M/S ARIHANT ENTERPRISES, Jaipur V. DCIT, Jaipur

ITA 458/JPR/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2060 (ITAT-JAIPUR)
• Duration Of Justice: 5 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 14-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROSHANTA MEENA CIT DHK
• Assessee Lawyers: S L PODDAR
• Keywords: Business income; Additional evidence; Corroborative evidences
• Section: 143(3)

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 DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 458/JP/2012 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09. M/S ARIHANT ENTERPRISES, C61, SANGRAM COLONY, C-SCHEME, JAIPUR. CUKE VS. THE DCIT, CIRLCE-6, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AABFA 9509 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L PODDAR(ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SMT. ROSHANTA MEENA ( ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 08.06.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 14/06/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER OF LD. CIT (A)-II, JAIPUR DATED 16.03.2012 PERTAINING TO A.Y. 2008-09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A)-II ERRED IN DISALLOWING BROKERAGE OF RS. 160 0000.00 PAID TO M/S DTZ INTERNATIONAL PROPERTY ADVISORS PVT. LTD. ON THE BA SIS OF BILL AND AUDIT REPORT COPY SUBMITTED BY IT WITHOUT APPRECIATING THE FACT THAT THE SAME PARTY HAS GIVEN CONFIRMATION OF ACCOUNTS CONTRARY TO THE BILL SUBMITTED BY IT LATER. THE LD. APPELLATE AUTHORITY ALSO ERRED IN CONSIDERING T HE BILL ISSUED BY M/S DTZ INTERNATIONAL PROPERTY ADVISORS PVT. LTD. AND NOT C ONSIDERING THE CONFIRMATION ISSUED BY THE SAME PARTY WITHOUT FURTHER INQUIRING ABOUT THE FACTS OF THE SAID CONFIRMATION OF ACCOUNT OR WITHOUT RECKONING IT AS A FALSE ONE. 2. THE APPELLANT PRAYS THAT THE DISALLOWANCE OF RS. 1600000.00 MADE IN RESPECT OF BROKERAGE TO M/S DTZ INTERNATIONAL PROPE RTY ADVISORS PVT. LTD. BE DELETED. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND ANY OF THE GROUNDS OF THE APPEAL AT OR BEFORE THE TIME OF HEARING OF APPEAL. 2 ITA NO. 458/JP/2012 M/S ARIHANT ENTERPRISES, JAIPUR. 2. DURING THE PROCEEDINGS, THE ASSESSEE HAS ALSO TA KEN AN ADDITIONAL GROUND THAT READS AS UNDER:- IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD . CIT(A) HAS ERRED IN NOT CONSIDERING THE CONFIRMATION SUBMITTED BY THE ASSES SEE AND ALSO NOT CONFRONTING THE ADDITIONAL EVIDENCES COLLECTED BY T HE LD. AO AT THE BACK OF THE ASSESSEE . 3. BRIEFLY STATED THE FACTS GIVEN RISE TO THE PRESE NT APPEAL ARE THAT, THE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREINA FTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 08/12/2010. DURING THE ASSE SSMENT PROCEEDINGS, THE AO OBSERVED THAT THE ASSESSEE HAD CLAIMED BROKERAGE EX PENSES AMOUNTING TO RS. 17,64,638/- WHICH INCLUDED PAYMENT OF RS. 16 LAKHS TO A SINGLE PARTY NAMELY M/S D.T.Z. THIS BROKERAGE WAS CLAIMED TO HAVE BEEN PAI D AGAINST PURCHASE OF LAND. THE AO OBSERVED THAT IN SUPPORT OF THIS EXPENDITURE THE ASSESSEE FAILED TO FURNISH THE SUPPORTING EVIDENCE. HENCE, HE DISALLOWED THE S AME. FURTHER THE AO TREATED THE RENTAL INCOME DECLARED AS INCOME FROM HOUSE PR OPERTY TREATED THE SAME AS BUSINESS RECEIPTS. 4. AGGRIEVED BY THIS, THE ASSESSEE PREFERRED AN AP PEAL BEFORE LD. CIT(A). LD. CIT(A) CONFIRMED THE ADDITION OF RS. 16 LAKHS BEING EXPENSES CLAIMED AS BROKERAGE PAID TO M/S DTZ INTERNATIONAL PROPERTY ADVISORS PVT . LTD. HOWEVER, THE LD. CIT(A) DIRECTED THE AO TO ASSESSED RENTAL INCOME AS INCOM E FROM HOUSE PROPERTY. THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL AGAINST T HE SUSTAINING OF DISALLOWANCE OF RS. 16 LAKHS. 5. APROPOS TO ADDITIONAL GROUND, LD. CONSEL FOR THE ASSESSEE SUBMITTED THAT INVOICE DATED 21/2/2007 WAS COLLECTED AT THE BACK O F THE ASSESSEE AND THE ASSESSEE 3 ITA NO. 458/JP/2012 M/S ARIHANT ENTERPRISES, JAIPUR. WAS NOT GIVEN OPPORTUNITY TO REBUT THE SAME. HE FU RTHER SUBMITTED THAT THE INVOICE SO RAISED PERTAIN TO EARLIER YEARS. THEREFORE, CAN NOT BE ADDED IN THE INCOME RELATED TO THIS YEAR. 5.1 ON THE CONTRARY, LD. DEPARTMENTAL REPRESENTATI VES SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 5.2 WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDER OF THE AUTHORITIES BELOW . THE ONLY ISSUE TO BE EXAMINED WHETHER THE AUTHORITIES BELOW WERE JUSTIFIED IN DIS ALLOWING THE EXPENDITURE OF RS.16 LAKHS CLAIM TO BE THE BROKERAGE PAID TO THE M/S DTZ INTERNATIONAL PROPERTY ADVISORS PVT. LTD. THE LD. COUNSEL FOR THE ASSESSEE HAS BRO UGHT TO OUR NOTICE THAT INVOICE DATED 21/02/2007 WHEREBY IT IS STATED THAT PROFESSI ONAL FEES CHARGED TOWARDS SPACE ACQUIRED BY ICFAI INSTITUTE AT CHOURDIA ENCLAVE, JA NPATH, SHAYAM NAGAR, JAIPUR, FROM THIS INVOICE IT IS CLEAR THAT THIS WAS RAISED FOR A SPECIFIC SERVICE. HOWEVER, IT IS NOT COMING OUT WHETHER SUCH SERVICE WAS RELATED TO THE ASSESSMENT YEAR UNDER APPEAL. ADMITTEDLY, THE DATE OF INVOICE IS 21/2/20 07. IT IS ALSO NOTICED THAT THE BILL RAISED BY M/S DTZ INTERNATIONAL PROPERTY ADVISORS P VT. LTD. PERTAINED TO FY 2006-07 RELEVANT TO AY 2007-08 AND IT HAS BEEN ONLY PAID IN FY 2007-08 RELEVANT TO AY 2008- 09. THESE FACTS REQUIRE VERIFICATION AT THE END OF THE AO FOR GIVING A DEFINITE FINDING WHETHER THE SERVICES AS CLAIMED IN THE INVOICE DATE D 21/02/2007 RELATED TO YEAR UNDER APPEAL. FURTHER, WE FIND THE ASSESSEE HAS AL SO ENCLOSED THE CONFIRMATION DATED 1/4/2008 WHEREIN IT IS CONFIRMED AGAINST THIS INVOICE WHEREIN DEBIT ENTRY PAYMENT OF RS. 14,18,720/- IS MADE AFTER DEDUCTING T.D.S. @ 11.33%, SIMILAR CONFIRMATION DATED 10/12/2014 IS ALSO PLACED ON REC ORD. THEREFORE, THE ORDER OF THE LD. CIT(A) IS SET ASIDE THE ISSUE IS RESTORE TO THE FILE OF THE AO FOR DECISION AFRESH. 4 ITA NO. 458/JP/2012 M/S ARIHANT ENTERPRISES, JAIPUR. THE AO IS DIRECTED TO VERIFY THE CLAIM OF ASSESSEE WITH REGARD TO THE INVOICE DATED 21/2/2007 AND ALSO VERIFY WHETHER THE ASSESSEE HAS MADE PAYMENT TO THAT PARTY OR NOT. 5.3 IN THE LIGHT OF THE ABOVE, THE AO DECIDED THIS ISSUE AFRESH, BOTH THE GROUNDS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE S. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON WEDNESDAY, THE 14TH DAY OF JUNE 2017. SD/- SD/- FOE FLAG ;KNO ( DQY HKKJR ) (VIKRAM SINGH YADAV) ( KUL BHART ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 14/06/2017. POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- M/S ARIHANT ENTERPRISES, JAIPUR. 2. THE RESPONDENT- THE DCIT, CIRLCE-6, JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 458/JP/2012) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 5 ITA NO. 458/JP/2012 M/S ARIHANT ENTERPRISES, JAIPUR.