED THE ASSESSEE TO FURNISH THE SUPPORTING DETAIL OF THE RECIPIENT AND DETAILS OF SERVICES RENDERED BY THEM FOR THE ASSESS EE. ON VERIFICATION OF THE DETAIL FURNISHED THE AO HAS NOTICED THAT ASSESSEE HAS FURN ISHED VOUCHERS FOR COMMISSION EXPENSES TO THE AMOUNT OF RS. 24,57,478/- ONLY. THE AO HAS FURTHER NOTICED THAT THE VOUCHER WERE NOT CONTAINED THE DETAILS OF THE A DDRESS OF THE AGENTS, SERVICES RENDERED/SALES MADE BY THEIR EFFORTS ETC. THE ASSES SEE HAS EXPLAINED THAT ASSESSEE PAID THE COMMISSION BY CHEQUE AND THEY HAVE ALSO DE DUCTED NECESSARY TDS FROM SUCH EXPENSES. THE AO HAS NOT ACCEPTED THE EXPLANAT ION OF THE ASSESSEE STATING THAT THE ASSESSEE HAS NOT SUBMITTED COMPLETE INFORM ATION I.E. CONTRA ACCOUNT FROM THE PERSON, DETAIL OF ADDRESS ETC. THE AO HAS STAT ED THAT ASSESSEE HAS ALSO NOT FURNISHED THE COPY OF RETURN OF INCOME FROM WHICH I T CAN BE CONFIRMED THAT THE RECIPIENT HAS OFFERED THE COMMISSION INCOME FROM TH E ASSESSEE. THEREFORE, THE AO ITA NO. 3337/AHD/2016 A.Y. 2012-13 3 HAS TREATED THE COMMISSION EXPENSES AS UNEXPLAINED AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 5. AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE THE LD . CIT(A). THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE REITERATIN G THE SAME REASON CITED BY THE AO WHILE DISALLOWING THE COMMISSION EXPENSES. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US THE ASSESSEE HAS FURNISHED PAPER BOOK CONTAINING DETAIL/INFORMATION FURNISHED BEFORE THE AO AND CIT(A) DURING THE COURSE OF ASSESSMENT PROCEEDINGS A ND APPELLATE PROCEEDINGS. THE LD. COUNSEL HAS ALSO CONTENDED THAT THE AO HAS N OT CONSIDERED THE SPECIFIC EVIDENCES FURNISHED BY THE ASSESSEE AND MADE DISALL OWANCE ON ESTIMATION BASIS. 6. ON THE OTHER HAND THE LD. DR HAS RELIED ON THE O RDER OF THE LOWER AUTHORITIES. 7. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL ON RECORD. THE ASSESSEE HAS CLAIMED AN AMOUNT OF RS. 41,41,034/- U NDER THE HEAD OF COMMISSION EXPENSES. THE AO HAS DISALLOWED THE COMMISSION EXPE NSES STATING THAT CERTAIN DETAIL HAS NOT BEEN FURNISHED AS A RESULT THE GENUI NENESS OF THE EXPENDITURE COULD NOT BE VERIFIED. WITH THE ASSISTANCE OF LD. REPRESE NTATIVES WE HAVE GONE THROUGH THE MATERIAL PLACED IN THE PAPER BOOK SUBMITTED BY THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDING AND IT IS NOTICED THAT AT S R. NO. 7 FROM PAGE NO. 37 TO 101 THE ASSESSEE HAS GIVEN SUMMARY OF COMMISSION LEDGER ALONG WITH CONFIRMATION, ADDRESSES, BANK STATEMENT AND COPY OF INCOME TAX RE TURN FILED BY THE COMMISSION RECIPIENT PARTIES. AFTER PERUSAL OF THE AFORESAID INFORMATION WE CONSIDERED THAT THE AO HAS FAILED TO CONTROVERT THE AFORESAID INFORMATI ON PROVIDED BY THE ASSESSEE WITH ANY SPECIFIC FINDING, THEREFORE, WE ARE NOT IN CLINED WITH THE DECISION OF LD. CIT(A). ACCORDINGLY, WE RESTORE THIS CASE TO THE FI LE OF AO TO VERIFY AND ITA NO. 3337/AHD/2016 A.Y. 2012-13 4 EXAMINATION THE SPECIFIC INFORMATION FURNISHED BY T HE ASSESSEE AS REFERRED ABOVE AND DECIDE THE ISSUE IN APPEAL WITH SPECIFIC FINDIN GS AFRESH AFTER AFFORDING ADEQUATE OPPORTUNITY TO THE ASSESSEE. THEREFORE, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. SD/- SD/- (KUL BHARAT) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT M EMBER AHMEDABAD: DATED 21/05/2019 TANMAY TRUE COPY / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. % / ASSESSEE 3. '( ! )! / CONCERNED CIT 4. )! - / CIT (A) 5. *+, ! ( , ' ( , -.%'% / DR, ITAT, AHMEDABAD 6. ,/ 0 / GUARD FILE. BY ORDER / %& , 1 / - ' ( , -.%'% 2 1.DATE OF DICTATION ON 01.05.2019 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER 02.05.2019 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 02.05.2019 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 21.05.2019 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 21.05.2019 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 2 1.05.2019 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER THIS ORDER PRONOUNCED IN OPEN COURT ON 21/05/2019