Shanil Fatteshing Mahagaonkar, Kolhapur V. Deputy Commissioner of Income-tax,

ITA 692/PUN/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7205 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-11-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 12-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PRAMOG SHINGTE
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.692/PUN/2015 / ASSESSMENT YEAR : 2010-11 SHANIL FATTESING MAHAGAONKAR, 1145-E, SYKES EXTENSION, SHAHUPURI, KOLHAPUR PAN : AEHPM1846F . /APPELLANT VS. DCIT, CIRCLE-2, KOLHAPUR . / RESPONDENT ASSESSEE BY : SHRI PRAMOG SHINGTE REVENUE BY : SMT. ACHAL SHARMA, ADDL.CIT / DATE OF HEARING : 15.11.2017 / DATE OF PRONOUNCEMENT: 17.11.2017 / ORDER PER D. KARUNAKARA RAO, AM : THIS IS THE APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF CIT(A)-1&2, KOLHAPUR DATED 16-04-2013 FOR THE ASSES SMENT YEAR 2010-11. 2. ASSESSEE RAISED 4 GROUNDS IN THE APPEAL AND THE SAME ARE EXTRACTED AS UNDER : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) ERRED IN UPHOLDING THE DISALLOWANCE OF TH E EXPENDITURE ON ACCOUNT OF SALES COMMISSION OF RS.12,867/- AND RS.20,23,194/-. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF R S.1,75,000/- OUT OF TECHNICAL FEES. ITA NO.692/PUN/2015 SHANIL FATTESING MAHAGAONKAR 2 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD.CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF R S.3,50,000/- ON ACCOUNT OF INTERNAL AUDIT FEES PAID. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD.CIT(A) ERRED IN MAKING CONFIRMING THE DISALLOWAN CE OF RS.3,50,000/- PAID TO SHRI VIJAY RADEKAR AS PROFESS IONAL FEES. 3. BEFORE US, AT THE OUTSET, LD. COUNSEL FOR THE AS SESSEE BROUGHT OUR ATTENTION TO THE PAPER BOOK AND SUBMITT ED THAT ALL THE ISSUES RAISED IN THE APPEAL ARE REQUIRED TO REV ISIT TO THE FILE OF AO FOR FRESH ADJUDICATION. JUSTIFYING THE SAME, LD . COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE CERTIFICA TION GIVEN BY THE ASSESSEE ON THE PAPER BOOK AND READ OUT THAT SO ME OF THE ITEMS MENTIONED AT SL.NOS. 12, 13, 17, 18, 23, 24, 28, 29, 34, 35, 40, 41, 45, 46, 47, 51 ETC. WERE NOT FILED BEFORE T HE AO, WHILE ITEM NOS. 1 TO 63 WERE SUBMITTED BEFORE THE CIT(A). AO DID NOT HAVE THE BENEFIT OF SOME IMPORTANT DOCUMENTS LIKE LETTER S APPOINTING SOME INDIVIDUALS AS COMMISSION AGENTS WHO RECEIVED THE COMMISSION WHICH IS THE SUBJECT MATTER OF THE DISPU TE RAISED IN GROUND NO.1 OF THIS APPEAL. 4. FOR EXAMPLE, HE BROUGHT OUR ATTENTION TO PAGE 32 OF THE LETTER DATED 01-04-2009 APPOINTING MR. HEMANT K. SH INDE OF PUNE AS SALES REPRESENTATIVE BY THE ASSESSEE, LD. C OUNSEL FOR THE ASSESSEE SUBMITTED THAT THE SAID LETTER WAS FILED F OR THE FIRST TIME BEFORE THE CIT(A). IN THIS REGARD, HE BROUGHT OUR ATTENTION TO PARA NO.7 OF THE CIT(A) WHERE THE CIT(A) WENT ON RECORD IN MENTIONING THAT THE ASSESSEE FILED THE COPY OF THE APPOINTMENT LETTER WHICH WAS NOT FURNISHED BEFORE THE ASSESSING AUTHORITIES DURING THE ASSESSMENT PROCEEDINGS. THE FACT OF CONFIRMING THE ADDITION ON ACCOUNT OF COMMISSION PAYMENT OF RS.20,23,194/- MEN TIONED IN ITA NO.692/PUN/2015 SHANIL FATTESING MAHAGAONKAR 3 GROUND NO.1 AND WITHOUT CALLING FOR ANY REMAND REPO RT FROM THE AO IS UNFAIR AND UNSUSTAINABLE IN LAW. SIMILAR IS THE CASE WITH REGARD TO THE OTHER ADDITIONS AGITATED BY THE ASSES SEE IN THE PRESENT APPEAL. THEREFORE, IT IS THE PRAYER OF THE LD. COUNSEL FOR THE ASSESSEE BEFORE US THAT ALL THE GROUNDS RAISED IN THE APPEAL MAY BE REMANDED TO THE FILE OF THE AO. 5. ON HEARING BOTH THE SIDES ON THIS LIMITED ISSUES AND REQUEST OF LD. COUNSEL FOR THE ASSESSEE FOR REMANDI NG TO WHICH THE REVENUE RELIED HEAVILY AND DUTIFULLY ON THE ORD ERS OF THE AO AND THE CIT(A), WE FIND THE FIRST APPELLATE AUTHORI TY DID NOT FOLLOW THE PROCEDURE LAID DOWN IN SECTION 250(6) OF THE ACT AND ALSO WITHOUT CALLING FOR ANY REMAND REPORT FROM THE AO AS PER PROVISIONS OF SECTION 250(4) OF THE ACT ON THE ADDI TIONAL DOCUMENTS FILED BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE CIT(A). WE ALSO FIND THERE IS NO FORMAL REQUEST OF THE ASSESSEE FOR ADMISSION OF THE ADDITIONAL EVIDENCES. 6. CONSIDERING ALL THE ABOVE SAID INADEQUACIES AND INFIRMITIES IN THE PROCESS RELATING TO HEARING BY THE CIT(A) AN D, AS DESIRED BY THE LD. COUNSEL FOR THE ASSESSEE, WE REMAND ALL THE ISSUES RAISED IN THE GROUNDS OF APPEAL TO THE FILE OF THE AO FOR FRESH ADJUDICATION. IT GOES WITHOUT SAYING THAT THE AO S HALL GRANT REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE AND ADMIT THE ADDITIONAL EVIDENCES IF ANY FILED ALREADY AND T O BE FILED BY THE ASSESSEE DURING THE REMAND PROCEEDINGS IN CONNECTIO N WITH THE ISSUES RAISED ABOVE. ACCORDINGLY, ALL THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ITA NO.692/PUN/2015 SHANIL FATTESING MAHAGAONKAR 4 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 17 TH DAY OF NOVEMBER, 2017. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) /JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 17 TH NOVEMBER, 2017. / COPY OF THE ORDER FORWARDED TO : BY ORDER // TRUE COPY // //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE THE APPELLANT THE RESPONDENT THE CIT(A) - 1 & 2 , KOLHAPUR CIT - 1 & 2 , KOLHAPUR % , , A BENCH PUNE; / GUARD FILE.