ACIT, Alwar V. ASHIANA ISPAT LIMITED, Alwar

ITA 410/JPR/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2001 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 22-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Question of law

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 607 & 410/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14 & 14-15. THE ACIT, CIRCLE-2, ALWAR. CUKE VS. M/S. ASHIANA ISPAT LTD., A-1116, RIICO INDUSTRIAL AREA, PHASE-III, BHIWADI, ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AACCA 8749 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL. CIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI NIRAJ JAIN (CA) SHRI P.K. MISHRA (CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 12.10.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 13/10/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THESE TWO APPEALS BY THE BY THE REVENUE ARE FILED A GAINST THE SEPARATE ORDERS OF LD. CIT (A), ALWAR DATED 23.05.2017 AND 2 4.03.2017 PERTAINING TO ASSESSMENT YEARS 2013-14 AND 2014-15. SINCE IDENTI CAL GROUNDS HAVE BEEN RAISED, BOTH THE APPEALS ARE TAKEN UP TOGETHER AND ARE BEIN G DECIDED BY WAY OF A CONSOLIDATED ORDER. FIRST, WE TAKE UP REVENUES AP PEAL IN ITA NO. 607/JP/2017 PERTAINING TO ASSESSMENT YEAR 2013-14. THE REVENUE HAS RAISED THE FOLLOWING GROUND OF APPEAL :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , LD. CIT (A) ERRED IN DELETING WITHOUT GIVING ANY SPECIFIC FINDINGS, THE ADDITION OF RS. 1,08,90,067/- MADE BY THE ASSESSING OFFICER ON ACCO UNT OF 2 ITA NOS. 607 & 410/JP/2017 M/S. ASHIANA ISPAT LTD., ALWAR. DISALLOWANCE OF COMMISSION ON PURCHASE AND SALES, S INCE THE ASSESSEE HAS FAILED TO DISCHARGE ITS ONUS TO ESTABLISH THAT THE SERVICES WERE ACTUALLY RENDERED BY THE BROKERS. 2. THE ONLY EFFECTIVE GROUND IS AGAINST DELETION OF ADDITION OF RS. 1,08,90,067/- MADE ON ACCOUNT OF DISALLOWANCE OF COMMISSION ON PU RCHASE AND SALES. 2.1. THE LD. D/R SUPPORTED THE ORDER OF ASSESSING O FFICER AND SUBMITTED THAT THE LD. CIT (A) WAS NOT JUSTIFIED IN DELETING THE ADDIT ION. 2.2. ON THE CONTRARY, THE LD. COUNSEL FOR THE ASSES SEE SUBMITTED THAT THE DISALLOWANCE IS SIMILAR AS IN EARLIER YEAR. THE MAT TER TRAVELLED UPTO THE JURISDICTIONAL HIGH COURT AND THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. THERE IS NO CHANGE INTO THE FACTS AND CIRCUMSTANCES IN THE PRES ENT CASE. THEREFORE, HE SUBMITTED THAT IN VIEW OF THE JUDGMENT OF THE HONB LE JURISDICTIONAL HIGH COURT THE GROUND RAISED IN THE PRESENT APPEAL DESERVES TO BE REJECTED. 2.3. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE M ATERIAL ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FI ND THAT LD. CIT (A) HAS GIVEN FINDING OF FACT IN PARA 5.3 TO 5.3.2 OF HIS ORDER A S UNDER : 5.3. I HAVE GONE THROUGH THE ASSESSMENT ORDER AS WELL AS SUBMISSIONS MADE BY THE APPELLANT. FOLLOWING FACTS HAVE EMERGED ; 1. THAT THE APPELLANT IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND TRADING OF TMT BARS AND MS INGOTS . 2. THAT DURING THE YEAR UNDER CONSIDERATION, THE APPEL LANT COMPANY HAS DEBITED AN AMOUNT OF RS. 1,08,90,067/- AS BROKERAGE AND COMMISSION. 3 ITA NOS. 607 & 410/JP/2017 M/S. ASHIANA ISPAT LTD., ALWAR. 3. THAT THE BROKERAGE AND COMMISSION WERE PAID TO FACI LITATE SALE OF THEIR PRODUCT AS PER AGREEMENT SIGNED WITH THE BROKERS. 4. THAT THE BROKERAGE AND COMMISSION WERE PAID TO BROK ERS THROUGH CHEQUE AND AFTER DEDUCTION OF TDS. 5. THAT THE A.O. HAS OBSERVED THAT THE BROKERAGE AND COMMISSION WERE BOOKED MOSTLY ON THE LAST DAY OF TH E FINANCIAL YEAR AND PAYMENTS WERE ALSO MADE DURING L AST MONTH OF F.Y. THE A.O. HAS FURTHER OBSERVED THAT MO ST OF THE BROKERS ARE FAMILY MEMBERS. ACCORDINGLY, THE A. O. HAS DISALLOWED THE EXPENDITURE W.R.T. BROKERAGE AND COM MISSION AND ADDED THE AMOUNT OF RS. 1,08,90,067/- IN THE IN COME OF THE ASSESSEE COMPANY. 6. THAT THE APPELLANT COMPANY HAS STATED THAT NO BROKE RS ARE FAMILY MEMBERS OF ANY DIRECTOR OF THE COMPANY. 7. THAT THE ASSESSEE COMPANY HAS SUBMITTED THAT ON THE SIMILAR ISSUE IN THE ASSESSEES OWN CASE FOR PRECED ING YEARS, HONBLE ITAT AND ALLOWED THE BROKERAGE/COMMISSION A ND WHICH WAS CONFIRMED BY THE HONBLE RAJASTHAN HIGH C OURT ALSO. 5.3.2. I HAVE CONSIDERED THE ABOVE MENTIONED FACTS. I HAVE ALSO TAKEN INTO CONSIDERATION THE HONBLE ITAT JAIPUR ORDER IN THE APPELLANTS OWN CASE FOR PRECEDING YEAR. HONBLE ITAT HAS OBSERVED AS UNDER :- 3.4. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE M ATERIAL AVAILABLE ON RECORD AND GONE THROUGH ORDERS OF THE AUTHORITIES BELOW. THE FACTS OF THE CASE ARE IDENTICAL TO A.Y. 2010-11. THE ASSESSEE HAD FILED THE COPY OF AGREEMENT, CONFIRMAT IONS AND IT IS A FACT THAT THE ASSESSEE HAD DEDUCTED TDS, THE R ECIPIENT HAD PAN NUMBERS AND ASSESSEE HAS ESTABLISHED THAT THEY HAVE RENDERED SERVICES TO PROVIDE THE CUSTOMER FOR SELLI NG THE TMT BAR & M.S. INGOTS. THE LD. CIT (A) ALLOWED TH E CLAIM OF THE ASSESSEE BY PLACING RELIANCE ON THE ORDER OF TH E TRIBUNAL IN 4 ITA NOS. 607 & 410/JP/2017 M/S. ASHIANA ISPAT LTD., ALWAR. THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 20 03-04 TO 2009-10. WE FIND SUPPORT FROM THE ORDER OF THE HON BLE COORDINATE BENCH OF ITAT JAIPUR IN ITA NO. 535/JP/2 015 DATED 30.10.2015 WHEREIN THE HONBLE COORDINATE BENCH BY FOLLOWING THE EARLIER ORDER OF THE TRIBUNAL IN ITA NO. 191/JP /2014 & 472 TO 477/JP/2012 FOR THE A.Y. 2003-04 TO 2009-10 ALLO WED THE APPEAL OF THE ASSESSEE. THEREFORE, RESPECTFULLY FOL LOWING THE COORDINATE BENCH DECISION IN ASSESSEES OWN CASE ON IDENTICAL FACTS AND CIRCUMSTANCES, WE UPHOLD THE ORDER OF LD. CIT (A). ACCORDINGLY, REVENUES APPEALS ARE DISMISSED. HONBLE RAJASTHAN HIGH COURT IN ITS ORDER DATED 29/ 11/2016 HAS DISMISSED THE REVENUES APPEAL ON THIS ISSUE. THE R ELEVANT PART OF HIGH COURT ORDER IS AS UNDER : 5. TAKING INTO CONSIDERATION THE DETAILS WHICH WERE FURNISHED REGARDING COPY OF AGREEMENT, CONFIRMATION S AND DEDUCTION OF TDS, THE RECIPIENT HAD PAN NUMBERS AND ASSESSEE HAS ESTABLISHED THEY HAVE RENDERED SERVICES TO PROV IDE THE CUSTOMERS AND PAYMENT WAS MADE BY CHEQUE, IN OUR VI EW, THE VIEW TAKEN BY THE TRIBUNAL IS JUST AND PROPER. NO S UBSTANTIAL QUESTION OF LAW ARISES IN THESE APPEAL. 6. THE APPEAL ARE DEVOID OF MERIT AND DESERVE TO BE DISMISSED. THE SAME ARE DISMISSED. THEREFORE, I HAVE TAKEN INTO CONSIDERATION HONBLE ITAT JAIPUR BENCH ORDER IN APPELLANTS OWN CASE IN PRECEDING YEARS AN D CONFIRMED BY THE HONBLE RAJASTHAN HIGH COURT AS STATED ABOVE. IN TH E PRESENT APPEAL THE FACTS AND CIRCUMSTANCES OF THE CASE IS IDENTICA L TO PRECEDING YEARS WHERE THE COURT HAS ALREADY ALLOWED THE APPEAL OF T HE APPELLANT. THEREFORE, THE ADDITION ON SIMILAR GROUNDS AMOUNTIN G TO RS. 1,08,90,067/- IS DELETED. APPELLANTS GROUND OF APP EAL ON THE ISSUE IS ALLOWED. THE HONBLE JURISDICTIONAL HIGH COURT IN DB INCOME TAX APPEAL NO. 92/2015 HAS HELD AS UNDER :- 5 ITA NOS. 607 & 410/JP/2017 M/S. ASHIANA ISPAT LTD., ALWAR. 3. AT THE OUTSET, LEARNED COUNSEL FOR THE APPELLA NT SUBMITTED THAT THE ISSUE IS SQUARELY COVERED BY THE DIVISION BENCH JUDGMENT OF THIS COURT IN D.B. INCOME TAX APPEAL NO. 95/2015 (PRINCI PAL COMMISSIONER OF INCOME TAX (CENTRAL), JAIPUR VS. M/S. ASHIANA IS PAT LTD.) DECIDED ON 29.11.2016 WHEREIN IT HAS BEEN HELD AS UNDER :- TAKING INTO CONSIDERATION THE DETAILS WHICH WERE FURNISHED REGARDING COPY OF AGREEMENT, CONFIRMATIONS AND DEDU CTIONS OF TDS, THE RECIPIENT HAD PAN NUMBERS AND ASSESSEE HAS ESTABLISHED THEY HAVE RENDERED SERVICES TO PROVIDE THE CUSTOMERS AND PAYMENT WAS MADE BY CHEQUE, IN OUR VI EW, THE VIEW TAKEN BY THE TRIBUNAL IS JUST AND PROPER. NO S UBSTANTIAL QUESTION OF LAW ARISES IN THESE APPEAL. THE APPEALS ARE DEVOID OF MERIT AND DESERVE TO BE D ISMISSED. THE SAME ARE DISMISSED. THERE IS NO CHANGE INTO THE FACTS AND CIRCUMSTANCES IN THE PRESENT CASE UNDER CONSIDERATION. THE REVENUE HAS NOT BROUGHT ANY MAT ERIAL TO DEMONSTRATE THAT THERE IS CHANGE IN THE FACTS AND CIRCUMSTANCES. THEREFOR E, WE DO NOT SEE ANY REASON TO INTERFERE INTO THE FINDINGS OF THE LD. CIT (A), THE SAME IS HEREBY AFFIRMED. APPEAL OF THE REVENUE IS DISMISSED. 4. NOW, WE TAKE UP THE APPEAL OF THE REVENUE IN ITA NO. 410/JP/2017 PERTAINING TO ASSESSMENT YEAR 2014-15. THE GROUND RAISED BY THE REVENUE IS AS UNDER :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, LD. CIT (A) HAS ERRED IN DELETING WITHOUT GIVING ANY SPECIFIC FINDI NGS, THE ADDITION OF RS. 77,44,145/- MADE BY THE ASSESSING OFFICER ON AC COUNT OF DISALLOWANCE OF COMMISSION ON PURCHASE AND SALES, S INCE THE ASSESSEE HAS FAILED TO DISCHARGE ITS ONUS TO ESTABLISH THAT THE SERVICES WERE ACTUALLY RENDERED BY THE BROKERS. 6 ITA NOS. 607 & 410/JP/2017 M/S. ASHIANA ISPAT LTD., ALWAR. 5. WE HAVE ALREADY ADJUDICATED THE IDENTICAL GROUND IN THE REVENUES APPEAL HEREIN ABOVE IN ITA NO. 607/JP/2017 PERTAINING TO A .Y. 2013-14. THE DECISION ARRIVED THEREIN IS APPLICABLE TO THE PRESENT CASE U NDER CONSIDERATION. THEREFORE, TAKING A CONSISTENT VIEW OF THE MATTER, WE REJECT T HE GROUND OF THE REVENUE. THE APPEAL OF THE REVENUE IS DISMISSED. 6. IN TOTALITY, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 13.10. 2017. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 13/10/2017. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- THE ACIT, CIRCLE-2, ALWAR. 2. THE RESPONDENT M/S. ASHIANA ISPAT LTD., ALWAR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 607 & 410/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 7 ITA NOS. 607 & 410/JP/2017 M/S. ASHIANA ISPAT LTD., ALWAR.