Sundeep Kumar Shantilalji, CHENNAI V. ACIT, CHENNAI

ITA 448/CHNY/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8646 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 16-06-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 29-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M MURUGABOOPATHY
• Assessee Lawyers: R PADMANABHAN

Judgement Text

, / , IN THE INCOME TAX APPELLATE TRIBUNAL B SMC BENCH, CHENNAI ... , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER !./ ITA NO.448/MDS/2016 # $%# / ASSESSMENT YEAR : 2011-12 SHRI SUNDEEP KUMAR SHANTILALJI, FLAT T-2, JAIN ANKUSH PRAKASH, NO.6/11, RANGANATHAN AVENUE ROAD, KILPAUK, CHENNAI - 600 034. PAN : ABCPS 0897 C V. THE ASSISTANT COMMISSIONER OF INCOME TAX, NON CORPORATE CIRCLE 5, CHENNAI - 600 006. ('(/ APPELLANT) ()*'(/ RESPONDENT) '( + , / APPELLANT BY : SHRI R. PADMANABHAN, CA )*'( + , / RESPONDENT BY : SHRI M. MURUGABOOPATHY, ADDL. CI T - $ + ./ / DATE OF HEARING : 16.06.2016 01% + ./ / DATE OF PRONOUNCEMENT : 18.08.2016 / O R D E R THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) 5, CHENNAI, DATED 01.01.2016 AND PERTAINS TO ASSESSMENT YEAR 2011-12. 2. SHRI R. PADMANABHAN, THE LD. REPRESENTATIVE FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSEE CLAIMED DEDUCTION OF PA YMENT OF 2 I.T.A.NO.448/MDS/16 COMMISSION TO THE EXTENT OF ` 25,00,000/-. ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSEE AND HIS FATHER ARE CO- OWNERS OF PROPERTY AND THE TOTAL COMMISSION PAID WAS ` 50,00,000/-. THE ASSESSING OFFICER ALLOWED ` 5,00,000/- OF THE COMMISSION SAID TO BE PAID AND DISALLOWED ` 45,00,000/-. IN THE CASE OF THE ASSESSEES FATHER SHRI NITESH KUMAR SHANTILALJI, THE ASSESSING OFFICER ALL OWED 50% OF THE COMMISSION PAID AND DISALLOWED ` 22,50,000/-. HOWEVER, THE CIT(APPEALS) IN THE CASE OF THE ASSESSEE, CONFIRMED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER TO THE EXTENT OF OF ` 22,50,000/-. THE REVENUE FILED APPEAL BEFORE THIS TRIBUNAL IN THE AS SESSEES FATHER CASE AND THIS TRIBUNAL, BY AN ORDER DATED 29.05.201 5 IN I.T.A. NO.2924/MDS/2014 REMITTED BACK THE MATTER TO THE FI LE OF THE ASSESSING OFFICER FOR RECONSIDERATION. IN VIEW OF THE ABOVE, THE LD. REPRESENTATIVE SUBMITTED THAT THIS ISSUE RAISED BY THE ASSESSEE MAY ALSO BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER AS IT WAS DONE BY THIS TRIBUNAL IN THE CASE OF THE ASSESSEES FATH ER SHRI NITESH KUMAR SHANTILALJI. 3. ON THE CONTRARY, SHRI M. MURUGABOOPATHY, THE LD. DEPARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASS ESSEES CLAIM ALONG WITH HIS FATHER WAS ` 50,00,000/-. THE ASSESSING OFFICER, IN FACT, 3 I.T.A.NO.448/MDS/16 ACCEPTED THE COMMISSION PAYMENT OF ` 5,00,000/-. HOWEVER, HE DISALLOWED THE CLAIM TO THE EXTENT OF ` 45,00,000/-. HE ALSO CLARIFIED THAT WHEN THE ASSESSEES FATHER SHRI NITESH KUMAR S HANTILALJI FILED APPEAL BEFORE THE CIT(APPEALS), THE CIT(APPEALS) AL LOWED THE CLAIM. IN THE PRESENT CASE, THE CIT(APPEALS) CONFIRMED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER TO THE EXTENT OF ` 45,00,000/-. ACCORDING TO THE LD. D.R., WHEN THE REVENUE TOOK TH E MATTER BEFORE THIS TRIBUNAL BY WAY OF APPEAL IN THE CASE OF SHRI NITESH KUMAR SHANTILALJI, THIS TRIBUNAL, AS RIGHTLY SUBMITTED BY THE LD. REPRESENTATIVE, REMITTED THE MATTER BACK TO THE FILE OF THE ASSESSI NG OFFICER FOR RECONSIDERATION. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHE R SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSEE CLAIMS SALES COMMISSION EXPENDITURE OF ` 25,00,000/- OUT OF TOTAL COMMISSION ` 50,00,000/- SAID TO BE PAID BY THE ASSESSEE AND HIS FATHER. THE ASSESSING OFFICER ALLOWED ` 2,50,000/- AND DISALLOWED ` 22,50,000/-. AS RIGHTLY SUBMITTED BY THE LD. REPRE SENTATIVE FOR THE ASSESSEE AND THE LD. D.R., IN THE CASE OF ASSESSEE S FATHER IN RESPECT OF SALE OF VERY SAME LAND, THE COMMISSION SAID TO B E PAID WAS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER BY AN ORD ER DATED 29.05.2015. 4 I.T.A.NO.448/MDS/16 SINCE THE ISSUE IS IDENTICAL AND THE COMMISSION PAI D HAS NEXUS WITH THAT OF ASSESSEES FATHER, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS TO RE-EXAMINE THE MATTER. ACCORDINGLY, THE ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE AND T HE ISSUE OF DISALLOWANCE OF ` 22,50,000/- IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE- EXAMINE THE ISSUE AFRESH IN THE LIGHT OF THE MATERIAL THAT MAY BE FIL ED BY THE ASSESSEE AND THEREAFTER DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 18 TH AUGUST, 2016 AT CHENNAI. SD/- ( ... ) (N.R.S. GANESAN) /JUDICIAL MEMBER /CHENNAI, 3! /DATED, THE 18 TH AUGUST, 2016. KRI. 5 I.T.A.NO.448/MDS/16 + ).45 65%. /COPY TO: 1. '( /APPELLANT 2. )*'( /RESPONDENT 3. - 7. () /CIT(A)-5, CHENNAI 4. PRINCIPAL CIT-9, CHENNAI 5. 5$8 ). /DR 6. 9# : /GF.