ACTIS TECHNOLOGIES P. LTD, MUMBAI V. ACIT 24(2), MUMBAI

ITA 5357/MUM/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56029 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 02-11-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 22-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS USHA NAIR
• Assessee Lawyers: RAYA B SINGH
• Keywords: Corroborative evidences

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A , MUMBAI BEFORE SHIRI D.K. AGARWAL, JM AND SHRI RAJENDRA SIN G, AM ITA NO. : 5357/MUM/2009 ASSESSMENT YEAR : 2006-07 M/S. ACTIS TECHNOLOGIES PVT. LTD. C/O. R.K. KHANNA & ASSOCIATES, 402, REGENT CHAMBERS, NARIMAN POINT, MUMBAI-400 021. PAN NO: AACCA 8778 N VS. THE ACIT. - 8(1) AAYAKAR BHAVAN, MUMBAI-400 020 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAYA B. SINGH RESPONDENT BY : MRS. USHA NAIR DATE OF HEARING : 02.11.2011 DATE OF PRONOUNCEMENT : 18.11.2011 ORDER PER RAJENDRA SINGH (AM) : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 09.07.2009 OF THE LD. CIT(A)-VIII FOR THE ASSESSMEN T YEAR 2006-07. THE ONLY DISPUTE RAISED IN THIS APPEAL IS REGARDING DIS ALLOWANCE OF COMMISSION OF `. 75,09,039/-. 2. THE AO DURING THE ASSESSMENT PROCEEDINGS ASKED T HE ASSESSEE TO FURNISH THE BASIS OF RATE OF COMMISSION AND TO CO-R ELATE THE COMMISSION WITH THE CORRESPONDING SALES. THE ASSESSEE SUBMITTE D THAT THE ITA NO : 5357/MUM/2009 M/S.A CTIS TECHNOLOGIES PVT. LTD. 2 COMMISSION HAD BEEN PAID TO REGULAR DEALERS AT VARY ING RATES AND COMMISSION WAS ALSO PAID ON MAJOR PROJECTS AS PERCE NTAGE OF THE VALUE OF THE PROJECT. THE AO, HOWEVER, OBSERVED THAT THE ASSESSEE COULD NOT CO-RELATE THE COMMISSION WITH THE SALES AND, THEREF ORE, HAD NOT DISCHARGED THE ONUS PLACED UPON IT FOR PROVING COMM ISSION AND ACCORDINGLY, HE DISALLOWED THE CLAIM. 3. IN APPEAL, THE LD. CIT(A) OBSERVED THAT, BEFORE HIM ALSO, THE ASSESSEE COULD NOT PRODUCE THE SUPPORTING EVIDENCE AND MATERIAL TO CO- RELATE THE COMMISSION TO THE SALES. THE ASSESSEE ON LY CLAIMED THAT COMMISSION HAD BEEN ALLOWED IN THE EARLIER YEARS. T HE ASSESSMENT FOR THE EARLIER YEARS HAD BEEN COMPLETED UNDER SUMMARY SCHEME. HE, THEREFORE, CONFIRMED THE DISALLOWANCE AGGRIEVED BY WHICH THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. BEFORE US, THE LD. AR FOR THE ASSESSEE REITERATE D THE SUBMISSIONS AS MADE BEFORE THE LD. CIT(A) THAT COMMISSION HAD B EEN ALLOWED IN THE EARLIER YEARS AND ALSO IN THE SUBSEQUENT YEARS. IT WAS ALSO SUBMITTED THAT SALES DURING THE YEAR HAD INCREASED BY 50% AND , THEREFORE, CLAIM SHOULD NOT BE DISALLOWED. THE LD. AR FURTHER POINTE D OUT THAT THE LD. CIT(A) WAS NOT CORRECT TO STATE THAT NO DETAILS HAD BEEN GIVEN. HE REFER TO ANNEXURE-B TO THE STATEMENT OF THE FACTS, IN WHICH COMPLETE DETAILS OF COMMISSION, PARTY-WISE CO-RELATING THE SAME WITH TH E CORRESPONDING SALES HAD BEEN GIVEN, WHICH WAS NOT EXAMINED. IT WA S, ACCORDINGLY, SUBMITTED THAT THE ORDER OF THE LD. CIT(A) SHOULD B E SET ASIDE. THE LD. DR ON THE OTHER HAND, SUPPORTED THE ORDERS OF THE A UTHORITIES BELOW AND PLACED RELIANCE ON THE FINDINGS GIVEN IN THEIR ORDE RS. 5. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE M ATTER CAREFULLY. THE DISPUTE IS REGARDING THE DISALLOWANCE OF COMMIS SION OF ITA NO : 5357/MUM/2009 M/S.A CTIS TECHNOLOGIES PVT. LTD. 3 `. 75,09,039/-. THE COMMISSION IS STATED TO HAVE BEEN PAID TO DEALERS AT VARYING RATES AND ALSO IN RESPECT OF NEW PROJECTS A S PERCENTAGE OF THE VALUE OF THE PROJECT. THE ASSESSEE BEFORE THE AO CO ULD NOT PRODUCE ANY EVIDENCE TO CO-RELATE THE COMMISSION TO THE CORRESP ONDING SALES. THE LD. CIT(A) HAS GIVEN THE FINDING THAT BEFORE HIM ALSO N O FURTHER MATERIAL AND EVIDENCE HAD BEEN PRODUCED. HOWEVER, IT APPEARS FRO M THE STATEMENT OF THE FACTS THAT ASSESSEE HAD GIVEN COMPLETE DETAILS GIVING THE NAME OF THE PARTY, NAME OF THE CLIENT AND SALES DETAILS, IN REL ATION TO WHICH COMMISSION HAD BEEN GIVEN. IT APPEARS THAT THESE DE TAILS HAVE NOT BEEN EXAMINED. IN OUR VIEW, IN ORDER TO ARRIVE AT A FAIR DECISION IN THE MATTER, IT IS NECESSARY THAT THE DETAILS GIVEN BY THE ASSES SEE ALONG WITH THE STATEMENT OF THE FACTS SHOULD BE EXAMINED. WE, THER EFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO THE AO FOR PASSING AFRESH ORDER AFTER NECESSARY EXAMINATION AND AFTER GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THIS 18 TH DAY OF NOVEMBER, 2011. SD/ - - SD/ - - ( D.K. AGARWAL ) ( RAJENDRA SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT: 18.11.2011 ITA NO : 5357/MUM/2009 M/S.A CTIS TECHNOLOGIES PVT. LTD. 4 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, A - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI