ACIT, New Delhi V. Sh. Pawan Kumar Jain, New Delhi

ITA 5486/DEL/2015

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1631 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 10-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS
• Section: 195; 9(1); 9(1); 9(1); 40a(ia)

Judgement Text

ITA NO.- 5486/DEL/2015. PAWAN KUMAR JAIN. PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: B: NEW DELHI) (THROUGH VIDEO CONFERENCING) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 5486/DEL/2015 ( ASSESSMENT YEAR: 2010-11) ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE- 34(1), NEW DELHI. VS. SH. PAWAN KUMAR JAIN, BM-173, WEST SHALIMAR BAGH, DELHI-110088. APPELLANT RESPONDENT PAN NO: AAOPJ7853N REVENUE BY : SHRI AVIKAL MANU, SR. DR ASSESSEE BY : SHRI TARUN KUMAR, ADV. PER ANADEE NATH MISSHRA, AM (A) THIS APPEAL BY REVENUE IS FILED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-12, NEW DELHI, [LD. CIT(A), FOR SHORT], DATED 15/06/2015 FOR ASSESSMENT YEAR 2010-11. GROUNDS TAKEN IN THIS APP EAL OF REVENUE ARE AS UNDER: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, AND IN LAW, THE LD. CIT(A) ERRED IN NOT APPRECIATING THE FACTS OF THE CASE PROPERLY. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION O F RS. 5,51,09,413/- ON ACCOUNT OF COMMISSIONER IGNORING FACTS THAT THE ASS ESSEE FAILED TO PROVE THE JUSTIFICATION OF PAYMENT OF COMMISSION AS HE PAID N O COMMISSION IN THE PRECEDING YEAR AND THERE WAS NOT ENHANCEMENT IN THE TURNOVER OF THE ASSESSEE. ITA NO.- 5486/DEL/2015. PAWAN KUMAR JAIN. PAGE 2 OF 4 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS . 5,51,09,413/- MADE ON ACCOUNT OF COMMISSION IGNORING THE FACT THAT THE RA TE OF COMMISSION @ 10% WAS MUCH HIGHER IN COMPARISON TO GROSS PROFIT OF RS . 26,01,235/- (0.4% OF SALES). 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LD. CIT(A) ERRED IN APPRECIATING THE FACTS OF T HE CASE THAT THE ASSESSEE PAID COMMISSION FOR EXTRANEOUS REASONS AS HE WAS AL SO CARRYING OUT THE BUSINESS OF EQUAL TURNOVER IN THE PRECEDING YEARS W ITHOUT ANY PAYMENT OF COMMISSION. 5. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LD. CIT(A) ERRED IN NOT APPRECIATING THE PROVIS IONS OF EXPLANATION 2 TO SECTION 9(1) (VII)( WHICH WERE APPLICATION ON THE A SSESSEE AS THE COMMISSION AGENTS WERE ALSO PROVIDING MANAGERIAL SERVICES TO T HE ASSESSEE AS PER MOU. 6. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT THE PROVISION OF DEDUCTION OF TDS U/S 195 R.W.S 40A(IA) WOULD NOT APPLY TO THE FACTS OF T HE CASE. 7. WHETHER ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LD. CIT(A) ERRED IN NOT APPRECIATING THE PROVISIONS OF EXPLANATION 2 TO SECTION 9(2) AND EXPLANATION 2 TO SECTION 195 IN HO LDING ITS NON-APPLICABILITY TO NON-RESIDENT AGENT. (B) AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE IN FORMED US THAT THE ASSESSEE HAS FILED A DECLARATION UNDER VIVAD SE VISHWAS SCHEME ( VSVS, FOR SHORT) FOR THE SETTLEMENT OF SUBJECT MATTER OF THE DISPUTES IN THIS APPEAL AN D FILED A DECLARATION IN FORM- 1. A COPY OF DECLARATION FILED BY ASSESSEE IN FORM-1 HAS ALSO BEEN FILED FROM ASSESSEES SIDE IN INCOME TAX APPELLATE TRIBUNAL (ITAT, FOR SHORT). THE LD. COUNSEL FOR THE ASSESSEE ALSO INFORMED IN ORAL SUBMISSIONS AT THE TIME OF HEARING , THAT THE AFORESAID DECLARATION FILED BY ASSESSEE HAS BEEN ACCEPTED BY REVENUE; AND THAT ACC ORDINGLY FORM-3 HAS BEEN ISSUED. HOWEVER, COPY OF FORM-3 REMAINED TO BE FILED BY THE ASSESSEE IN ITAT. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSEL FOR ASSESSEE SUB MITTED BEFORE US THAT THIS APPEAL MAY BE DISMISSED ON ACCOUNT OF THE AFORESAID VSVS. THE LEARNED SENIOR DEPARTMENTAL ITA NO.- 5486/DEL/2015. PAWAN KUMAR JAIN. PAGE 3 OF 4 REPRESENTATIVE (LD. SR. DR, FOR SHORT) DID NOT EX PRESS ANY OBJECTION TO THIS. HOWEVER HE HAD NO INTIMATION THAT REVENUE HAS ALREADY ISSUED F ORM-3 AND HAD SETTLED THE DISPUTES COVERED IN THIS APPEAL. AFTER DUE CONSIDERATION, A ND IN VIEW OF THE FOREGOING; WE TREAT THIS APPEAL AS WITHDRAWN BY REVENUE ON ACCOUNT OF T HE AFORESAID VSVS, SUBJECT TO SETTLEMENT OF THE DISPUTES IN THE APPEAL, UNDER THE AFORESAID VSVS. ACCORDINGLY, THE APPEAL IS DISMISSED BEING TREATED AS WITHDRAWN. (B.1) BEFORE WE PART, WE HEREBY CLARIFY, BY WAY OF ABUNDA NT CAUTION, THAT IF FOR SOME REASON IT IS FOUND BY REVENUE THAT THE DISPUTE S UNDER THIS APPEAL BEFORE US ARE NOT FULLY SETTLED UNDER THE AFORESAID VSVS, THEN REVENUE WILL BE AT LIBERTY TO APPROACH ITAT FOR RESTORATION OF THIS AP PEAL, IN ACCORDANCE WITH LAW. (B.2) WITH THESE DIRECTIONS, THE AFORESAID APPEAL OF REV ENUE IS DISMISSED, BEING TREATED AS WITHDRAWN. (C) FOR STATISTICAL PURPOSES, THIS APPEAL IS DISMISSED. THIS ORDER WAS ALREADY PRONOUNCED ON 9 TH DECEMBER, 2020 IN OPEN COURT, IN THE PRESENCE OF REPRESENTATIVES OF BOTH SIDES; AFTER CO NCLUSION OF THE HEARING. SD/- SD/- (H.S. SIDHU) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED: 09/12/2020 POOJA/- ITA NO.- 5486/DEL/2015. PAWAN KUMAR JAIN. PAGE 4 OF 4 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 9 /12/20 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 9 /12/20 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 9 /12/20 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 9 /12/20 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 9 /12/20 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 9 /12/20 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER