SURESHKUMAR GHEWARCHAND HUNDIA, MUMBAI V. ACIT CC 14, MUMBAI

ITA 4324/MUM/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7869 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 27-07-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 25-06-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VISHWAS MUNDEDR
• Assessee Lawyers: PRATIK JAIN ARS
• Keywords: Reasonable cause

Judgement Text

, INCOME-TAX APPELLATE TRIBUNAL -EBENCH MUMBAI , , BEFORE S/SH.RAJENDRA,ACCOUNTANT MEMBER AND AMARJIT SINGH,JUDICIAL MEMBER ./I.T.A./4324/MUM/2012, / ASSESSMENT YEAR: 2007-08 ./I.T.A./4325/MUM/2012, / ASSESSMENT YEAR: 2008-09 SURESHKUMAR GHEWARCHAND HUNDIA 14/A, BHARTA NAGAR, OPP. SHALIMAR CINEMA, GRANT ROAD,MUMBAI-400 007. PAN:AAQPH 7289 E VS. ACIT CC-14 MUMBAI. ( /APPELLANT ) ( / RESPONDENT) / REVENUE BY: SHRI VISHWAS MUNDE-DR /ASSESSEE BY: S/SHRI SHAILESH PARMAR & PRATIK JAIN -ARS / DATE OF HEARING: 24/03/2017 / DATE OF PRONOUNCEMENT: 31/03/2017 / PER RAJENDRA, AM - CHALLENGING THE ORDERS DATED 15.03.2012 OF THE CIT (A)- 37,MUMBAI,THE ASSESSEE HAS FILED APPEALS FOR THE ABOVE MENTIONED TWO ASSESSMENT YEAR S(AY.S).AS THE ISSUES ARE COMMON IN BOTH THE APPEALS,SO,WE ARE ADJUDICATING THEM BY PAS SING A COMMON ORDER. 2. THE APPEALS WERE FILED LATE.IN HIS AFFIDAVIT,THE AS SESSEE HAS STATED THAT THERE WAS DELAY OF 28 DAYS IN FILING THE APPEALS,THAT HE WAS ADVISED COMP LETE BED-REST BY THE DOCTOR.IN HIS APPLICATION FOR CONDONING THE DELAY HE HAS REQUESTE D THAT THERE WAS REASONABLE CAUSE FOR NOT FILING THE APPEALS ON TIME.BEFORE US,THE AUTHORISED REPRESENTATIVE (AR) REITERATED THE SAME ARGUMENTS WHICH ARE PART OF THE AFFIDAVIT AND APPLI CATION OF THE ASSESSEE.THE DEPARTMENTAL REPRESENTATIVE (DR) LEFT THE ISSUE TO THE DISCRETIO N OF THE BENCH. WE HAVE PERUSED THE APPLICATION AND AFFIDAVIT AND HOLD THAT ASSESSEE WAS PREVENTED BY A REASONABLE CAUSE FOR NOT FILING THE APPEALS ON TIME.THEREFORE, WE CONDONE TH E DELAY. 3. ASSESSEE,AN INDIVIDUAL,IS ENGAGED IN THE BUSINESS O F IMPORT AND EXPORT OF GOLD, SILVER AND BULLION AND CONNECTED ACTIVITIES.THE DETAILS OF DAT ES OF FILING OF RETURNS, RETURNED INCOMES, DATES OF ASSESSMENT ETC. CAN BE SUMMARISED AS UNDER : AY ROI FILED ON RETURNED INCOME ASSESSMENT DATE ASS ESSED INCOME 2007-08 31.10.2007 RS.1.17 CRORES 27.12.2010 RS.1. 42 CRORES 2008-09 06.10.2008 RS.73.06 LAKHS 27.12.2010 RS.1.0 1 CRORES 4324&4325/M/12(07-08&08-09) SURESHKUMAR GHEWARCHAND HUNDIA 2 I.T.A./4324/MUM/2012,AY. 2007-08: 3.1. EFFECTIVE GROUND OF APPEAL (GOA) IS ABOUT ADDITION OF RS.25.00 LAKHS. DURING THE ASSESSMENT PROCEEDING THE AO FOUND THAT THE ASSESSE E HAD CLAIMED THE EXPENSES, BEING ONE TIME PAYMENT OF COMMISSION, OF RS.25.00 LAKHS, THAT THE ASSESSEE HAD MADE THE SAID PAYMENT TO M/S. NOVA SCOTIA (NOVA), THAT IT DID NOT DEDUCT TAX AT SOURCE FOR THE PAYMENT MADE, THAT AS PER THE PROVISIONS OF SECTION 194H OF THE ACT,HE WA S REQUIRED TO DO SO.INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT, THE AO ASKED THE ASSESSEE TO EXPLAIN AS TO WHY AN AMOUNT OF RS.25LAKHS SHOULD NOT BE DISALLOWED FOR NON DEDUCTION OF TAX.AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE,DT. 1.11.2010, THE A O HELD THAT THE PAYMENT MADE TO NOVA WAS SHOWN AS COMMISSION IN THE BOOKS OF ACCOUNTS, THAT THE TERM COMMISSION OR BROKERAGE AS DEFINED IN SECTION 194H OF THE ACT WAS INCLUSIVE DE FINITION.REFERRING TO THE ORDER FOR THE AY. 2006-07 THE AO, OBSERVED THAT SIMILAR DISALLOWANCE WAS MADE BY HIS PREDECESSORS U/S. 40(A) (IA) OF THE ACT, THAT THE ORDER WAS CONFIRMED BY TH E FIRST APPELLATE AUTHORITY (FAA). FINALLY, HE MADE AN ADDITION OF RS.25 LAKHS TO THE TOTAL INC OME OF THE ASSESSEE. 3.2. AGGRIEVED BY ORDER OF THE AO THE ASSESSEE PREFERR ED AN APPEAL BEFORE THE FAA. BEFORE HIM, IT WAS ARGUED THAT THE IMPUGNED SUM OF RS.25 LAKHS WAS A ONE-TIME PREMIUM THAT IT WAS NOT COMMISSION. AFTER CONSIDERING AVAILABLE MATERIA L THE FAA REFERRED TO HIS PREDECESSOR FOR EARLIER AY. FOLLOWING THE SAME HE DISMISSED THE AP PEAL FILED BY THE ASSESSEE. 3.3. BEFORE US,THE AUTHORISED REPRESENTATIVE(AR)STATED T HAT THE RECIPIENT , NOVA HAD PAID THE TAXES ON THE SAID AMOUNT, THAT PROVISIONS OF SECTIO N 40(A)(IA) WERE NOT APPLICABLE IN SUCH CASES.HE REFERRED TO THE CASE OF NAVUBHAJ CHAVDA (I TA/592/RJT/2014-A.Y.09-10, DT.20. 2. 2017)AND ANSAL LANDMARK TOWNSHIP (P.) LTD.(279CTR38 4).THE DEPARTMENTAL REPRESENTA - TIVE(DR)STATED THAT THERE WAS NO EVIDENCE THAT RECI PIENT HAD PAID TAXES OR WAS ASSESSED TO TAX IN INDIA. IN HIS REJOINDER, THE AR STATED THAT NOVA WAS ASSESSED TO TAX IN INDIA WITH THE DCIT (INTL.TAXN.) CIRCLE-1 (2)(1), MUMBAI.HE ALSO FURNIS HED THE DETAILS OF PAN OF NOVA ALONGWITH THE FORM NO.16A. WE FIND THAT PAPERS FILED BEFORE US,BY THE ASSESSEE ,WERE NOT AVAILABLE TO THE AO/FAA BESIDES BOTH THE AUTHORITIES DID NOT HAVE THE BENEFIT OF J UDGEMENT OF ANSAL LANDMARK TOWNSHIP (P.) LTD.(SUPRA),OF THE HON'BLE DELHI HIGH COURT THEREF ORE, WE ARE OF THE OPINION THAT IN THE INTEREST OF JUSTICE MATTER SHOULD BE RESTORED BACK TO AO FOR FRESH ADJUDICATION. HE IS DIRECTED TO AFFORD A REASONABLE OPPORTUNITY OF HEARING TO T HE ASSESSEE AND DECIDE THE ISSUE AFRESH AFTER 4324&4325/M/12(07-08&08-09) SURESHKUMAR GHEWARCHAND HUNDIA 3 CONSIDERING THE MATERIAL PRODUCED BEFORE US AND CAS E LAWS RELIED UPON BY THE ASSESSEE. EFFECTIVE GROUND OF APPEAL IS DECIDED IN FAVOUR OF THE ASSESSEE IN PART. ITA/4325/MUM/2012,AY-2008-09 : 4. FOLLOWING OUR ORDER FOR EARLIER YEAR WE RESTORE BAC K THE MATTER TO THE FILE OF AO FOR FRESH ADJUDICATION AS FACTS OF THE CASE UNDER CONSIDERATI ON ARE IDENTICAL TO FACTS FOR AY 2007-08. AS A RESULT APPEALS FILED BY THE ASSESSEE STAND PA RTLY ALLOWED. . ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST MARCH , 2017. 31 , 2017 SD/- SD/- ( / AMARJIT SINGH ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; /DATED : 31 .03.2017. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.