NEUMEC & SUCHIT ASSOCIATES, MUMBAI V. CIT-58, MUMBAI

ITA 7516/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6959 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 31-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAVITA P KAUSHIKLD
• Assessee Lawyers: ADITYA MAHESHWARI LD
• Keywords: TDS
• Section: 143(3); 133(6); 208

Judgement Text

ITA NO.7516/MUM/2018 NUMEC & SUCHIT ASSOCIATES ASSESSMENT YEAR :2012-13 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, VP AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.7516/MUM/2018 ( / ASSESSMENT YEAR : 2012-13 ) N EUMEC & SUCHIT ASSOCIATES 207, REGENT CHAMBERS, 208 NARIMAN POINT MUMBAI- 400 021. / VS. JCIT, RANGE - 17(2) ROOM NO.120, 1 ST FLOOR AAYKAR BHAVAN, M.K. ROAD MUMBAI- 400 020. %& ./ ./PAN/GIR NO. AAFFN-6444-C ( &( /APPELLANT ) : ( )*&( / RESPONDENT ) ASSESSEE BY : SHRI ADITYA MAHESHWARI-LD.AR REVENUE BY : MS. KAVITA P. KAUSHIK-LD. DR / DATE OF HEARING : 03/02/2020 / DATE OF PRONOUNCEMENT : 05/02/2020 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1.1 AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEA R [IN SHORT REFERRED TO AS AY] 2012-13 CONTEST THE ORDERS OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-58, MUMBAI, [IN SHORT REFERRED TO AS CIT(A)], APPEAL NO. CIT(A)-58/MUMBAI/10320/2017-18 DATED 03/ 10/2018 ON FOLLOWING GROUNDS OF APPEAL: - ITA NO.7516/MUM/2018 NUMEC & SUCHIT ASSOCIATES ASSESSMENT YEAR :2012-13 2 ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEAR NED COMMISSIONER OF INCOME- TAX (APPEALS)-58 ERRED IN DISALLOWING THE SUM OF RS .11,00,000/- AS BROKERAGE PAID FOR BUSINESS PURPOSE AND REDUCED FROM WORK IN PROGR ESS. THE LD. AUTHORIZED REPRESENTATIVE URGED THAT THE CO RRECT QUANTUM UNDER DISPUTE MAY BE READ AS RS.12.55 LACS. 1.2 WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS A ND PERUSED THE RELEVANT MATERIAL ON RECORD. OUR ADJUDICATION TO TH E SUBJECT MATTER OF PRESENT APPEAL WOULD BE AS GIVEN IN SUCCEEDING PARA GRAPHS. 1.3 BRIEFLY STATED, THE ASSESSEE BEING RESIDENT FIR M STATED TO BE ENGAGED IN CIVIL CONSTRUCTION WAS ASSESSED FOR YEAR UNDER CONSIDERATION U/S. 143(3) ON 17/03/2015. THE ASSESSEE WAS SADDLED WITH DISALLOWANCE OF BROKERAGE EXPENSES OF RS.23.55 LACS SINCE THE AS SESSEE, IN THE OPINION OF LD. AO, WAS NOT ABLE TO FURNISH ANY DOCU MENTARY PROOF OR EVIDENCE THAT THE SAID EXPENDITURE WAS INCURRED TOW ARDS APARTMENTS/UNITS SOLD WITH COST OF SALE AND ENTITIE S TO WHOM THE SALE WERE MADE INCLUDING THE CONFIRMATION LETTERS FROM B ROKERS. 2.1 AGGRIEVED THE ASSESSEE ASSAILED THE SAME BEFORE LD. CIT(A) WHEREIN A REMAND REPORT WAS CALLED FOR AGAINST ASSE SSEES SUBMISSIONS. IN THE REMAND REPORT, IT WAS STATED BY LD. AO THAT THE ASSESSEE HAD FILED DOCUMENTARY EVIDENCES. FURTHER, REPLIES WERE RECEIV ED FROM BROKERS IN RESPONSE TO NOTICES ISSUED U/S 133(6) ALONG WITH TH EIR RESPECTIVE RETURN OF INCOME, BANK STATEMENT, CONFIRMATION LETTER ETC. THE ASSESSEE SUBMITTED THAT SINCE ALL THE REQUISITE DETAILS WERE FURNISHED, THE EXPENDITURE WAS AN ALLOWABLE DEDUCTION AND THE DISA LLOWANCE WAS NOT WARRANTED. 2.2 HOWEVER, LD. CIT(A) NOTED THAT THERE WAS NO UNI FORMITY IN BROKERAGE / COMMISSION RATES AND BROKERAGE FIGURES LACK ANY PARTICULAR ITA NO.7516/MUM/2018 NUMEC & SUCHIT ASSOCIATES ASSESSMENT YEAR :2012-13 3 PATTERN AND PORTRAYED WIDE VARIATION SHOWING LACK O F CREDIBILITY. THE RATE OF BROKERAGE RANGED BETWEEN 1% TO 2%. ACCORDINGLY, LD. CIT(A) BROUGHT DOWN THE BROKERAGE RATE TO A UNIFORM LEVEL OF 1% AN D UPHELD THE DISALLOWANCE OF RS.12.55 LACS. AGGRIEVED, THE ASSES SEE IS UNDER FURTHER APPEAL BEFORE US. 3. UPON CAREFUL CONSIDERATION OF FACTUAL MATRIX AS ENUMERATED BY US, IT EMERGES THAT THE ASSESSEE WAS SUCCESSFUL IN FURNISH ING THE REQUISITE DETAILS OF BROKERAGE PAYMENT, AS CALLED FOR BY LD. AO. THE CONFIRMATION LETTERS, BANK STATEMENTS, RETURN OF INCOME OF BROKE RS WAS PLACED ON RECORD. DUE TDS COMPLIANCE WAS MADE IN TERMS OF SEC . 194J. THE BROKERS WERE CLEARLY IDENTIFIED WHO RESPONDED TO NO TICES ISSUED U/S 133(6). IN SUCH A SCENARIO, THE ACTION OF LD. CIT(A ) IN RESTRICTING THE BROKERAGE RATE TO 1% UNIFORM ACROSS ALL PROPERTIES COULD NOT BE SAID TO BE A CORRECT APPROACH. NOTHING WAS BROUGHT ON RECOR D TO ESTABLISH THAT THE BROKERAGE WAS EXCESSIVE OR UNREASONABLE, IN ANY MANNER. THERE IS NO ALLEGATION THAT THE PAYMENT WAS NOT GENUINE. THE ASSESSEE HAD DULY DISCHARGED THE PRIMARY ONUS OF PROVING THE TRANSACT IONS. THEREFORE, SUSTAINING ADDITION IN THE MANNER AS SUSTAINED BY L D. CIT(A) WOULD NOT WITHSTAND THE SCRUTINY OF LAW, CONSIDERING THE FACT S AND CIRCUMSTANCES OF THE CASES. HENCE, BY DELETING THE SAME, WE ALLOW TH E APPEAL. 4. THE APPEAL STANDS ALLOWED IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 05 TH FEBRUARY, 2020. SD/- SD/- (MAHAVIR SINGH) (MA NOJ KUMAR AGGARWAL) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI; DATED : 05/02/2020 SR.PS, JAISY VARGHESE ITA NO.7516/MUM/2018 NUMEC & SUCHIT ASSOCIATES ASSESSMENT YEAR :2012-13 4 !'! / COPY OF THE ORDER FORWARDED TO : 1. &( / THE APPELLANT 2. )*&( / THE RESPONDENT 3. 1 ( ) / THE CIT(A) 4. 1 / CIT CONCERNED 5. 23),4 , 4 , / DR, ITAT, MUMBAI 6. 3567 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.