Akshay Shakti, Bhopal V. Deputy Commissioner of Income Tax Central-1, Bhopal

ITA 643/Ind/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8700 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 05-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; TDS; Set aside
• Section: 69C

Judgement Text

AKSHAY SHAKTI SHIKSHA ITA 361 AND 643 OF 2017 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NOS361 & 643/IND/2017 A.YS. 2012-13 & 2013-14 AKSHAY SHAKTI SHIKSHA AVAM SAMAJ KALYAN SAMITI, BHOPAL PAN AAAAA 7213 N :: APPELLANT VS DCIT, CENTRAL-I, BHOPAL :: RESPONDENT ASSESSEE BY SHRI HITESH CHIMNANI, CA REVENUE BY SHRI R.S. AMBEDKER, SR. DR DATE OF HEARING 25.3.2019 DATE OF PRONOUNCEMENT 08.4.2019 O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER BOTH THESE APPEALS ARE FILED BY THE ASSESSEE AGAIN ST THE DIFFERENT ORDERS OF LD. CIT(A)-III, BHOPAL, DATED 06.3.2017 & 18.8.2017 CHALLENGING THE CONFIRMATIONS OF ADDITIONS OF RS.18,59,513/- & RS.9,05,000/- MADE BY THE ASSESSING OFFICER U/S 69C TREATING UNEXPLAINED EXPENSES FOR THE ASSESSMEN T YEARS 2012-13 & 2013-14, RESPECTIVELY. 2. FACTS, IN BRIEF, ARE THAT DURING THE YEARS UNDER CONSIDERATION, THE ASSESSEE HAS DEBITED RS.18,59,513/- & RS.9,05,000/- AS COMMI SSION TO VARIOUS PERSONS. THE ASSESSING OFFICER ASKED TO EXPLAIN THE SAME. THE AS SESSEE REPLIED THAT THE ASSESSEE AKSHAY SHAKTI SHIKSHA ITA 361 AND 643 OF 2017 2 HAD DEBITED EXPENSES ON ACCOUNT OF BUSINESS PROMOTI ON IN P & L ACCOUNT, OUT OF WHICH, THE ASSESSEE PAID THE AFORESAID AMOUNTS AGAI NST COMMISSION TO VARIOUS PERSONS THROUGH CASH VOUCHERS AND EVERY PERSON WAS PAID COMMISSION BELOW RS.2500/-, THEREFORE, TDS HAD NOT BEEN DEDUCTED. CO PIES OF LEDGER ACCOUNT OF COMMISSION AND OTHER MISCELLANEOUS EXPENSES WERE FI LED. THE ASSESSING OFFICER DID NOT AGREE WITH THE SUBMISSION AND MADE THE ADDITION S MAINLY ON THE GROUNDS THAT THE ASSESSEE HAS NOT SUBMITTED EVIDENCE OF PAYMENT OF COMMISSION AND THE ASSESSEE HAS ALSO DEBITED BOGUS EXPENSES ON ACCOUNT OF COMMISSION EXPENSES. BEING AGGRIEVED, THE ASSESSEE WENT IN APPEALS BEFOR E THE LD. CIT(A), WHO ALSO CONFIRMED THE ACTION OF THE ASSESSING OFFICER ON TH E GROUND THAT NEITHER THE ASSESSEE SATISFACTORILY EXPLAINED THE CLAIM NOR FIL ED THE REQUIRED RELEVANT EVIDENCE. STILL AGGRIEVED, THE ASSESSEE IS BEFORE T HIS TRIBUNAL. 3. AT THE OUTSET OF THE HEARING, LD. COUNSEL FOR TH E ASSESSEE CONTENDED THAT IN NONE OF THE CASES, THE ASSESSEE PAID COMMISSION EXC EEDING RS.2500/-AND IN SUPPORT OF SUCH PAYMENTS, COMPLETE BOOKS OF ACCOUNT , BILLS/VOUCHERS AND LEDGER ACCOUNT WERE PRODUCED, THEREFORE, THESE DOCUMENTARY EVIDENCES CLEARLY PROVE THAT NO BOGUS EXPENSES ON ACCOUNT OF COMMISSION EXP ENSES HAVE BEEN DEBITED. PERSONS WHO BRING STUDENTS FOR ADMISSION ARE INVARI ABLY PAID COMMISSION NOT EXCEEDING RS.2500/- AS A MATTER OF MANAGEMENTS IMP LIED POLICY PREVAILED AND THEIR RECEIPTS ARE INVARIABLY OBTAINED ON THE SPOT BY THE ASSESSEE. SMALL AMOUNT NOT EXCEEDING RS.2500/- IS PAID LEST IT WOULD HAVE RESULTED INTO MANIPULATIONS AT THE LEVEL OF STAFF ENTRUSTED WHICH IN TURN WOULD HA VE SPOILED THE REPUTATION OF THE ASSESSEE INSTITUTION. THEREFORE, THE COMMISSION PER STUDENT TO THE PERSONS WHO CANVAS AND BRING THE PROSPECTIVE STUDENT FOR ADMISS ION WAS FIXED NOT EXCEEDING RS.2500/- IN EACH CASE AND FOR SMALL AMOUNT OF RS.2 500/-, INSISTENCE OF PRODUCTION AKSHAY SHAKTI SHIKSHA ITA 361 AND 643 OF 2017 3 OF POSTAL ADDRESS, PAN, ITRS, BANK STATEMENTS AND C ONFIRMATIONS OF SUCH PERSONS AT THE TIME OF PROCESSING THE ADMISSION FORMALITIES WA S IMPRACTICABLE FOR THE ASSESSEE FOR THE REASON THAT IF THESE DOCUMENTS WOULD BE INS ISTED TO BE FURNISHED, THE ASSESSEE INSTITUTION WOULD HAVE LOST A VERY SIZABLE NO. OF STUDENTS AND THAT RISK COULD NOT BE TAKEN OR AFFORDED TO IN BUSINESS EXPED IENCY. THE REVENUE AUTHORITIES DID NOT APPRECIATE THE FACTS IN PROPER MANNER, WHIC H IS UNJUSTIFIED. ON THE OTHER HAND, LD. SR. DR RELIED ON THE ORDERS OF THE REVENU E AUTHORITIES. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE O RDERS OF LOWER AUTHORITIES. BEFORE US, THE ASSESSEE HAS STATING CIRCUMSTANCES C ONTENDED THAT DUE TO BUSINESS EXPEDIENCY, SUCH PERSONS ARE INVARIABLY PAID COMMIS SION NOT EXCEEDING RS.2500/- AS A MATTER OF MANAGEMENTS IMPLIED POLICY PREVAILE D AND THEIR RECEIPTS ARE INVARIABLY OBTAINED ON THE SPOT BY THE ASSESSEE AND FOR THE SMALL AMOUNT OF RS.2500/-, INSISTENCE OF PRODUCTION OF POSTAL ADDRE SS, PAN, ITRS, BANK STATEMENTS AND CONFIRMATIONS OF SUCH PERSONS AT THE TIME OF PR OCESSING THE ADMISSION FORMALITIES WAS IMPRACTICABLE FOR THE ASSESSEE. ON QUERY MADE BY US, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT NOW, THE AS SESSEE CAN SUBMIT ALL POSSIBLE EVIDENCES LIKE CONFIRMATIONS IN SUPPORT OF THE CLAI M. WE ARE OF THE VIEW THAT THE ASSESSEE HAS EXPLAINED CIRCUMSTANCES FOR NON-FURNIS HING OF THE SAME BEFORE THE ASSESSING OFFICER. LOOKING TO THE CIRCUMSTANCES AND IN THE INTEREST OF JUSTICE, WE ARE OF THE VIEW THAT THE ASSESSEES MATTER REQUIERS RECONSIDERATION AT THE LEVEL OF THE ASSESSING OFFICER AFRESH. ACCORDINGLY, THE ORDE RS OF THE REVENUE AUTHORITIES ARE SET ASIDE AND THE MATTER IS RESTORED BACK TO THE FI LE OF THE ASSESSING OFFICER WHO WILL RECONSIDER THE RELEVANT DOCUMENTS/SUBMISSIONS IN THE LIGHT OF THE AFORESAID SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE . ASSESSEE WOULD APPEAR WITHOUT WAITING BEFORE THE ASSESSING OFFICER FOR FU RTHER NECESSARY ACTION. NEEDLESS AKSHAY SHAKTI SHIKSHA ITA 361 AND 643 OF 2017 4 TO MENTION HERE THAT ADEQUATE OPPORTUNITY OF BEING HEARD SHALL BE PROVIDED TO THE ASSESSEE AND THE ASSESSEE IS ALSO DIRECTED TO FURNI SH THE EVIDENCES/SUBMISSION, IF ANY, IN SUPPORT OF THE CLAIM AND COOPERATE BEFORE T HE ASSESSING OFFICER IN THIS REGARD. THUS, THE GROUNDS RAISED IN THE APPEALS FIL ED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. 5. FINALLY, BOTH THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 08.4.2019 . SD/- (MANISH BORAD) ACCOUNTANT MEMBER SD/- ( KUL BHARAT) JUDICIAL MEMBER DATED : 08.4.2019 ! VYAS ! COPY TO: ASSESSEE/RESPONDENT/CIT(A)/CIT/DR, INDORE