ITO 29(2)(1), MUMBAI V. KIRAN ANIL BIST, MUMBAI

ITA 687/MUM/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6910 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2012-2013
• Appeal Filed On: 31-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revised return
• Section: 142(1)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, H MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NO.687/MUM/2017 ASSESSMENT YEAR: 2012-13 INCOME TAX OFFICER-29(2)(1), BUILDING NO.C-10, ROOM NO.201, INCOME TAX OFFICE, PRATYAKSHAKAR BAHVAN, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI-400051 / VS. KIRAN ANIL BIST, 202, B. WING, KAMAL PARK, NEAR MANGATRAM PETROL PUMP, BHANDUP(W), MUMBAI-400078 ( / REVENUE) ( #$% & /ASSESSEE) PAN. NO . AJAPB3460A ' ( & ) / DATE OF HEARING : 20/06/2018 ( & ) / DATE OF ORDER: 20/06/2018 ! / REVENUE BY SHRI RAJAT MITTAL-DR #$% & ! / ASSESSEE BY SHRI BHUPENDRA SHAH ITA NO.687/MUM/2017 KIRAN ANIL BIST 2 / O R D E R PER JOGINDER SINGH(JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATE D 09/11/2016 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, DIRECTING THE ASSESSING OFFICER TO ESTIMATE COMMISS ION AT THE RATE OF 0.1% OF THE SALES TURNOVER WHICH WORKS OUT TO RS.3,12,764/- IN STEAD OF 2% AND THEREBY GRANTING R ELIEF OF RS.59,42,474/- WITHOUT APPRECIATING THE DETAIL FACT S, RELYING UPON THE DECISION IN THE CASE OF SMT. KALAWATI NEGI , WHERE ON SIMILAR FACTS, THE COMMISSION WAS ESTIMATED AT THE RATE OF 0.1% OF THE SALES TURNOVER. 2. DURING HEARING, THE LD. DR, SHRI RAJAT MITTAL, DEFENDED THE ADDITION MADE BY THE LD. ASSESSING OFF ICER BY CLAIMING THAT THE ASSESSEE IS DOING CIRCULAR TRADIN G, THEREFORE, THE LD. COMMISSIONER OF INCOME TAX (APPE AL) WRONGLY FOLLOWED THE DECISION OF SMT. KALAWATI NEGI . ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE, SHRI BHUPENDRA SHAH, STRONGLY DEFENDED THE IMPUGNED ORDER BY INVIT ING OUR ATTENTION TO THE FACTUAL FINDING RECORDED BY THE LD . COMMISSIONER OF INCOME TAX (APPEAL) BY CLAIMING THA T IDENTICALLY IN THE CASE OF SMT. KALAWATI NEGI, THE DEPARTMENT ITSELF CALCULATED THE COMMISSION @0.1% OF THE SALES TURNOVER. ITA NO.687/MUM/2017 KIRAN ANIL BIST 3 THE ASSESSEE ALSO FURNISHED THE COPY OF THE ASSESSM ENT ORDER DATED 20/03/2015 IN THE CASE OF SMT. KALAWATI NEGI FOR ASSESSMENT YEAR 2011-12. THIS FACTUAL MATRIX WAS N OT CONTROVERTED BY THE LD. DR. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL HAVING SALAR Y INCOME FROM M/S SHIRDI INDUSTRIES LTD. AND ALSO CARRYING O UT BUSINESS ACTIVITY IN THE NAME OF HIRALAL PRINTING, WHICH IS ENGAGED IN TRADING ACTIVITIES OF MDF BOARD/PLYWOOD, DECLARED INCOME OF RS.1,93,074/- IN ITS RETURN FILED ON 20/0 7/2012. THEREAFTER THE ASSESSEE FILED REVISED RETURN ON 29/ 03/2014, DECLARING TOTAL INCOME OF RS.2,07,880/- WHICH WAS P ROCESSED UNDER SECTION 143(1) OF THE ACT. THE CASE OF THE AS SESSEE WAS SELECTED UNDER CASS, THEREFORE, NOTICE UNDER SECTIO N 143(2) AND 142(1) WERE ISSUED/SERVED UPON THE ASSESSEE. TH E ASSESSEE ATTENDED THE PROCEEDINGS AND FILED THE DET AILS AS IS EVIDENCED FROM ASSESSMENT ORDER ITSELF. THE LD. ASS ESSING OFFICER WHILE FRAMING THE ASSESSMENT MADE ADDITION OF RS.62,55,235/- ON ACCOUNT OF COMMISSION BY ESTIMATI NG THE SAME @ 2% OF THE SALES TURNOVER OF RS.31,27,64,170/ -. THE ITA NO.687/MUM/2017 KIRAN ANIL BIST 4 LD. COMMISSIONER OF INCOME TAX (APPEAL) HAS REPRODU CED THE OBSERVATION MADE IN THE ASSESSMENT ORDER. FINALLY, THE LD. COMMISSIONER OF INCOME TAX (APPEAL) REDUCED THE EST IMATED COMMISSION @ 0.1% AGAINST 2% MADE BY THE LD. ASSESS ING OFFICER. THE REVENUE IS AGGRIEVED AND IS IN APPEAL BEFORE THIS TRIBUNAL. 2.2. IF THE OBSERVATION MADE IN THE ASSESSMENT ORD ER, LEADING TO ADDITION MADE TO THE TOTAL INCOME, CONCL USION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF K EPT IN JUXTAPOSITION AND ANALYZED, THE DISALLOWANCE/ADDIT ION WAS MADE BY THE LD. ASSESSING OFFICER MERELY ON THE PRE SUMPTION THAT THE ASSESSEE IS PROVIDING ACCOMMODATION ENTRIE S AND THUS MUST HAVE EARNED SOME COMMISSION INCOME. HOWEV ER, WE FIND THAT NO SUCH EVIDENCE WAS BROUGHT ON RECORD BY THE LD. ASSESSING OFFICER FOR SUCH PRESUMPTION. THE ASS ESSEE IS AN EMPLOYEE OF ONE ASIA GROUP. THERE IS AN UNCONTRO VERTED FINDING IN THE IMPUGNED ORDER THAT THE AMOUNT OF SA LE AND PURCHASES ARE EXACTLY SAME AND NO PROFIT OR LOSS RE SULTED FROM SUCH PURCHASE/SALE. THE ASSESSEE HAS ADMITTED THAT THE TRANSACTION OF SALE AND PURCHASES WERE WITHIN THE G ROUP ITA NO.687/MUM/2017 KIRAN ANIL BIST 5 COMPANIES ONLY AND WERE MADE AT THE INSTANCE OF THE EMPLOYER TO INCREASE THE TURNOVER OF THE GROUP COMP ANY. IT WAS ALSO FURTHER ADMITTED THAT THERE WAS NO MOVEMEN T OF GOODS AND THE TRANSACTIONS WERE SHOWN OF DOING CIRC ULAR TRADING WITHIN THE GROUP MERELY TO INCREASE THE TUR NOVER. THE LD. COMMISSIONER OF INCOME TAX (APPEAL) HAS MENTION ED THE CASE OF SMT. KALAWATI NEGI, WHO WAS ALSO AN EMPLOYE E OF THE SAME GROUP AND SHOWED SIMILAR TRANSACTION TO JACK U P THE TURNOVER, WHEREIN, THE LD. ASSESSING OFFICER ITSELF MADE THE ADDITION ON SUCH ACCOUNT @ 0.1%. NO CONTRARY DECISI ON WAS BROUGHT TO OUR NOTICE. THUS, WE FIND NO INFIRMITY I N THE CONCLUSION OF THE LD. COMMISSIONER OF INCOME TAX (A PPEAL), RESULTANTLY, THE APPEAL OF THE REVENUE IS DISMISSED . FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF HEARING ON 20/06/2018. SD/- SD/- ( MANOJ KUMAR AGGARWAL ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER ' MUMBAI; + DATED : 20/06/2018 F{X~{T? P.S/. .. ITA NO.687/MUM/2017 KIRAN ANIL BIST 6 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. -./ / THE APPELLANT (RESPECTIVE ASSESSEE) 2. 01./ / THE RESPONDENT. 3. 2 2 3& ( - ) / THE CIT, MUMBAI. 4. 2 2 3& / CIT(A)- , MUMBAI, 5. 56 0&# , 2 -) # 7 , ' / DR, ITAT, MUMBAI 6. 8$ 9' / GUARD FILE. ! / BY ORDER, /! (DY./ASSTT. REGISTRAR) , ' / ITAT, MUMBAI