DHARMEN DOSHI, MUMBAI V. ITO 19(2)(1), MUMBAI

ITA 6326/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1907 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 23-11-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 13-10-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Business income; Corroborative evidences
• Section: 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH H ,MUMBAI BEFORE SHRI B.R.BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.6326/MUM/2014 FOR (ASSESSMENT YEAR : 2010-11 ) SHRI DHARMEN DOSHI HARI NIWAS, 3 RD GOLIBAR ROAD, SANTACURZ (E), MUMBAI-400055. PAN: AAAPD8086C VS. ITO-19(2)(1), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE REVENUE BY : SHRI M.C. OMI NINGSHEN (DR) DATE OF HEARING : 23.11.2016 DATE OF PRONOUNCEMENT : 25.11.2016 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JM: 1. THIS APPEAL U/S 253 OF THE INCOME-TAX ACT (ACT) I S DIRECTED BY ASSESSEE AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS) [ FOR SHORT THE CIT(A)] -13 MUMBAI DATED 14.07.2014 FOR ASSESSMENT YEAR (AY) 20 10-11. THE ONLY SUBSTANTIAL GROUND OF APPEAL RAISED BY THE ASSESSEE IS WHETHER THE LD. CIT(A) ERRED IN TREATING COMMISSION INCOME OF RS. 7,50,000/- AS IN COME FROM OTHER SOURCES INSTEAD OF BUSINESS INCOME. 2. BRIEF FACTS OF THE CASE RELATED WITH THE GROUNDS OF APPEAL AS GATHERED FROM THE RECORD OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF I NCOME FOR RELEVANT AY ON 27.09.2010 DECLARING TOTAL INCOME OF RS. 11,77,670/ -. THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT ON 25.03.2013. IN T HE ASSESSMENT, THE ASSESSING OFFICER (AO) BESIDES THE OTHER ADDITION AND DISALLO WANCE TREATED THE COMMISSION INCOME OF RS. 7,50,000/- AS INCOME FROM OTHER SOUR CES INSTEAD INCOME FROM BUSINESS & PROFESSION. ON APPEAL THE ASSESSEE NO RELIEF WAS GRANTED. THUS, FURTHER AGGRIEVED THE PRESENT APPEAL IS FILED BEFORE US. 2 ITA NO. 6326/M/2014 SHRI DHARMEN DOSHI 3. NONE APPEARED ON BEHALF OF ASSESSEE WHEN THE CASE C AME UP FOR HEARING ON 23.11.2006 DESPITE WAITING FOR SUFFICIENT TIME. TH E PERUSAL OF RECORD REVEALS THAT ASSESSEE WAS SERVED THE NOTICE OF APPEAL FOR 05.05 .16 AND AGAIN FOR 23.11.2016. NEITHER THE ASSESSEE NOR HIS REPRESENTATIVE APPEARE D TO SUBSTANTIATE THE GROUNDS OF APPEAL RAISED BEFORE US. WE LEFT NO OPTION EXCEPT T O PROCEED FURTHER AND TO HEAR THE SUBMISSION OF THE LD. DR FOR REVENUE. THE LD. DR FO R REVENUE ARGUED THAT IN THE RETURN OF INCOME, THE ASSESSEE HAS SHOWN INCOME OF RS. 7,50,000/- ON ACCOUNT OF COMMISSION RECEIPT FOR RENDERING SERVICES OF SELLIN G OF CHEMICALS FROM M/S AMRIT CHEM. THE ASSESSEE WAS ASKED TO EXPLAIN AND SHOWN T HE DOCUMENTARY EVIDENCE WITH REGARD TO THE APPOINTMENT AS A COMMISSION AGENT OF M/S AMRIT CHEM. A NOTICE U/S 133(6) WAS ALSO SENT TO M/S AMRIT CHEM IN RESPONSE TO THE NOTICE, A REPLY WAS RECEIVED FROM BPL ASSOCIATES, COMPANY-SECRETARYS F IRM ON 13.12.2012 CONTENDING THEREIN THAT ASSESSEE IS DEALING AS COMM ISSION AGENT OF M/S AMRIT CHEM. THE ASSESSEE WAS ASKED TO FILE SUPPORTING EVI DENCE. AS NO SUPPORTING EVIDENCE WAS FILED, THE AO TREATED THE COMMISSION I NCOME AS INCOME FROM OTHER SOURCES INSTEAD OF INCOME FROM BUSINESS & PROFESS ION. THE LD DR FOR REVENUE WOULD ARGUE THAT THE APPEAL FILED BY THE ASSESSEE I S LIABLE TO BE DISMISSED. 4. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE HAVE NOTICED THAT THE ASSE SSEE HAS NOT FILED ANY DOCUMENTARY EVIDENCE BEFORE THE AO TO SUBSTANTIATE HIS CLAIM THAT HE RECEIVED THE AMOUNT OF RS. 7,50,000/- AS A COMMISSION INCOME. A S NO DOCUMENTARY EVIDENCE WAS FILED BEFORE THE AO. THUS, THE AO TREATED THE I NCOME FROM AS INCOME FROM OTHER SOURCES. DURING THE FIRST APPELLATE STAGE, T HE ASSESSEE MADE THE SIMILAR CONTENTION WITHOUT FILING ANY DOCUMENTARY EVIDENCE. THE ASSESSEE ALSO CONTENDED THAT IN THE PAST AYS, THE COMMISSION INCOME HAS BEE N TREATED AS BUSINESS INCOME AND THE AO HAS NO REASON TO CHANGE THE HEAD OF INCO ME FROM SAID RECEIPT. THE LD. CIT(A) OBSERVED THAT THE ASSESSEE HAS NO OFFICE PRE MISES FOR CARRYING OUT THE ACTIVITY OF A COMMISSION AGENT NOR ANY DETAILS OF C OMMISSION AGENT HAS BEEN FURNISHED. THUS, THE LD. CIT (A) UPHOLDS THE FINDIN G OF AO. 5. WE HAVE GIVEN CAREFUL CONSIDERATION TO THE ORDERS O F AUTHORITIES BELOW. DURING THE ASSESSMENT PRECEDING NO DOCUMENTARY EVIDENCE WAS FI LED TO SUBSTANTIATE HIS CLAIM THUS THE AO TREATED THE COMMISSION INCOME UNDER THE HEAD INCOME FROM OTHER 3 ITA NO. 6326/M/2014 SHRI DHARMEN DOSHI SOURCES. THE LD CIT (A) ALSO EXAMINED THE CASE OF ASSESSEE FROM DIFFERENT ANGLES AND CONCLUDED THAT THE ASSESSEE HAS NO OFFICE PREMI SES TO DEAL IN SUCH ACTIVITY NOR THE ASSESSEE CLAIMED ANY EXPENSES. EVEN BEFORE US, THE ASSESSEE HAS NOT FILED EVEN SINGLE DOCUMENTARY EVIDENCE TO SUBSTANTIATE HIS CLA IM NOR COME FORWARD TO MAKE THE SUBMISSION BEFORE US. HENCE, WE DO NOT HAVE ANY REA SON TO DEVIATE FROM THE CONCURRENT FINDING OF AUTHORITIES BELOW. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25 TH NOVEMBER, 2016. SD/- SD/- (B.R.BASKARAN) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 25/11/2016 S.K.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/