ITO, Mohali V. M/s Balkartar Enterprises, Mohali

ITA 508/CHANDI/2013

• Counselvise Citation: 50821514 RSA 2013
• Duration Of Justice: 2 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 01-10-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 06-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS.ANNAPURNA MEHROTRA, ACCOUNTANT MEMBER ITA NO. 508/CHD/2013 ASSESSMENT YEAR: 2008-09 THE ITO, VS M/S BALKARTAR ENTERPRISES, WARD 6(2), SCO 88, MOHALI. PHASE 7, MOHALI. PAN: AAGFB8677G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANJIT SINGH RESPONDENT BY : NONE DATE OF HEARING : 01.10.2015 DATE OF PRONOUNCEMENT : 09.10.2015 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY REVENUE IS DIRECTED AGAINST THE ORDE R OF LD. CIT(APPEALS) CHANDIGARH DATED 01.02.2013 FOR ASSESSMENT YEAR 2008-09 IN WHICH THE REVENUE CHALLE NGED THE DELETION OF ADDITION OF RS. 17,34,055/-. 2. WE HAVE LD. DR AND PERUSED THE FINDINGS OF AUTHORITIES BELOW. HOWEVER, NONE APPEARED ON BEHAL F OF THE ASSESSEE DESPITE SERVICE OF THE NOTICE THROUGH THE DEPARTMENT. THE SERVICE REPORT IS AVAILABLE ON REC ORD. 3. BRIEF FACTS OF THE ISSUE ARE THAT ASSESSEE HAD R EPORTED COMMISSION OF RS. 5,60,068/- FROM M/S AERO CLUB. T HE ASSESSING OFFICER MADE VERIFICATION FROM M/S AERO C LUB AND FOUND THAT IT HAD PAID COMMISSION OF RS. 22,94,123/ - ON 2 SALES. THE ASSESSING OFFICER QUESTIONED THE ASSESSE E ABOUT THE DIFFERENCE AND THE ASSESSEE HAD EXPLAINED THAT THE COMMISSION REPORTED BY M/S AERO CLUB AS PER TDS CERTIFICATES AND AS PER BALANCE SHEET OF THE ASSESS EE FOR LAST THREE YEARS WAS AS UNDER : FINANCIAL FROM M/S AERO CLUB NEW COM MISSION RECEIVED AS PER YEAR DELHI AS PER TDAS CERTIFICATES BALANCE SHEET OF THE FIRM (AMOUNT IN RS.) (AMOUNT IN RS.) 2005-06 12,73,655/- 17,24,697/- 2006-07 16,23,830/- 21,35,003/- 2007-08 22,94,123/- 5,60,068/- 4. THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE AND CONCLUDED THAT ASSE SSEE HAD NOT OFFERED IT INCOME FOR ASSESSMENT, BUT HAD C LAIMED CREDIT FOR TDS IN THE RETURN OF INCOME AND SO THE PROVISIONS OF SECTION 199 OF THE INCOME TAX ACT WER E ATTRACTED. HE, THEREFORE, MADE ADDITION OF RS. 17, 34,055/- (RS. 22,94,1235,60,068/-). 5. THE ASSESSEE CHALLENGED ADDITION BEFORE LD. CIT(APPEALS) AND SAME SUBMISSIONS WERE REITERATED A ND IT WAS SUBMITTED THAT COMMISSION WAS TAKEN INTO ACCOUN T ON RECEIPT BASIS AND TDS WAS CLAIMED ON THE BASIS OF F ORM NO. 16A. THE LD. CIT(APPEALS), CONSIDERING EXPLANATION OF THE ASSESSEE, DELETED THE ADDITION. HIS FINDINGS IN PA RA 4.3 OF THE APPELLATE ORDER ARE REPRODUCED AS UNDER : 4.3 1 HAVE CONSIDERED THE SUBMISSION OF THE LD. C OUNSEL. THE APPELLANT HAD BEEN DECLARING COMMISSION INCOME ON RECEIPT BAS IS AND HAD CLAIMED 3 TDS AS PER FORM NO. 16A IRRESPECTIVE OF THE TDS AS CREDITED OR PAID AS PER FORM NO. 16A. THE TOTAL AMOUNT OF COMMISSION RECE IVED AND ACCRUED AS PER FORM NO. 16A WAS ACCOUNTED FOR BY THE APPELLANT IN THE PROFIT AND LOSS ACCOUNT IN THE PRECEDING FINANCIAL YEARS. ACCORDI NG TO THE APPELLANT, THE AGREEMENT WITH M/S AERO CLUB WAS TERMINATED ON 30.10.2007 AND ACCOUNTS BETWEEN BOTH THE PARTIES WERE SETTLED AND IN F.Y. 2007-08, PERTAINING TO THIS ASSESSMENT YEAR, THE COMPANY AT THE TIME OF FINALIZING ITS ACCOUNTS HAD DEDUCTED TAX ON THE TOTAL COMMISSION C REDITED MINUS THE AMOUNT FOR WHICH FORM NO. 16A HAD BEEN ISSUED TO THE APPEL LANT. THE FACTS OF THE CASE AS EXPLAINED IN THE APPELLATE PROCEEDINGS WERE CONV EYED BY THE APPELLANT TO THE ASSESSING OFFICER ALSO, WHICH HAVE BEEN REPRODU CED BY THE ASSESSING OFFICER IN PARA 5.1 OF THE ASSESSMENT ORDER AND SO ARE TAKEN TO BE CORRECT. AS THE INCOME HAD ALREADY BEEN ASSESSED IN THE EARLIER YEARS, THE SAME CANNOT BE ASSESSED AGAIN IN THE CURRENT YEAR. HENCE, THE A SSESSING OFFICER WAS NOT RIGHT IN MAKING THE IMPUGNED ADDITION OF RS. 17,34, 055/- AND THE SAME IS DELETED. GROUND OF APPEAL NO. 3(B) IS ALLOWED. 6. AFTER CONSIDERING SUBMISSIONS OF THE LD. DR, WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. THE ASSESSEE CLAIMED THAT COMMISSION INCOME WAS SHO WN ON RECEIPT BASIS AND IN EARLIER YEARS, ASSESSEE HAS SHOWN MORE COMMISSION IN THE BALANCE SHEET AS AGAINST THE AMOUNT SHOWN BY M/S AERO CLUB, NEW DELHI AS PER TDS CERTIFICATE. THE ASSESSEE ALSO EXPLAINED SAME FACT S WERE EXPLAINED TO THE ASSESSING OFFICER AND DETAILS ARE NOTED IN PARA 5.1 OF THE ASSESSMENT ORDER WHICH CLARIFY THA T TOTAL AMOUNT RECEIVED FROM M/S AERO CLUB IN THREE YEARS W AS SAME AS HAVE BEEN DECLARED BY ASSESSEE FOR TAXATION IN ALL THE THREE YEARS. THE LD. CIT(APPEALS) WAS, THEREFO RE, JUSTIFIED IN HOLDING THAT AS THE INCOME HAD ALREADY BEEN ASSESSED IN EARLIER YEARS, THE SAME CANNOT BE ASSE SSED AGAIN IN THE CURRENT YEAR. FURTHER, WHEN IN EARLIE R YEARS, ASSESSING OFFICER HAS ACCEPTED THE RETURNED INCOME ON 4 RECEIPT BASIS, ASSESSING OFFICER IS NOT JUSTIFIED I N MAKING THE SIMILAR ADDITION IN ASSESSMENT YEAR UNDER APPEA L. THE DEPARTMENTAL APPEAL HAS NO MERIT, THE SAME IS ACCOR DINGLY DISMISSED. 6. IN THE RESULT, DEPARTMENTAL APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (ANNAPURNA MEHROTRA) (BHAVNESH SAI NI) ACCOUNTANT MEMBER JUDICIAL MEMB ER DATED: 9 TH OCT., 2015. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR ITAT/CHD