ITO, New Delhi V. M/s Nandnini Anand, New Delhi

ITA 3703/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8202 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 28-01-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 31-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Assessee Lawyers: SUNIL BHATIA
• Keywords: Additional evidence
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F: NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI B.P. JAIN, ACCOUNTANT MEMBER I.T.A.NO.3703/DEL/2009 ASSESSMENT YEAR : 2005-06 INCOME-TAX OFFICER, MS. NANDINI ANAND, WARD 32(1), NEW DELHI. VS. 3-B,JANGPURA, MATHU RA ROAD, NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI H.K. LAL, SR. DR. RESPONDENT BY : SHRI SUNIL BHATIA, CA. O R D E R PER B.P. JAIN, ACCOUNTANT MEMBER. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-XXVI, NEW DELH I, DATED 15.06.2009 IN AN APPEAL AGAINST THE ASSESSMENT FRAM ED UNDER SECTION 143(3) OF THE INCOME-TAX ACT (THE ACT). 2. THE REVENUE HAS RAISED THE FOLLOWING SOLITARY GR OUND BEFORE US:- LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF R S.8,48,960/- DISALLOWED BY THE A.O. OUT OF DEALERS COMMISSION A S NO TDS HAS BEEN DEDUCTED ON THE COMMISSION PAID AS PER AUD ITORS REPORT. 2 3. THE BRIEF FACTS OF THE CASE AS EMERGED OUT OF TH E ASSESSING OFFICERS ORDER AT PAGES 2 & 3 ARE AS UNDER:- THE ASSESSEE HAS SHOWN RS.8,48,960/- PAID AS DEALE RS COMMISSION. NO DETAILS WITH RESPECT TO DEALERS COM MISSION HAS BEEN FILED BY THE ASSESSEE. THE AUDITOR HAS AL SO REPORTED THAT NO TDS HAS BEEN DEDUCTED BY THE ASSESSEE ON TH E PAYMENT OF DEALERS COMMISSION. ALL THESE CIRCUMSTANCES AND EVIDENCES PROVE THAT THE PAYMENT OF DEALERS COMMISSION OF RS. 8,48,960/- IS NOT A GENUINE PAYMENT. THE ASSESSEE HAS BOOKED THE SAID AMOUNT JUST IN ORDER TO REDUCE HER TAX LIABILITY AN D THAT IS THE REASON, THE ASSESSEE DID NOT FILE ANY DETAILS OF TH ESE SO CALLED DEALERS AND AVOIDED PRODUCTIONS OF BOOKS OF ACCOUNT S DURING THE COURSE OF ASSESSMENT PROCEEDINGS THOUGH AMPLE OPPORTUNITIES WERE PROVIDED TO HER. THUS RS.8,48,9 60/- IS DISALLOWED BEING BOGUS PAYMENT AS DEALERS COMMISSIO N AND ADDED TO THE INCOME OF THE ASSESSEE AND PENALTY PRO CEEDINGS UNDER SECTION 271(1)(C ) OF THE INCOME-TAX ACT, 196 1 ARE BEING INITIATED SEPARATELY ON THIS ISSUE. 4. BEFORE THE LEARNED CIT(A) THE ASSESSEE SUBMITTED THAT SHE DID NOT APPOINT ANY AUTHORIZED REPRESENTATIVE TO ATTEND THE PROCEEDINGS AND IN THE SAME PERIOD THE ASSESSEE WAS MEDICALLY UNFIT TO ATT END THE CASE AND HER ACCOUNTANT HAD LEFT THE JOB WITHOUT ANY NOTICE TO T HE ASSESSEE. A MEDICAL CERTIFICATE TO THAT EFFECT WAS ALSO FILED BEFORE TH E LEARNED CIT(A). THE LEARNED CIT(A) AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE, WAS OF THE VIEW THAT THE ASSESSEE COULD NOT ATTEND THE ASSESSM ENT PROCEEDINGS FOR GENUINE REASONS. THE ASSESSEE FILED HER SUBMISSION S AND THE DETAILS, WHICH WERE FORWARDED TO THE AO FOR THE REMAND REPORT. IN THE REMAND REPORT THE 3 ASSESSING OFFICER SUBMITTED TO THE LEARNED CIT(A) T HAT NO BOOKS OF ACCOUNT AND OTHER DETAILS WERE PRODUCED DURING THE ASSESSME NT PROCEEDINGS AND THE ASSESSMENT WAS GETTING TIME BARRED AND THEREFORE, T HERE WAS NO ALTERNATIVE WITH THE A.O. BUT TO COMPLETE THE ASSESSMENT ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. HE ALSO SUBMITTED THAT NO MED ICAL CERTIFICATE WAS FILED DURING THE ASSESSMENT PROCEEDINGS. 5. THE LEARNED DR SHRI H.K. LAL RELIED UPON THE ORD ER OF THE A.O. AND THE REMAND REPORT OF THE A.O. SUBMITTED TO THE LEAR NED CIT(A). IN RESPONSE TO THE REMAND REPORT IT WAS SUBMITTED BY THE ASSESS EE THAT SHE HAD NOT APPOINTED ANY AUTHORIZED REPRESENTATIVE TO ATTEND T HE CASE. THE DETAILS WERE PRODUCED BEFORE THE AO EXCEPT FEW DETAILS WHICH WER E ASKED FINALLY AND UNFORTUNATELY SHE WAS MEDICALLY UNFIT TO ATTEND THE CASE AND HER ACCOUNTANT HAD ALSO LEFT THE JOB. WHEN THE ASSESSEE RECOVERED , SHE GOT THE ASSESSMENT ORDER AND NO DETAILS COULD BE FURNISHED. THE MEDIC AL CERTIFICATE WAS SUBMITTED ALONG WITH ALL THE DETAILS REQUIRED. THE LEARNED CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE RE MAND REPORT AND REJOINDER HELD THAT COMMISSION DEBITED AT RS.8,48,960/- IS NO T IN THE NATURE OF COMMISSION BUT IS DISCOUNT/REBATE GIVEN TO THE DEAL ERS WHICH HAS BEEN GIVEN IN THE EARLIER YEARS. THE SAID EXPENSES HAVE BEEN FOUND PROPERLY VOUCHED. THE ASSESSEE HAS BEEN FOUND TO HAVE FURNISHED ALL T HE DETAILS OF THE REBATE 4 GIVEN TO THE DEALERS. THEREFORE, THE AMOUNT DOES N OT CONSTITUTE COMMISSION BUT THE REBATE AND NO TDS IS REQUIRED TO BE DEDUCTE D AND ACCORDINGLY DELETED THE ADDITION SO MADE. 6. WE HAVE HEARD THE PARTIES AT LENGTH AND CONSIDER ED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE COULD NOT SUBMIT THE DETAILS DURING THE ASSESSMENT PROCEEDINGS FOR THE REASONS EXPLAINED BE FORE THE LEARNED CIT(A). THE ASSESSEE HAD SUBMITTED MEDICAL CERTIFICATE IN T HAT REGARD AND ALSO ALL THE DETAILS BEFORE THE LEARNED CIT(A). THE SAID DETAIL S WERE FORWARDED TO THE AO, WHICH WERE NOT EXAMINED BY THE AO FOR THE REASO N THAT THE SAME WERE NOT PRODUCED DURING THE ASSESSMENT PROCEEDINGS AND THE ASSESSMENT WAS GETTING TIME BARRED. THE REASONS GIVEN BY THE AO F OR NOT EXAMINING THE DETAILS CANNOT BE ACCEPTED ONCE THE ADDITIONAL EVID ENCES HAVE BEEN ADMITTED BY THE LEARNED CIT(A) AND THE DEPARTMENT IS NOT AGA INST ADMITTING OF THE ADDITIONAL EVIDENCES BEFORE US. IF THE AO HAS NOT EXAMINED THE DETAILS, THE LEARNED CIT(A) WITHIN HIS CONCURRENT JURISDICTION, HAS EXAMINED THE DETAILS AND HAS RIGHTLY COME TO THE CONCLUSION THAT THE ASS ESSEE HAS WRONGLY CLAIMED THE REBATE/DISCOUNT GIVEN TO THE DEALERS AS COMMISS ION AND NO TDS IS REQUIRED TO BE DEDUCTED. SUCH REBATE/DISCOUNT HAD BEEN GIVEN IN THE EARLIER YEARS. THE SAID EXPENSES HAVE BEEN FOUND PROPERLY VOUCHED. IN THE CIRCUMSTANCES AND FACTS OF THE CASE, WE FIND NO INF IRMITY IN THE ORDER OF THE 5 LEARNED CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION MADE BY THE AO. THUS THE SOLITARY GROUND OF THE REVENUE IS DISMISSED. 7. IN THE RESULT, THE APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 5 TH FEBRUARY, 2010. SD/- SD/- (I.P. BANSAL) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 5 TH FEBRUARY, 2010. COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.