ITO 27(1)(5), NAVI MUMBAI V. JYOTI IMPEX, MUMBAI

ITA 4353/MUM/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9783 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 14-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

JYOTI IMPEX ITA 4353/M/2015 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH J, MU MBAI BEFORE SH. RAJENDRA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 4353 /MUM/2015 (ASSESSMENT YEAR- 2011-12) ITO - 27(1)(5), MUMBAI 4 TH FLOOR, TOWER NO. 6, ROOM NO.410, VASHI RAILWAY STATION COMPLEX, VASHI, NAVI MUMBAI-400703 PAN: AAFFJ8683D VS. M/S JYOTI IMPEX , NO. 27, ZEST BUSINESSES SPACES, MG ROAD GHATKOPAR-E, MUMBAI 400077 (APPELLANT) (RESPONDENT) REVENUE REPRESENTED BY: MS. ANJU GARODIA DR ASSESSEE REPRESENTED BY: SH. HARISH V.S. ADVOCATE DATE OF HEA RING: 27.07.2017 DATE OF ORDER: 27.07.2017 ORDER UNDER SECTION 254(1) OF INCOME- TAX ACT PER PAWAN SINGH JUDICIAL MEMBER , 1. THIS APPEAL BY REVENUE UNDER SECTION 253 OF INCOME- TAX ACT (ACT) IS DIRECTED AGAINST THE ORDER OF COMMISSIONER (APPEALS ) DATED 30 APRIL 2015 FOR ASSESSMENT YEAR 2011-12. THOUGH, THE REVEN UE HAS RAISED AS MANY AS SIX GROUNDS OF APPEAL. HOWEVER, AS PER OUR CONSIDERED VIEW THE ONLY SUBSTANTIAL GROUND OF APPEAL IS WHETHER THE L EARNED COMMISSIONER (APPEALS) ERRED IN DELETING THE ADDITION OF RS.44,8 8,669/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF COMMISSION PAYMENT. REST OF THE GROUNDS OF APPEAL IS NARRATIVE OR ARGUMENTATIVE IN NATURE. JYOTI IMPEX ITA 4353/M/2015 2 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS ENGAGE D IN THE BUSINESS OF TRADING AND EXPORT OF MEDICINE AND ENGINEERING GOOD S, FILED ITS RETURN OF INCOME FOR RELEVANT ASSESSMENT YEAR ON 20 SEPTEMBER 2011. THE ASSESSMENT WAS COMPLETED ON 24 TH OF MARCH 2014 UNDER SECTION 143(3) OF THE ACT. THE ASSESSING OFFICER WHILE FRAMING ASSESS MENT ORDER BESIDES OTHER ADDITIONS AND DISALLOWANCE MADE ADDITION BY D ISALLOWING THE COMMISSION PAYMENT PAID TO NON-RESIDENT OF RS. 44,8 8,669/-. ON APPEAL BEFORE COMMISSIONER (APPEALS) THE ADDITION WAS DELE TED. AGGRIEVED, BY THE ORDER OF COMMISSIONER (APPEALS) THE REVENUE HAS FILED PRESENT APPEAL BEFORE US. 3. WE HAVE HEARD THE LEARNED DR FOR REVENUE AND PERUSE D THE MATERIAL AVAILABLE ON RECORD. THE LEARNED DR FOR REVENUE ARG UED THAT THE COMMISSIONER (APPEALS) DELETED THE ADDITION WITHOUT APPRECIATING THE FACT THAT THE AGENT HAS NOT RENDERED ANY SERVICES, NO EVIDENCE FOR RENDERING THEIR SERVICES TO THE ASSESSEE WAS FURNIS HED BY THE ASSESSEE. THE ASSESSEE HAS NOT PROVED THE SERVICES RENDERED BY TH E AGENTS. IT WAS PRAYED THAT THE ORDER OF LD COMMISSIONER (APPEALS) MAY BE REVERSED BY RESTORING THE ORDER ASSESSING OFFICER. ON THE OTHER HAND THE LD AR FOR THE ASSESSEE SUBMITS THAT THE GROUND OF APPEAL RAISED BY REVENUE IS COVERED IN FAVOUR OF ASSESSEE BY THE ORDER OF TRIBUNAL FOR ASSESSMENT YEAR 2009-10. 4. WE HAVE CONSIDERED THE SUBMISSION OF LEARNED REPRES ENTATIVES OF THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. ON PERUSAL OF ORDER JYOTI IMPEX ITA 4353/M/2015 3 OF COMMISSIONER (APPEALS) WE FIND THAT SIMILAR DISA LLOWANCE WAS MADE FOR ASSESSMENT YEAR 2009- 10. THE ASSESSEE FILED AP PEAL BEFORE A TRIBUNAL WHITE ITA NUMBER 1671//M/2013. THE TRIBUNAL VIDE OR DER DATED 3 RD MAY 2013 ALLOWED THE DEDUCTION ON COMMISSION PAID TO TH E NON-RESIDENT PARTIES. THE LEARNED COMMISSIONER (APPEALS) WHILE P ASSING THE ORDER FOR THE YEAR UNDER CONSIDERATION FOLLOWED THE ORDER FOR ASSESSMENT YEAR 200910. THE LEARNED DR FAILED TO DIFFERENTIATE AS T O HOW THE FACT OF THE YEAR UNDER CONSIDERATION IS DIFFERENT TO THE EARLIE R YEAR. THE COMMISSION PAYMENT IN THE YEAR UNDER CONSIDERATION ARE ALSO PA ID TO THE SAME PARTIES I.E MR. V.J. PATEL AND MRS MRIDULA H JIVAN ( PARA 8 OF AO ORDER), TO WHOM IT WAS PAID IN EARLIER YEAR. THUS, WE FIND TH AT GROUNDS OF APPEAL RAISED BY THE VENUE ARE IN FACT COVERED AGAINST THE REVENUE. THUS, RESPECTFULLY FOLLOWING THE DECISION OF TREBLE IN AS SESSEE JOHN CASE FOR EARLIER YEAR, WE DO NOT FIND ANY REASON TO INTERFER E IN THE ORDER OF BRANDED COMMISSIONER (APPEALS). HENCE THE GROUND OF APPEAL RAISED BY THE REVENUE IS DISMISSED. 5. IN THE RESULT APPEAL FILED BY THE REVENUE IS DISMIS SED ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH OF JULY 2017. SD/- SD/- (RAJENDRA) (PAWAN SINGH) (ACCOUNTANT MEMBER) JUDICIAL MEMBER MUMBAI; DATED 27 /07/2017 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. JYOTI IMPEX ITA 4353/M/2015 4 BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/