MAGOXY INFRA P.LTD, MUMBAI V. ITO 10(2)(2), MUMBAI

ITA 3444/MUM/2017

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5347 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Assessment Year: 2011-2012
• Appeal Filed On: 11-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Accommodation entries
• Section: 201; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D , MUMBAI BEFORE S HRI G.S. PANNU ( VP ) AND SHRI RAM LAL NEGI (JM) ITA NO. 3444 /MUM/2017 ASSESSMENT Y EAR: 2011 - 12 M/S MAGOXY INFRA PVT. LTD., 105, SAGAR PALLAZIO, SAKINAKA, MUMBAI - 400072 PAN: AAECM79 14L VS. THE DY. COMMISSIONER OF INCOME TAX CIRCLE 10(2)(2), AAYKAR BHAVAN, MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI GAURAV KABRA ( AR ) REVENUE BY : SHRI MANOJ KUMAR SINGH (DR ) DATE OF HEARING: 25 /09 /201 8 DATE OF PRONOUNCEMENT: 24 / 10 /201 8 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 09.03.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) (FOR SHORT THE CIT ( A)) - 17 , MUMBAI , FOR THE A S S ESSMENT YEAR 2011 - 12 , WHEREBY THE LD. CIT (A) HAS PARTLY ALLOWED THE APPEAL FILED BY THE ASSESSEE AGAINST ASSESSMENT ORDER PASSED U/S 143 (3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE A CT). 2. BRIEF FACTS OF THE C ASE ARE THAT THE ASSESSEE COMPANY ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION AND EXCAVATION FLOORINGS, FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION DECLARING THE TOTAL INCOME OF RS. 1,24,87,833/ - . THE RETURN WAS PROCESSED U/S 1 43 (1). SUBSEQUENTLY, THE ASSESSMENT WAS REOPENED ON RECEIVING OF INFORMATION THAT THE ASSESSEE HA D OBTAINED ACCOMMODATION ENTRIES AMOUNTING TO RS. 16,26,322/ - FROM HAWALA DEALERS . IN REPLY TO THE NOTICE U/S 148 , THE ASSESSEE REQUE S TED TO TREAT THE RETUR N FILED EARLIER AS RETURN FILED IN RESPONSE TO NOTICE U/S 148. FURTHER, IN 2 ITA NO. 34 44 / MUM/2017 ASSESSMENT YEAR: 2011 - 12 RESPONSE NOTICE U/S 143 (2) AND 142 (1) THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE APPEARED BEFORE THE AO, FURNISHED WRITTEN SUBMISSIONS AND DISCUSSED THE CASE. SINCE IT WAS NOTI CED THAT THE ASSESSEE HA D DEBITED RS. 5,00,708/ - TOWARDS COMMISSION PAID, AO ASKED THE ASSESSEE TO FURNISHED THE PARTY WISE DETAILS OF THE COMMISSIONS PAID AND ALSO DIRECT ED TO EXPLAIN THE NATURE OF SERVICES RENDERED BY THE PERSONS TO WHOM COMMISSIONS WE RE PAID. IN RESPONSE THEREOF THE ASSESSEE SUBMITTED THAT THE AGENTS WERE APPOINTED TO CARRY OUT THE SUPERVISION WORK IN RESPECT OF VARIOUS PROJECT SITES. THE ASSESSEE ALSO FURNISHED THE COPIES OF INVOICES RAISED BY THE AGENTS AND THE DETAILS OF TAX DEDUCTE D AT SOURCE. THE ASSESSEE FURTHER REQUESTED TO CONDUCT ENQUIRY TO VERIFY THE GENUINENESS OF ITS CLAIM . HOWEVER, THE AO REJECTING THE CONTENTION OF THE ASSESSEE DISALLOWED THE CLAIM OF THE ASSESSEE AND ADDED THE AMOUNT OF RS. 5,00,000/ - TO THE TOTAL INCOME OF THE ASSESSEE. IN THE FIRST APPEAL, THE LD. CIT(A) CONFIRMED THE ADDITION. 3 . AGGRIEVED BY THE ORDER OF LD. CIT (APPEAL S ), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING EFFECTIVE GROUND S : - 1. ON THE FACTS & CIRCUMSTANCES OF T HE CASE AS WELL AS IN LAW, THE LEARNED CIT (A) HAS ERRED IN CONFIRMING THE ACTION OF THE LEARNED ASSESSING OFFICER IN REOPENING THE CASE, WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. ON THE FACTS & CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LEARNED CIT (A) HAS ERRED IN CONFIRMING THE ACTION OF THE LEARNED ASSESSING OFFICER IN DISALLOWING THE CLAIM OF COMMISSION EXPENSES OF RS. 5,00,000/ - AS ALLEGED UNSUBSTANTIATED PAYMENTS, WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE DOES NOT WANT TO PRESS GROUND NO. 1 OF THE APPEAL. IN VIEW OF THE REQUEST MADE BY THE LD. COUNSEL , GROUND NO. 1 OF THE APPEAL IS DISMISSED AS NOT PRESSED. 3 ITA NO. 34 44 / MUM/2017 ASSESSMENT YEAR: 2011 - 12 5. VIDE GROUND NO. 2 , THE ASSESSEE HAS CHALLENGED THE ADDITION OF RS. 5,00,000/ - CONFIRMED BY THE AO REJECTING THE CLAIM OF THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ITAT HAS DEALT WITH THE IDENTICAL ISSUE IN THE ASSESSEES OWN CASE FOR THE A.Y. 2013 - 1 4 AND THE ITAT HAS RESTORED THE ISSUE BACK TO THE FILE OF AO WITH THE DIRECTION TO DECIDE THE SAME AFTER TAKING INTO ACCOUNT THE EVIDENCES WITH THE ASSESSEE MAY FILE IN SUPPORT OF ITS CLAIM OF COMMISSION EXPENSES AS PER FACTS AND LAW. THE LD. COUNSEL SUBMI TTED THAT SINCE THE ISSUE INVOLVED IS IDENTICAL TO THE ASSESSEES APPEAL PERTAINING TO THE ASSESSMENT YEAR 2013 - 14 , THE SAME MAY BE RESTORED TO THE FILE OF AO FOR DECIDING AFRESH . 6. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FAIRLY ADMIT TED THAT THE ITAT HAS BEEN SEN T THE IDENTICAL ISSUE BACK TO THE FILE OF AO FOR DECIDING THE ISSUE AFRESH IN ASSESSEES OWN APPEAL PERTAINING TO THE ASSESSMENT YEAR 2013 - 14. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO GONE THROUGH THE ORDERS PASSED BY THE AUTHORITIES BELOW AS WELL AS THE ORDER DATED 17.07.2018 PASSED BY THE COORDINATE BENCH IN THE ASSESSEES OWN CASE ITA NO 1439/M/2017 FOR THE A.Y. 2013 - 14. THE COORDINATE BENCH HAS RESTORED THE IDENTICAL ISSUE TO THE FILE OF AO IN THE LIGHT OF THE RIVAL CONTENTIONS OF THE PARTIES . THE RELEVANT PARA OF THE ORDER OF THE COORDINATE BENCH READS AS UNDER: - AFTER HEARING BOTH THE PARTIES AND PERUSING THE RELEVANT MATERIAL PLACED BEFORE US AND ALSO THE PERUSAL OF THE IMPUGNED ORDER, WE FIND THAT THE LD. CIT (A) HAS JUST RELIED ON THE PRECEDING YEAR ORDER OF THE LD. CIT (A) WHERE THE ASSESSEE HAS NOT CHALLENGED THE ORDER OF LD. CIT (A) ON SIMILAR ISSUE. ON THE SAME ANALOGY, THE LD. CIT (A) DISMISSED THE APPEAL OF THE ASSESSEE IN THE CURRENT YEAR ALSO WITHOUT T AKING INTO ACCOUNT THE EVIDENCES WHICH WERE FILED BY THE ASSESSEE IN SUPPORT OF ITS CLAIM. UNDER THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ISSUE AT HAND NEEDS TO BE DECIDED DENEVO AFTER APPRECIATION 4 ITA NO. 34 44 / MUM/2017 ASSESSMENT YEAR: 2011 - 12 AND EXAMINATION OF THE EVIDENCES WHICH THE ASSESSE E HAS FILED BEFORE THE FIRST APPELLATE AUTHORITY. ACCORDINGLY, WE RESTORE THE ISSUE BACK TO THE FILE OF THE AO WITH THE DIRECTION TO DECIDE THE SAME AFTER TAKING INTO ACCOUNT THE EVIDENCES WHICH THE ASSESSEE MAY FILE IN SUPPORT OF ITS CLAIM OF COMMISSION E XPENSES AS PER FACTS AND LAW. 8. WE NOTICE THAT THE ISSUE INVOLVED IN THIS APPEAL IS IDENTICAL TO THE ISSUE INVOLVED IN THE ASSESSEES APPEAL PERTAINING THE ASSESSMENT YEAR 2013 - 14. SINCE THE COORDINATE BENCH HAS RESTORED THE IDENTICAL ISSUE TO THE FILE OF AO IN THE ASSESSES OWN CASE FOR THE A.Y. 2013 - 14 AFTER HEARING THE CONTENTION OF THE ASSESSEE AND SINCE THE CONTENTION OF THE ASSESSEE IS SAME , WE RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH RESTORE THE SOLE ISSUE TO THE FILE OF AO TO DECIDE THE SAME AFRESH AFTER TAKING INTO CONSIDERATION THE CONTENTION OF THE ASSESSEE IN THE LIGHT OF THE EVIDENCE PLACED ON RECORD BY THE ASSESSEE. IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR A SSESSMENT YEAR 2011 - 2012 IS ALLOWED FOR STATISTICAL PURPO SES. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH OCTOBER , 2018 . SD/ - SD/ - ( G.S. PANNU ) ( RAM LAL NEGI ) VICE PRESIDENT JU DICIAL MEMBER MUMBAI ; DATED: 24 / 10 / 201 8 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . 5 ITA NO. 34 44 / MUM/2017 ASSESSMENT YEAR: 2011 - 12 / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI