DCIT, Circle - 50, Kolkata, Kolkata V. M/s. Swaraj Marketing, Kolkata

ITA 373/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54513 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2011
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 02-06-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 18-02-2010
• Court: TRIBUNAL
• Department Lawyers: S K ROY
• Assessee Lawyers: PRASANTA CHOWDHURY
• Keywords: TDS
• Section: 133(6); 154

Judgement Text

1 , A , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- A, KOL KATA [ , . .. . . .. . , , , , !' ] BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER & SRI C.D. RAO, ACCO UNTANT MEMBER # # # # / ITA NO. 373 (KOL) OF 2010 $% &' / ASSESSMENT YEAR 2006-07 DY.COMMISSIONER OF INCOME-TAX CIRCLE-50, KOLKATA. M/S. SWARAJ MARKETING, KOLKATA. (PAN-AAUFS4042C) (*+ / APPELLANT ) - $ - - VERSUS - (./*+/ RESPONDENT ) *+ 0 1 !/ FOR THE APPELLANT: / SRI S.K. ROY ./*+ 0 1 ! / FOR THE RESPONDENT: / SRI PRASANTA CHOWDHURY !2 / ORDER ( . .. . . .. . ), !' (C.D. RAO), ACCOUNTANT MEMBER : THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST T HE ORDER OF LD. C.I.T.(A)- XXXII, KOLKATA DATED 30/10/2009 FOR ASSESSMENT YEAR 2006-07. THE DEPARTMENT IN THIS APPEAL HAS AGITATED THE DELETION OF ADDITIONS BY THE LD. C.I.T.(A) ON THE FOLLOWING HEADS OF EXPENDITURE :- 1) ADDITION OF RS.6,43,916/- AS RECEIPT OF COMMISSION FROM HSBC LTD.. 2) ADDITION OF RS.7,12,394/- ON ACCOUNT OF SERVICE TAX RECEIVED BY THE ASSESSEE. 3) ADDITION OF RS.8,51,000/- AS COMMISSION RECEIVED FR OM TATA TELESERVICE. 4) ADDITION OF RS.6,87,613/- ON ACCOUNT OF CLAWBACK & DENTING CHARGES. 2. ISSUES AT ITEMS (1) & (2) ABOVE ARE INTER-CONNE CTED ON THE TRANSACTIONS WITH HSBC LTD. THE FACTS ON THESE TWO ADDITIONS ARE THAT THE ASSESSEE HAS DISCLOSED INCOME FROM CREDIT CARD COMMISSION OF RS.47,07,698/- AND I NCOME FROM COMMISSION ON PERSONAL LOAN OF RS.93,23,522/-, TOTALING TO RS.1,40,31,220/ -. THE A.O. ON PERUSAL OF FORM NO.16A ISSUED BY HSBC LTD. FOUND SUCH TOTAL RECEIPT AT RS.1,46,75,136/-. THE A.O. CONFRONTED THE ASSESSEE WITH SUCH DISCREPANCY AND R EQUIRED THE ASSESSEE TO RECONCILE 2 THE SAME AND THE ASSESSEE FILED A STATEMENT SHOWING RECONCILIATION OF HSBC INCOME FOR THE YEAR UNDER CONSIDERATION AS UNDER :- COMMISSION SHOWN AS PER TDS CERTIFICATE RS.1,46,75, 136 LESS: SERVICE TAX PAID DURING YEAR ON WHICH TDS HAS BEEN DEDUCTED RS. 7,12,394 LESS: INCOME DISCLOSED IN FY 2004-05 AS INCOME ACCRUED AND DUE FOR HSBC (173440 + 210180) RS. 3,83,620 COMMISSION INCOME RECEIVED DURING FY 2005-06 RS.1,3 5,79,122 ADD: BILL RAISED BUT NOT RECEIVED TILL MARCH, 2006 RS. 4,52,098 SHOWN IN PROFIT & LOSS A/C FROM PIL AND CREDIT CARD AS PER NOTICE RAISED ON 10.9.2008. RS.1,40,31,220 THE ASSESSEE ALSO EXPLAINED BEFORE THE A.O. THAT AS AN INTERMEDIARY BETWEEN GOVT. AND HSBC FOR PAYMENT OF SERVICE TAX, THE ASSESSEE COLLE CTED SERVICE TAX OF RS.7,12,394/- FROM HSBC AND DEDUCTED TDS THEREON AND AS SUCH SERV ICE TAX LEDGER IS TREATED AS A LIABILITY ITEM APPEARING IN THE BALANCE SHEET. THIS TREATMENT HAS BEEN FOLLOWED WHEN HSBC HAS PAID SERVICE TAX. IT WAS FURTHER EXPLAINE D THAT THE BUSINESS ON WHICH HSBC HAS PAID PART SERVICE TAX, THE ASSESSEE HAS PAID TH E BALANCE SERVICE TAX OUT OF ITS OWN FUND AND HAS ALSO SHOWN THAT PART OF PAYMENT OF SER VICE TAX IN THE BOOKS AS AN ITEM OF EXPENDITURE TO THE ASSESSEE. IT WAS ALSO STATED TH AT AS PER POPULAR PRACTICE FOLLOWED IN THE CORPORATE WORLD, THE ASSESSEE HAD DEDUCTED TDS ON SERVICE TAX. THE EXPLANATION OF THE ASSESSEE IN RESPECT OF PAYMENT OF SERVICE TAX A ND DEDUCTION OF TDS THEREON AND DIFFERENCE OF COMMISSION RECEIPT BETWEEN TDS CERTIF ICATE ISSUED BY HSBC AND SHOWN IN THE ASSESSEES P/L ACCOUNT WAS NOT ACCEPTED BY T HE A.O. ACCORDING TO HIM, THE SERVICE TAX COLLECTED BY THE ASSESSEE OF RS.7,12,39 4/- FORMS PART OF TOTAL RECEIPT OF THE ASSESSEE. HE, THEREFORE, TREATED THE DIFFERENCE OF RS.6,43,916/- [RS.1,46,75,136 RS.1,40,31,220] AS CONCEALED RECEIPT OF THE ASSESSE E AND ADDED THE SAME TO ITS TOTAL INCOME. 3. BEFORE THE LD. C.I.T.(A) THE ASSESSEE SUBMITTED THAT THE DISCREPANCY OF THE AMOUNT OF COMMISSION RECEIPT OF RS.6,43,916/- ALLEG ED BY THE A.O. HAS ARISEN FOR THE REASON THAT THE A.O. HAS MADE THE ASSESSMENT ON THE BASIS OF FORM 16A ONLY PROVIDED 3 BY HSBC LTD. THE ASSESSEE ALSO EXPLAINED THE FIGUR ES SHOWN IN THE STATEMENT OF RECONCILIATION OF HSBC INCOME, REPRODUCED AT PARA-2 ABOVE, BY STATING AS UNDER :- (A) RS.3,83,620/- AMOUNT OF BILL FROM CREDIT CAR D BUSINESS WAS RECOGNIZED AS REVENUE OF F.Y. 2004-05. BUT AS THE PAYMENT WAS RE CEIVED FROM HSBC IN APRIL, 2005, SO THE RELATED YDS WITH REGARD TO RS.3,83,620/- COM MISSION WAS APPEARING IN FORM 16A OF F.Y. 2005-06. AS THE A.O. PERUSED ONLY THE FORM 16A OF F.Y. 2005-06 SO HE HAS AGAIN CONSIDERED RS.3,83,620/- AS INCOME OF F.Y. 20 05-06. (B) RS.4,52,098 AMOUNT OF BILL WAS RAISED IN F. Y. 2005-06 BUT THE PAYMENT WAS RECEIVED IN F.Y. 2006-07. THE AFORESAID AMOUNT OF RS.4,52,098/- CONSISTED OF RS. 1,40,950/- AND RS.1,15,180/- FROM CREDIT CARD BUSIN ESS AND RS.1,95,968/- FROM PERSONAL LOAN COMMISSION BUSINESS. (C) HSBC IS UNDER THE PRACTICE OF DEDUCTING TDS FROM GROSS BILL I.E. COMMISSION + SERVICE TAX. DURING THE YEAR HSBC HAD PAID TO THE ASSESSEE RS.7,12,394/- AS SERVICE TAX. BUT AS TDS WAS DEDUCTED ON SERVICE TAX SO THE SAME AMOUNT OF RS.7,12,394/- APPEARED IN FORM 16A AS COMMISSION. AS PER THE NOR MAL ACCOUNTING POLITY THE ASSESSEE CONSIDERED THE COMMISSION AMOUNT AS ITS INCOME AND THE SERVICE TAX ELEMENT AS ITS LIABILITY. WITHOUT A CLEAR CERTIFICATE SHOWING THE COMMISSION AMOUNT AND THE SERVICE TAX AMOUNT SEPARATELY AND THE TOTAL OF THEM TALLIED WITH TOTAL OF FORM 16A FOR F.Y. 2005-06. DURING THE APPELLATE PROCEEDINGS, THE ASSESSEE SU BMITTED FOR THE FIRST TIME BEFORE THE LD. C.I.T.(A) CERTIFICATE FROM HSBC LTD. REGARDING SERVICE TAX OF RS.7,12,394/-. IT BEING A FRESH EVIDENCE, THE LD. C.I.T.(A) CALLED FOR A REMAND REPORT FROM THE A.O. IN REPLY, THE A.O. STATED AS UNDER :- THE ASSESSEE FILED APPLICATION U/S 154 IB 31.03.200 8 ALONG WITH TDS CERTIFICAGTE ISSUED BY HONG KONG AND SANGHAI BANKING CORPORATION LTD. WHERE THE GROSS COMMISSION WAS SHOWN RS.146,75,136/-. THE ASSESSEE CLAIMED THAT RS.7,12,394/- WAS PAID BY HSBC AS SERVICE TAX WHICH WAS BEING INCLUDE D IN FORM 16A ISSUED BY HSBC. THIS WAS BECAUSE HSBC DEDUCTS TDS ON GROSS BILL WHI CH IS COMMISSION PLUS SERVICE TAX WHICH WAS MENTIONED BY THE ASSESSEE IN THEIR AS SESSMENT PROCEEDINGS AND WAS QUOTED BY THE ASSESSING OFFICER IN PAGE 3 OF THE AS SESSMENT ORDER. A CONFIRMATORY LETTER WAS ISSUED BY THE HSBC BANK ON 13.07.2009 WH ERE THE SERVICE TAX PAID RS.7,12,394/- IN RESPONSE TO THIS OFFICE LETTER WHI CH WAS SENT ON 17.09.2009 TO HSBC, MUMBAI, SAME IS ENCLOSED FOR YOUR KIND PERUSA L. 4 AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND PERUSING THE ASSESSMENT ORDER AS WELL AS REMAND REPORT OF THE A.O., THE LD. C.I.T.(A) DELETED THE ADDITION OF RS.7,12,394/- MADE BY THE A.O., ALLEGING SUPPRESSIO N OF COMMISSION INCOME, BY OBSERVING AS UNDER :- I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORDER , THE SUBMISSIONS OF THE A/R AND THE REMAND REPORT OF THE A.O. AS REGARDS THE C LAIM OF THE ASSESSEE THAT THE SUM OF RS.7,12,394/- WAS PAID BY HSBC LTD. ON A CCOUNT OF SERVICE TAX, WHICH WAS NOT A PART OF ASSESSEES INCOME, THE CLAI M OF THE ASSESSEE HAS BEEN ACCEPTED BY THE A.O. IN HIS REMAND REPORT, THEREFOR E, ADDITION ON ACCOUNT OF SAME STANDS DELETED. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATER IAL PLACED ON RECORD. THE A.O. ON THE BASIS OF TDS CERTIFICATE IN FORM 16A ISSUED BY HSBC LTD. FORMED AN OPINION THAT THE ASSESSEE RECEIVED TOTAL COMMISSION OF RS.1 ,46,75,136/-, WHEREAS IN THE P/L ACCOUNT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION , THE SAME WAS SHOWN AT RS.1,40,31,220/-. THE A.O., THEREFORE, CONCEIVED A N OPINION THAT THE ASSESSEE SUPPRESSED ITS COMMISSION INCOME TO THE EXTENT OF R S.6,43,916/-, BEING THE DIFFERENCE BETWEEN COMMISSION SHOWN IN FORM 16A AND RETURNED B Y THE ASSESSEE. THE ASSESSEE EXPLAINED THAT SERVICE TAX PAID DURING THE YEAR UND ER CONSIDERATION AMOUNTING TO RS.7,12,394/- WAS COLLECTED BY IT FROM HSBC AND AS THIS WAS NOT ITS INCOME IN ANY WAY, THE SAID SERVICE TAX WAS TREATED AS A LIABILITY ITE M IN THE BALANCE SHEET. THE ASSESSEE FILED COPY OF LETTER FROM HSBC DATED 13/7/2009 BEFO RE THE LD. C.I.T.(A) ALONG WITH DETAILS OF SERVICE TAX PAID BY HSBC. IT IS SEEN FR OM THE SAID DETAILS THAT HSBC USED TO DEDUCT TDS ON THE TOTAL BILLED AMOUNT, I.E. COMMISS ION + SERVICE TAX. HOWEVER, IT WAS MADE CLEAR BY HSBC VIDE ITS SAID LETTER AS UNDER :- AMOUNT PAID AS COMMISSION : RS.1,39,62,772 AMOUNT PAID AS SERVICE TAX : RS. 7,12,394 TOTAL AMOUNT DISCLOSED IN FORM 16A : RS.1,46,75 ,166 IN HIS REMAND REPORT, THE A.O. HAS CONFIRMED THAT A S PER LETTER OF HSBC, SERVICE TAX OF RS.7,12,394/-WAS PAID BY HSBC. THEREFORE, THE S UBMISSION OF THE ASSESSEE THAT SERVICE TAX WAS PAID BY HSBC WHICH WAS BEING INCLUD ED IN FORM 16A ISSUED BY THEM IS 5 FOUND TO BE CORRECT. IN OUR OPINION, THEREFORE, TH E SERVICE TAX, WHICH IS SHOWN AS LIABILITY IN THE BOOKS OF THE ASSESSEE, IS NOT TO B E CLUBBED WITH ITS ACTUAL COMMISSION INCOME EARNED FROM HSBC. THEREFORE, THE COMMISSION INCOME DECLARED BY THE ASSESSEE IS MATCHING WITH THE CONFIRMATION GIVEN BY HSBC AND THAT BEING SO WE FIND NO INFIRMITY IN THE ORDER OF THE LD. C.I.T.(A) IN DELETING THE A DDITION OF RS.6,43,916/- MADE ON THIS ACCOUNT. GROUNDS NO. 1 AND 2 OF THE REVENUES APPE ALS ARE THUS DISMISSED. 5. THE ISSUES AT ITEMS (3 ) & (4) ABOVE ARE INTER- CONNECTED, WHICH ARE IN RESPECT OF ADDITIONS OF RS.8,51,000/- ON ACCOUNT OF SUPPRESSIO N OF COMMISSION INCOME AND RS. 6,87,613/- ON ACCOUNT OF CLAWBACK CHARGES DEDUCTED BY TATA TELESERVICES LTD. THE A.O. OBSERVED THAT THE ASSESSEE HAS DISCLOSED COMMI SSION INCOME FROM TATA TELESERVICES LTD. OF RS.6,98,287/- AS AGAINST RS.22 ,32,007/- REFLECTED IN TDS FORM 16A ISSUED BY THE SAID COMPANY. THE A.O. FURTHER S TATED THAT AS PER INFORMATION IN A.I.R., THE ASSESSEE RECEIVED FURTHER SUMS OF RS.75 ,500/- AND RS.35,704/- BOTH ON 6/11/2005 FROM THE SAID COMPANY WHICH WERE NOT DISC LOSED BY THE ASSESSEE IN ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONS IDERATION. IN RESPONSE TO NOTICE U/S. 133(6) OF THE ACT, TATA TELESERVICES LTD. INTI MATED TO THE A.O. THAT RS.23,45,511/- WAS PAID TO THE ASSESSEE DURING F.Y. 2005-06 (A.Y. 2006-07) AND TDS OF RS.1,23,605/- WAS DEDUCTED FROM THE SAID BILLED AMOUNT. WHEN CON FRONTED, THE ASSESSEE EXPLAINED IN THE FOLLOWING TERM : 1. WE ARE DISCLOSING OUR INCOME ON MERC ANTILE SYSTEM OF ACCOUNTING. TATA INDICOM HAVE ISSUED TDS CERTIFICATES FOLLOWING CASH SYSTEM OF ACCOUNTING. SO CERTAIN DISCREPANCIES HAS ARISEN BETWEEN OUR DISCLOSED INCO ME AND THE COMMISSION SHOWN AS PER FORM 16A. 2. TATA HAS DEDUCTED TDS ON CERTAIN SERV ICE TAX PAYMENTS OF WHICH WE HAVE CONCLUSIVE PROOF. IT HAS FURTHER ADDED TO THE DISCR EPANCIES. 3. TATA HAVE DEDUCTED CLAWBACK CHARGES ON MANY BILL THE PROOF OF WHICH IS AVAILABLE WITH US. WE HAVE DISCLOSED OUR TATA INDICOM BUSINE SS NET OF CLAWBACK CHARGES. WE ARE ATTACHING A RECONCILIATION WITH THIS LETTER CLEARLY SHOWING THE AREAS WHERE DIFFERENCE HAVE ARISEN. THE STATEMENT WILL C ONCLUSIVELY PROVE THAT WE HAVE DISCLOSED ALL THE INCOME WHETHER RECEIVED OR N OT RECEIVED FROM TATA INDICOM. 6 THE EXPLANATION OFFERED BY THE ASSESSEE WAS NOT ACC EPTED BY THE A.O. HE, THEREFORE, TREATED THE DIFFERENCE OF RS.16,47,224/- [RS.23,45, 511 RS.6,98,287] AS ASSESSEES SUPPRESSION OF COMMISSION INCOME AND ADDED THE SAME TO ITS TOTAL INCOME. 6. ON APPEAL, THE LD. C.I.T.(A) AFTER PERUSING THE STATEMENT OF TDS CONFIRMATION SUBMITTED BY TATA TELESERVICES LTD. TO THE A.O. (FI LED AT PAGES 76 & 77 OF THE PAPER BOOK) FOUND THE AMOUNT TOTALLING TO RS.15,83,080/- OUT OF THE ADDITION OF RS.16,47,224/- RECONCILED AND EXPLAINED AND THE BAL ANCE AMOUNT OF RS.64,144/- AS UNEXPLAINED. HE, THEREFORE, DELETED THE ADDITION O F RS.15,83,080/-, BUT SUSTAINED THE ADDITION TO THE EXTENT OF RS.64,144/- BY OBSERVING AS UNDER :- AS REGARDS ADDITION ON ACCOUNT OF COMMISSION RECEIV ED FROM TATA TELESERVICES LTD., IT IS OBSERVED THAT TATA TELESERVICES LTD. VIDE THE IR REPLY DATED 26.01.2008 HAD INTIMATED TO THE A.O. THAT A SUM OF RS.44,467/- WAS CREDITED TO THE ACCOUNT OF THE ASSESSEE ON ACCOUNT OF SERVICE TAX ON COMMISSION. SINCE, SUCH SERVICE TAX IS NOT PART OF THE INCOME OF THE ASSESSEE, THEREFORE, THE ADDITION MADE ON THAT ACCOUNT DESERVES TO BE DELETED. IT IS FURTHER OBSERVED THAT THE COMMISSION INCOME FROM TATA TELESERVICES LTD. TO THE TUNE OF RS.8,51,000/- RELATED TO THE MONTH OF M ARCH, 2005 WAS RECEIVED BY THE ASSESSEE IN APRIL, 2005, THEREFORE, INCLUDED BY TAT A TELESERVICES LTD. IN FORM NO.16A ISSUED BY THEM TO THE ASSESSEE FOR THE PERIO D RELEVANT TO THE FINANCIAL YEAR 2005-06 WHEREAS THE SAME HAD BEEN RECOGNIZED AS HIS INCOME BY THE ASSESSEE FOR THE FINANCIAL YEAR 2004-05, I.E., FOR THE ASSESSMEN T YEAR 2005-06 FOLLOWING THE MERCANTILE SYSTEM OF ACCOUNTING. SINCE, THE INCOME OF THE 8,51,000/- HAD ALREADY BEEN SUBJECTED TO TAX FOR ASSESSMENT YEAR 2005-06, THE SAME CANNOT BE BROUGHT TO TAX AGAIN IN ASSESSMENT YEAR 2006-07. THEREFORE, TH E ADDITION OF RS.8,51,000/- DESERVES TO BE DELETED. IT IS ALSO OBSERVED THAT OUT OF THE FIGURE OF GROSS COMMISSION OF RS.23,45,511/-, TATA TELESERVICES LTD. HAD DEDUCTED AN AMOUNT OF RS .6,87,613/- TOWARDS CLAW BACK DENTING CHARGES. CLAWBACK AND DENTING CHARGES ARE T HOSE WHICH ARE DEDUCTED BY THE TELECOM COMPANY IF ANY CUSTOMER INTRODUCED BY A DEA LER TO THAT COMPANY, LEAVES THEIR NETWORK WITHIN THE PERIOD OF THREE BILLING CY CLES. SUCH CLAW BACK AND DENTING CHARGES DEDUCTED BY THE TELECOM COMPANY, TATA TELES ERVICES LTD. IN THIS CASE, CANNOT BE TREATED AS COMMISSION INCOME OF THE ASSES SEE, THEREFORE, THE AMOUNT OF THE SAME IS TO BE REDUCED FROM THE FIGURE OF GROSS COMMISSION. ACCORDINGLY, THE ADDITION TO THE TUNE OF RS.87,613/-DESERVES TO BE D ELETED. AS A RESULT, OUT OF THE ADDITION OF RS.16,47,224/ - MADE BY THE A.O. ON ACCOUNT OF COMMISSION RECEIPTS FROM TATA TELESERVICES LTD., AM OUNT TOTALING TO RS.15,83,080/- STAND RECONCILED AND EXPLAINED. THE ASSESSEE HAS NO T BEEN ABLE TO FURNISH ANY 7 EXPLANATION IN RESPECT OF THE BALANCE AMOUNT OF RS. 64,144/-, THEREFORE, THE ADDITION TO THAT EXTENT IS CONFIRMED. 7. WE HAVE HEARD THE PARTIES AND PERUSED THE MATER IAL PLACED ON RECORD. WE HAVE ALSO CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHO RITIES BELOW. ON PERUSAL OF STATEMENT OF SERVICE TAX DETAILS FURNISHED BY TATA TELESERVICES LTD., FILED AT PAGE 77 OF THE PAPER BOOK, WE FIND THAT SUM OF RS.44,467/- WAS CREDITED BY TATA TELESERVICES LTD. TO THE ACCOUNT OF THE ASSESSEE. WE HAVE ALREA DY HELD THAT SERVICE TAX IS NOT PART OF ASSESSEES COMMISSION INCOME. IN THAT VIEW OF T HE MATTER, THE LD. C.I.T.(A) HAS RIGHTLY DELETED THE SAID AMOUNT FROM THE ASSESSEES INCOME, WHICH IS UPHELD. 7.1. WE FURTHER OBSERVE THAT THE COMMISSION INCOME OF RS.8,51,000/- ALTHOUGH RELATED TO THE MONTH OF MARCH, 2005 AND RECEIVED BY THE ASSESSEE IN APRIL, 2005, TATA TELESERVICES LTD. INCLUDED THIS AMOUNT IN FORM 16A MEANT FOR F.Y. 2005-06, RELEVANT TO ASSESSMENT YEAR UNDER CONSIDERATION. THE ASSESSEE F OLLOWS MERCANTILE SYSTEM OF ACCOUNTING AND, THEREFORE, IT ACCOUNTED FOR THIS CO MMISSION INCOME OF RS.8,51,000/- IN THE F.Y. 2004-05 RELEVANT TO A.Y. 2005-06. THEREFOR E, ONCE THIS INCOME HAS ALREADY BEEN TAXED IN THE EARLIER YEAR, THE SAME CANNOT AGA IN CONSTITUTE INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. THE LD. C.I.T .(A) HAS, THEREFORE, RIGHTLY DELETED THE ADDITION AND WE UPHOLD THE SAME. 7.2. NOW COMING THE ADDITION ON ACCOUNT OF CLAWBAC K & DENTING CHARGES, WE OBSERVE ON PERUSAL OF TDS STATEMENT FURNISHED BY TATA TELES ERVICES LTD. THAT A SUM OF RS.6,87,613/- HAS BEEN DEDUCTED BY IT FROM THE COMM ISSION ON ACCOUNT OF THE SAID CHARGES. IN OUR CONSIDERED OPINION, THE LD. C.I.T. (A) HAS RIGHTLY HELD THAT CLAWBACK & DENTING CHARGES DEDUCTED BY TATA TELESERVICES LTD. CANNOT BE TREATED AS COMMISSION INCOME OF THE ASSESSEE CONSIDERING THE CAUSE/INCIDE NCE FOR WHICH SUCH CHARGES ARE DEDUCTED. THAT BEING SO, THE ADDITION OF RS.6,87,6 13/- MADE BY THE A.O. ON THIS ACCOUNT HAS RIGHTLY BEED DELETED BY THE LD. C.I.T.( A), WHICH IS UPHELD. HOWEVER, THE ASSESSEE BEFORE THE LD. C.I.T.(A) COULD NOT EXPLAIN THE DISCREPANCY IN ITS COMMISSION INCOME TO THE EXTENT OF RS.64,144/- AND BEFORE US A LSO, THE POSITION REMAINED THE SAME AND AS SUCH WE DECLINE TO INTERFERE WITH THE ORDER OF LD. C.I.T.(A) IN UPHOLDING THE SAID ADDITION. TO SUM UP, OUT OF THE TOTAL ADDITION OF RS. 16,47,224/- MADE BY THE A.O., THE 8 LD. C.I.T. DELETED THE ADDITION TO THE EXTENT OF RS .15,83,080/- [RS.44,467 + RS.8,51,000 + RS.6,87,613] AND BALANCE ADDITION OF RS. 64,144/- [RS.16,47,224 RS.15,83,080] WAS UPHELD. FOR THE REASONS DISCUSSED ABOVE, WE UPHOLD THE ORDER OF LD. C.I.T.(A) ON THIS ISSUE AS WELL. 8. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS DISMISSED. !2 '3! 4 3$ 5 6 THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON 26.8. 2011. SD/- SD/- ( ) ( . .. . . .. . ) !' (MAHAVIR SINGH) JUDICIAL MEMBER (C.D. RA O), ACCOUNTANT MEMBER ( (( ( ' ' ' ') )) ) DATE: 26 -08-2011 !2 0 .7 8!7&9- COPY OF THE ORDER FORWARDED TO: 1. *+ / THE APPELLANT : D.C.I.T., CIRCLE-50, KOLKATA. 2 ./*+ / THE RESPONDENT : SWARAJ MARKETING, AB-98, SECTOR-I, SALT LAKE CITY, KOLKATA-70 0 064. 3. 2$ () : THE CIT(A)-XXXII, KOLKATA. 4. 2$/ THE C.I.T., KOL - 5 =5 .$ / DR, ITAT, KOLKATA BENCHES, KOLKATA 6 GUARD FILE . /7 ./ TRUE COPY, !2$3/ BY ORDER, (DKP) > ? / DY/ASSTT. REGISTRAR .