ASST CIT CIR 3, KALYAN V. VINOD RATAN PATIL, DOMBIVALI

ITA 4573/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9319 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 01-06-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 06-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH F, MUMBAI BEFORE D.T. GARASIA, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.4573/M/2015 ASSESSMENT YEARS: 2011-12 ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-3, 2 ND FLOOR, RANI MANSION, MURBAD ROAD, KALYAN (W) 421301 VS. SHRI VINOD RATAN PATIL SHANTI NIWAS, KATAI GAON, KALYAN SHIL ROAD, DOMBIVLI (E) 421201 PAN NO.AKWPP4159M (APPELLANT) (RESPONDENT) PRESENT FOR: REVENUE BY :, SHRI T. A. KHAN D.R. ASSESSEE BY : SHRI VIJAY KUMAR PRAJAPATI, A.R. DATE OF HEARING : 07.09.2017 DATE OF PRONOUNCEMENT : 20.09.2017 O R D E R PER D.T. GARASIA , JUDICIAL MEMBER: THE ABOVE TITLED APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAINST THE ORDER DATED 29.05.2015 OF THE COMMISSIONER OF INCOM E TAX (APPEALS) I, THANE [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEV ANT TO ASSESSMENT YEAR 2011- 12. 2. THE EFFECTIVE GROUNDS OF THE APPEAL: 1.1 WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE HONBLE CIT(A) ERRED IN DELETING THE DISALLOWANCE O F RS.75,00,000/- IN RESPECT OF SHRI KASHINATH PATIL ON THE BASIS OF ADD ITIONAL EVIDENCE WITHOUT OBTAINING REMAND REPORT FROM THE A.O. AS PER THE PR OVISIONS OF RULE 46A. 3. THE SHORT FACTS OF THE CASE ARE AS UNDER:- 3. THE BRIEF FACTS OF THE CASE ARE THAT IN THIS CAS E THE RETURN, DECLARING TOTAL INCOME OF RS.37,41,570/-, WAS FILED ON 06.10.2011. THE ASSESSEE ENJOYS INCOME FROM BUSINESS OF TRANSPORT AND GENERAL COMMI SSION. THE ASSESSMENT U/S.143(3) OF THE ACT, 1961, WAS FINALIZED ON 28.02 .2014, AT TOTAL INCOME OF RS.2,18,16,160/-, BY MAKING THE ADDITIONS/ DISALLOW ANCES. 6.2 AS REGARDS THE DISALLOWANCE OF RS.75,00,000/-, CLAIMED TO HAVE BEEN PAID TO MRS. KASHINATH K. PATIL, DIRECTLY THROUGH M/S. LODH A DWELLERS, IS CONCERNED, THE SAME WAS DISALLOWED BY THE AO, ON THE GROUND TH AT THOUGH THE RECIPIENT, ITA NO.4573/M/2015 A.Y.2011-12 2 MR. KASHINATH PATIL, HAS SHOWN THE ABOVE COMMISSION INCOME, IN HIS PROFIT AND LOSS ACCOUNT BUT THE AUDITOR IN HIS AUDIT REPOR T, IN PART B, COLUMN NO.10 I.E., COMMISSION RECEIVED, HAS MENTIONED AS NIL AMO UNT. HOWEVER, IN THE REVISED REPORT, THE TYPOGRAPHICAL MISTAKE WAS DULY RECTIFIED. IN ADDITION TO THE ABOVE, THE AO FURTHER OBSERVED THAT THE APPELLA NT COULD NOT FILE CONFIRMATION FROM MR. KASHINATH PATIL AND COMPLIANC E OF NOTICE U/S.133(6) WAS NOT RECEIVED. CONSIDERING THE FACT THAT THE PA YMENTS TO MR. KASHINATH PATIL WERE MADE DIRECTLY THROUGH M/S. LODHA DWELLER S, THEREFORE, THE AO DISALLOWED THE ENTIRE AMOUNT OF RS.75,00,000/- AND ADDED BACK TO THE INCOME OF THE APPELLANT. 4. MATTER CARRIED TO CIT(A) AND CIT(A) HAS ALLOWED THE APPEAL BY OBSERVING AS UNDER:- 6.6 THE APPLICANT FURNISHED ALL RELEVANT DETAILS / DOCUMENTS / EXPLANATION TO JUSTIFY THE PAYMENT OF ABOVE BROKERAGE, TO MR. K ASHINATH PATIL. THE CHARTERED ACCOUNTANT IN HIS EXPLANATION BEFORE THE AO, ADMITTED THE FACT THAT THE COMMISSION RECEIVED, NOT MENTIONE D IN THE AUDIT REPORT, WAS A TYPOGRAPHICAL MISTAKE AND THE SAME WA S DULY RECTIFIED, IN DUE COURSE. CONSIDERING THE ABOVE FACTS, IN MY CONSIDERED OPINION, THE APPELLANT HAS DULY DISCHARGED HIS ONUS , IN RESPECT OF THE ABOVE PAYMENT. THEREFORE, THE PAYMENT OF COMMISSIO N, AMOUNTING TO RS.75,00,000/-, IN THE NAME OF MR. KASHINATH PAT IL, STANDS DULY EXPLAINED, IN THE HAND OF THE APPELLANT. ACCORDING LY, THE DISALLOWANCE MADE BY THE AO IS NOT JUSTIFIED, HENCE , DELETED. THIS GROUND OF APPEAL IS PARTLY ALLOWED. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE FIND THAT THE ASSESSING OFFICER HAS DISALLOWED RS.75,00,000/- PAI D TO MR. KASHINATH PATIL DIRECTLY THROUGH LODHA DWELLERS ON THE GROUND THAT THE RECIPIENT, MR. KASHINATH PATIL HAS SHOWN ABOVE COMMISSION INCOME I N HIS PROFIT & LOSS ACCOUNT BUT AUDITOR HAS SHOWN HIS AUDIT REPORT AS C OMMISSION INCOME RECEIVED NIL. HOWEVER, THIS FACT WAS RECTIFIED BEFORE COMMI SSIONER. THE COMMISSIONER HAS VERIFIED THE PROFIT & LOSS ACCOUNT , AUDIT REPORT AND BANK ACCOUNT AND HE HAS ALSO VERIFIED THE TDS AND DELETE D THE ADDITION, THEREFORE OUR INTERFERENCE IS NOT REQUIRED. 6. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. ITA NO.4573/M/2015 A.Y.2011-12 3 ORDER PRONOUNCED IN THE OPEN COURT ON 20.09.2017. SD/- SD/- (RAJESH KUMAR) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 20.09.2017. * MP . / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ) ( / THE CIT(A)- 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / /(DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI