SUNIL BAHL, MUMBAI V. ITO 26(2)(4), MUMBAI

ITA 6715/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0894 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 16-11-2016
• Court: TRIBUNAL
• Department Lawyers: BEENA SANTOSH
• Assessee Lawyers: HARSHAD AJMERA
• Keywords: Source of fund

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM ITA NO. 6 7 15 / MUM/20 1 6 ( ASSESSMENT YEAR : 2011 - 12 ) MR. SUNIL BAHL 603, GREEN MEDOW BUILDING, A - 1, AKRULI ROAD, LOKHANDWALA, KANDIVALI (E) MUMBAI 400 101 VS. ITO 26(2 )(4), MUMBAI - 400 002 PAN/GIR NO. AAHPB9377L APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI HARSHAD AJMERA REVENUE BY MS. BEENA SANTOSH DATE OF HEARING 26 / 04 /201 7 DATE OF PRONOUNCEME NT 26 / 04 /201 7 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 46, MUMBAI DATED 31/08/2016 FOR THE A.Y. 2011 - 1 2 IN THE MATTER OF ORDER PASSED U/S.143(3) OF THE IT ACT. 2. THE ONLY GRIEVANCE OF ASSESSEE RELAT ES TO ADDITION MADE ON ACCOUNT OF DIFFERENCE BETWEEN COMMISSION RECEIPTS AS PER 26AS AND ALSO ON ACCOUNT OF DEPOSIT IN THE BANK ACCOUNT. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. 4. FACTS IN BRIEF ARE THAT ASSESSEE WAS WORKING AS A FULL TIM E E MP LOYEE AT ROLTA INDIA LTD ON SALARIED BASIS. IN ORDER TO EARN EXTRA INCOME I N F.Y. 2010 - 11 PROVIDED ADVISORY SERVICES FOR ICICI PRUDENTIAL LIFE I NSURANCE CO. LTD AND EARNED COMMISSION OF RS . 12,35,243.78. DURING THE COURSE OF IT A NO. 6715/MUM/2016 MR. SUNIL BAHL 2 ASSESSMENT AO FOUND THAT AS SESSEE HAS NOT DISCLOSED COMMISSION INCOME IN TERMS OF FORM 26 AS, ACCORDINGLY ASSESSEE WAS ASKED TO FILE THE DETAILS. IT WAS EXPLAINED BY ASSESSEE THAT HE IS REQUIRED TO PAY 90% OF THE COMMISSION TO THE CLIENTS WHICH IS A GENERAL PRACTICE IN INSURANCE BUS INESS. ACCORDINGLY SAME WAS CLAIMED AS DEDUCTION WITHIN GROSS COMMISSION INCOME WHICH WAS NOT ALLOWED BY THE AO. 5. WITH REGARD TO THE AOS QUERY REGARDING CASH DEPOSITED IN THE BANK ACCOUNT IT WAS EXPLAINED THAT ICICI PRUDENTIAL LIFE INSURANCE CO. OFFERS ADDITIONAL INCENTIVES AND REWARDS TO COMPLETE TARGETS PERIODICALLY . HOWEVER, IT DOES NOT ACCEPT CASH BEYOND RS.20,000/ - . WHEN THE DEADLINES ARE APPROACHING, ASSESSEE HELPED HIS CLIEN TS IN OBTAINING ACCOUNT PAYEE DEMAND DRAFTS BY ACCEPTING CASH AND ARRAN GIN G THE DD O N THEIR BEHALF. FOR T HIS PURPOSE A SSESSEE HAD OPENED A SEPARATE ACCOUNT WITH THANE JANATA SAHAKARI BANK AND DEPOSITED THE CASH SO RECEIVED FROM CLIENTS FOR AND ON THEIR BEHALF ONLY TO ARRANGE DD'S ON THEIR BEHALF WITHIN THE PERIODIC TIME LINE OF ICLCI PRUDENTIAL LIFE INSURANCE CO. THIS WAS ALSO EXPLAINED TO THE ITO IN DETAIL VIDE LETTER DATED 23.12.2013 . IT APPEARS THAT REPLY OF THE ASSESSEE HAS NOT BEEN CONSIDERED PROPERLY. 6. IN THE INTEREST OF JUSTICE AND FAIR PLAY, I RESTORE BOTH THE ISSUE BAC K TO THE FILE OF THE AO BY DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY AND CONSIDERIN G THE ASSESSEES REPLY. THE AO IS ALSO AT LIBERTY TO CALL FOR THE PERSON TO WHOM ASSESSEE HAS PAID BACK 90% OF ITS COMMISSION SO AS TO FIND THE FA CTUAL POSITION. AO IS AL SO AT A LIBERTY TO CALL ASSESSEES CLIENTS FOR WHOM ASSESSEE HAS DEPOSITED CASH IN BANK FOR OBTAINING DRAFTS, SO IT A NO. 6715/MUM/2016 MR. SUNIL BAHL 3 THAT SOURCE OF FUNDS CAN BE ESTABLISHED. ASSESSEE IS ALSO DIRECTED TO FURNISH ALL THESE DETAILS AND EVIDENCE BEFORE THE AO. I DIRECT ACCORDINGL Y. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 26 / 04 /2017 SD/ - ( R.C.SHARMA ) ACCOUNTANT MEMBER MUMBAI ; DATE D 26 / 04 /201 7 KARUNA SR. 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//