M/s. Shreem Steel & Tubes, Ahmedabad V. M/s. Deputy Commissioner of Income Tax, Circle-5(2), Ahmedabad

ITA 76/AHD/2017

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5483 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 10-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N DIVATIA
• Keywords: Principle of natural justice; Period of limitation; TDS; Set aside
• Section: 133(6); 201

Judgement Text

, , ,, ,LK LKLK LK- -- -,E ,E,E ,E- -- -LH LHLH LH IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ ITA NO. 76/AHD/2017 / ASSESSMENT YEAR: 2013-14 M/S. SHREEM STEEL & TUBES, 3, SECOND FLOOR, B. JADAV CHAMBERS ABOVE SALES INDIA ASHRAM ROAD, AHMEDABAD-380 009 (PAN NO. ABAFS 3839 G) VS. DCIT, CIRCLE 5(2), AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI S. N. DIVATIA, SR. D.R. REVENUE BY : SHRI APOORVA BHARDWAJ, SR. D.R. / DATE OF HEARING : 07.08.2018 / DATE OF PRONOUNCEMENT : 01.11.2018 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF T HE ASSESSEE AGAINST THE APPELLATE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-5, AHMEDABAD [CIT(A) IN SHORT] RELEVANT TO A SSESSMENT YEAR 2013-14. 2. ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1.1 THE ORDER PASSED U/S.250 ON 7-11-2016 FOR A.Y.2013-14 BY CIT(A)-5, ABAD UPHOLDING THE ADDITION OF RS. 3,14,020/- U/S 41(1) AND RS. 46,609/- TOWARDS UN-RECONCILED COMMISSION RECEIPT IS WHOLLY ILLEGA L, UNLAWFUL AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 1.2 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR ON FACT S IN NOT CONSIDERING FULLY AND PROPERLY THE SUBMISSIONS MADE AND EVIDENCE PRODUCED BY THE APPELLANT WITH REGARD TO THE IMPUGNED ADDITIONS. 2 ITA NO.76/AHD/2017 M/S. SHREEM STEEL & TUBES VS. DCIT A.Y.. 2013-14 2.1 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACT S IN CONFIRMING THAT THERE WAS CESSATION OF LIABILITY AS PER SEC. 41(1) IN RESPECT OF OUTSTANDING LIABILITY OF RS, 3,14,020/- OF KARNAVATI ROLLING MI LLS PVT LTD. 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD.CIT(A) OUGHT NOT TO HAVE UPHELD THAT THERE WAS CESSATION OF LIABIL ITY AS PER SEC. 41(1) IN RESPECT OF OUTSTANDING LIABILITY OF R S. 3,14,020/- OF KARNAVATI ROLLING MILLS PVT. LTD. 3.1 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS. 46,609/- AS COMMISSION RECE IPTS OF THIS YEAR, THOUGH IT WAS DULY DISCLOSED IN THE EARLIER YEAR. 3.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD.CIT(A) OUGHT NOT TO HAVE UPHELD THE ADDITION OF RS. 46,609/ - AS COMMISSION RECEIPTS OF THIS YEAR. IT IS, THEREFORE, PRAYED THAT THE ADDITIONS UPHELD BY THE CI T(A) MAY KINDLY BE DELETED. 3. THE FIRST ISSUE RAISED BY THE ASSESSEE IS THAT LD C IT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 3,14,020/- ON ACCOUNT OF CESSATION OF LI ABILITY U/S 41(1) OF THE ACT. 4. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS A PARTNERS HIP FIRM AND ENGAGED IN THE WHOLESALE TRADING OF TMT BARS. THE ASSESSEE IN ITS BALANCE SHEET HAS SHOWN SUNDRY CREDITORS AS DETAILED UNDER: SR. NO. NAME OF THE CREDITORS AMOUNT 1. KARNAWATI ROLLING MILLS PVT. LTD. 3,14,020/- 2. SUN STEEL 53,618/- 4.1 THE AO DURING THE ASSESSMENT PROCEEDINGS OBSERVED THAT THE ASSESSEE HAS BEEN SHOWING THESE SUNDRY CREDITORS IN ITS BALANCE SHEET SINCE LONG. THEREFORE, THE AO SOUGHT AN EXPLANATION FROM THE ASSESSEE. 4.2 THE ASSESSEE IN COMPLIANCE THERETO VIDE LETTER DATED 23.12.2015 SUBMITTED THAT THE PAYMENT TO THESE SUNDRY CREDITORS HAS NOT BE EN MADE DUE TO SOME 3 ITA NO.76/AHD/2017 M/S. SHREEM STEEL & TUBES VS. DCIT A.Y.. 2013-14 DISPUTE. THE ASSESSEE FURTHER SUBMITTED THAT THE OUTST ANDING LIABILITY AGAINST SUN STEEL HAS BEEN WRITTEN BACK IN THE F.Y. 2014-15 WHICH WAS OFFERE D TO TAX. HOWEVER, THE AO OBSERVED THAT THERE WAS NO REPLY FURN ISHED BY THE ASSESSEE IN RESPECT OF THE SUNDRY CREDITORS NAMELY KARNAWATI ROLLI NG MILLS PVT. LTD. THEREFORE, THE AO ASSUMED THAT LIABILITY IN RESPECT OF KARNAWATI ROLLING MILLS PVT. LTD. HAS CEASED TO EXIST. ACCORDINGLY, THE AO DISALL OWED THE SAME U/S 41(1) OF THE ACT AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 5. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL TO LD. CIT(A). T HE ASSESSEE BEFORE THE LD CIT(A) SUBMITTED THAT THE LIABILITY IN RESPECT OF SUNDRY CREDITORS NAMELY KARNAWATI ROLLING STEEL PVT. LTD. HAS NOT CEASED TO EXIST IN THE BOOKS OF ACCOUNTS THEREFORE THERE IS NO QUESTION OF TREATING T HE SAME AS INCOME U/S 41(1) OF THE ACT. HOWEVER, THE LD CIT(A) DISREGARDED THE CONTENTION OF THE ASSESSEE AND CONFIRMED THE ORDER OF AO BY OBSERVING AS UNDER: 4.3. THE AO HAS NOTICED THAT NO CONFIRMATION WAS PROVIDED BY T HE ASSESSEE IN RESPECT OF SUNDRY CREDITOR KARNAVATI ROLLING MILLS PVT. L TD. IT IS FURTHER NOTICED THAT NOTHING HAS BEEN STATED BY THE ASSESSEE IN RESPECT O F KARNAVATI ROLLING MILLS PVT. LTD. WHERE THE BALANCES ARE OUTSTANDING FOR A LONG PER IOD. THEREFORE, THE AO HAS MADE THE ADDITION OF AN AMOUNT OF RS.3,14,020/- AS PER T HE PROVISIONS OF SECTION 41(1)(A) OF THE ACT. 4.3.1. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE APPE LLANT HAS SUBMITTED THAT THE ASSESSEE HAS NOT RECEIVED ANY BENEFIT AND MERELY B ECAUSE THE AMOUNT IS OUTSTANDING SINCE 2010, IT CANNOT BE INFERRED THAT THE LIABILITY HAS CEASED TO EXIST AND THE ASSESSEE HAS OBTAINED ANY BENEFIT BY WAY OF REMISSI ON. THE APPELLANT HAS RELIED UPON CERTAIN CASES AS CITED SUPRA. 4.3.2. THE FACTS OF THE CASE AND THE SUBMISSIONS ARE CONSIDER ED. DURING THE ASSESSMENT PROCEEDINGS, THE AO HAS SPECIFICALLY CALLED FOR THE CONFIRMATION OF THE 4 ITA NO.76/AHD/2017 M/S. SHREEM STEEL & TUBES VS. DCIT A.Y.. 2013-14 SAID PARTY AND THE REASONS FOR OUTSTANDING LIABILITY. A P ERUSAL OF THE ASSESSMENT ORDER SHOWS THAT THE ASSESSEE HAS NOT STATED ANYTHING REGARD ING THE REASONS FOR NON-PAYMENT OF THE LIABILITY AND NO CONFIRMATION WAS FUR NISHED. CONSIDERING THESE FACTS, THE ACTION OF THE AO OF TREATING THE SAME AS CESSATION OF LIABILITY IS FOUND TO BE JUSTIFIED. THUS THE GROUND OF APPEAL IS DISMISSED. BEING AGGRIEVED BY THE ORDER OF LD CIT(A) ASSESSEE IS IN APPEAL B EFORE US. 6. THE LD AR BEFORE US FILED A PAPER BOOK RUNNING FROM PAGES 1-11 AND DREW OUR ATTENTION ON THE COPIES OF THE LEDGERS OF K ARNAWATI ROLLING MILLS PVT. LTD. WHICH ARE PLACED ON PAGES 9 & 10 OF THE PAPER BOOK AND DEMONSTRATED THAT THE LIABILITY IS STILL APPEARING IN ITS BOOKS OF ACCOUNTS. 7. ON THE OTHER HAND, LD DR VEHEMENTLY SUPPORTED THE O RDERS OF AUTHORITIES BELOW. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MAT ERIALS AVAILABLE ON RECORD. THE FACTS OF THE CASE ARE NOT IN DISPUTE THE REFORE WE ARE NOT INCLINED TO REPEAT THE SAME FOR THE SAKE OF BREVITY AND CONVENIENCE. 8.1 THE RELEVANT EXTRACT OF THE PROVISION OF SECTION 41(1) OF THE ACT READS AS UNDER: PROFITS CHARGEABLE TO TAX. 41. 70 [ 71 (1) WHERE AN ALLOWANCE OR DEDUCTION HAS BEEN MADE IN THE ASSESSMENT FOR ANY YEAR IN RESPECT OF LOSS, EXPENDITURE OR TRADING LIABIL ITY INCURRED BY THE ASSESSEE (HEREINAFTER REFERRED TO AS THE FIRST-MENTIONED PERSON) AND SUBSE-QUENTLY DURING ANY PREVIOUS YEAR, (A) THE FIRST-MENTIONED PERSON HAS OBTAINED 72 , WHETHER IN CASH OR IN ANY OTHER MANNER WHATSOEVER, ANY AMOUNT IN RESPECT OF SUCH 72 LOSS OR EXPENDITURE 72 OR SOME BENEFIT IN RESPECT OF SUCH TRADING LIABILITY 72 BY WAY OF REMISSION OR CESSATION THEREOF 72 , THE AMOUNT OBTAINED BY SUCH PERSON OR THE VALUE OF BENEFIT ACCRUING TO HIM SHALL BE DEEMED TO BE PROFITS AND GAINS OF BUSINESS OR PROFESSION AND ACCOR DINGLY CHARGEABLE TO INCOME-TAX AS THE INCOME OF THAT PREVIOUS YEAR, WHETHER THE BUSINESS OR PROFESSION IN RESPECT OF WHICH THE ALLOWANCE OR DEDUCTION HAS BEEN MADE IS IN EXISTENCE IN THAT YEAR OR NOT; OR 5 ITA NO.76/AHD/2017 M/S. SHREEM STEEL & TUBES VS. DCIT A.Y.. 2013-14 (B) THE SUCCESSOR IN BUSINESS HAS OBTAINED 72 , WHETHER IN CASH OR IN ANY OTHER MANNER WHATSOEVER, ANY AMOUNT IN RESPECT OF WHICH LOSS OR EXPEN DITURE WAS INCURRED BY THE FIRST-MENTIONED PERSON OR SOME BENEFIT IN RESPECT OF THE TRADING LIABILITY REFERRED TO IN CLAUSE (A) BY WAY OF REMISSION OR CESSATION THEREOF 72 , THE AMOUNT OBTAINED 72 BY THE SUCCESSOR IN BUSINESS OR THE VALUE OF BENEFIT ACCRUIN G TO THE SUCCESSOR IN BUSINESS SHALL BE DEEMED TO BE PROFITS AND GAINS OF THE BUSINESS OR PROF ESSION, AND ACCORDINGLY CHARGEABLE TO INCOME-TAX AS THE INCOME OF THAT PREVIOUS YEAR. A PLAIN LOOK TO THE ABOVE PROVISION REVEALS THAT AN ITE M CAN BE TREATED AS INCOME IF IT IS WRITTEN OFF IN THE BOOKS OF ACCOUNTS . IN CASE BEFORE US, THE AUTHORITIES BELOW HAS NOT GIVEN ANY FINDING SUGGESTIN G THAT THE ASSESSEE HAS WRITTEN OFF THE LIABILITY SHOWN IN THE NAME OF KARNAWATI ROLLING MILLS PVT. LTD. THUS, THE LIABILITY CANNOT BE CEASED TO EXIST UNTIL AND UNLESS IT IS WRITTEN OFF IN THE BOOKS OF ACCOUNTS. IN THIS REGARD, WE FIND SUPPORT AND GUIDANCE FROM THE JUDGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT-II VS. NITIN S. GARG WHEREIN IT WAS HELD AS UNDER: 15. IN THE CASE BEFORE US, IT IS NOT BEEN ESTABLISHED THAT THE ASSESSEE HAS WRITTEN OFF THE OUTSTANDING LIABILITIES IN THE BOOKS OF ACCOUN T. THE APPELLATE TRIBUNAL IS JUSTIFIED IN TAKING THE VIEW THAT AS ASSESSEE HAD CONTI NUED TO SHOW THE ADMITTED AMOUNTS AS LIABILITIES IN ITS BALANCE SHEET THE SAME CANNOT BE TREATED AS ASSESSMENT OF LIABILITIES. MERELY BECAUSE THE LIABILIT IES ARE OUTSTANDING FOR LAST MANY YEARS, IT CANNOT BE INFERRED THAT THE SAID LIABILIT IES HAVE SEIZED TO EXIST. THE APPELLATE TRIBUNAL HAS RIGHTLY OBSERVED THAT THE ASSESSING OFFICER SHALL HAVE TO PROVE THAT THE ASSESSEE HAS OBTAINED THE BENEFITS IN RES PECT OF SUCH TRADING LIABILITIES BY WAY OF REMISSION OR CESSATION THEREOF WH ICH IS NOT THE CASE BEFORE US. MERELY BECAUSE THE ASSESSEE OBTAINED BENEFIT OF REDUCT ION IN THE EARLIER YEARS AND BALANCE IS CARRIED FORWARD IN THE SUBSEQUENT YEAR, IT WO ULD NOT PROVE THAT THE TRADING LIABILITIES OF THE ASSESSEE HAVE BECOME NON EXISTENT. 16. MOREOVER, AS POINTED OUT IN THE CASE OF SUGAULI SUGAR WORKS (P.) LTD. (SUPRA), VIDE THE LAST FIVE LINES OF THE PARAGRAPH-6 OF THE JUDGEMENT, THE QUESTION WHETHER THE LIABILITY IS ACTUALLY BARRED BY LIMI TATION IS NOT A MATTER WHICH CAN BE DECIDED BY CONSIDERING THE ASSESSEE'S CASE AL ONE BUT HAS TO BE DECIDED ONLY IF THE CREDITOR IS BEFORE THE CONCERNED AUTHORITY. IN THE ABSENCE OF THE CREDITOR, IT IS NOT POSSIBLE FOR THE AUTHORITY TO COME TO A CONCLUSION THAT THE DEBT IS BARRED AND HAS BECOME UNENFORCEABLE. THERE MAY BE CIRC UMSTANCES WHICH MAY ENABLE THE CREDITOR TO COME WITH A PROCEEDING FOR ENFORC EMENT OF THE DEBT EVEN AFTER EXPIRY OF THE NORMAL PERIOD OF LIMITATION AS PROVIDED IN T HE LIMITATION ACT. 6 ITA NO.76/AHD/2017 M/S. SHREEM STEEL & TUBES VS. DCIT A.Y.. 2013-14 17. WE, THUS, FIND THAT THE VIEWS TAKEN BY THE TRIBUNAL IS AB SOLUTELY CONSISTENT WITH THE ONES TAKEN BY THE SUPREME COURT IN THE CASE OF SUGAULI SUGAR WORKS (P.) LTD. (SUPRA) AND OTHER DECISIONS WHICH HAVE BEEN REFERRE D TO IN THE JUDGMENT. WE DO NOT FIND ANY ERROR MUCH LESS AN ERROR O F LAW IN THE JUDGMENT AND ORDER OF THE TRIBUNAL. FROM THE PRECEDING DISCUSSION IT IS CLEAR THAT THE LI ABILITY IN RESPECT OF KARNAWATI ROLLING PVT. LTD HAS NOT CEASED TO EXIST IN TH E BOOKS OF ACCOUNTS. THEREFORE IN OUR CONSIDERED VIEW THE PROVISION UNDE R SECTION 41(1) OF THE ACT CANNOT BE INVOKED. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD CIT(A) AND DIRECT THE AO TO DELETE THE ADDITION MADE U/S 41(1) OF THE ACT FOR RS. 3,14,020/-. HENCE, THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 9. THE NEXT ISSUE RAISED BY THE ASSESSEE IN THIS APPEA L IS THAT LD CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 46,609/- AS COMMISSION R ECEIVED DURING THE YEAR. 10. THE AO DURING THE ASSESSMENT PROCEEDINGS OBSERVED THAT THE ASSESSEE HAS RECEIVED COMMISSION OF RS. 46,609/- AS PER THE ITS DE TAILS. THE COMMISSION WAS RECEIVED FROM M/S. B. KETAN & CO. ON 31.10.2012 AFTER DEDUCTI ON OF TDS OF RS. 4661/-. HOWEVER, THE AO FOUND THAT THE ASSESSEE HAS NOT SHOWN ANY COMMISSION INCOME IN ITS BOOKS OF ACCOUNTS AND ACCORDI NGLY AN EXPLANATION WAS SOUGHT FROM THE ASSESSEE. 10.1 THE ASSESSEE BEFORE THE AO SUBMITTED THAT IT HAS RAIS ED A DEBIT NOTE FOR THE COMMISSION ON 31.03.2012 TO M/S. B. KETAN & CO. WHICH WAS OF FERED TO TAX IN THE A.Y. 2012-13. THE ASSESSEE IN RESPECT OF HIS CLAIM FILED THE COPY OF COMMISSION ACCOUNT BEFORE THE AO. 7 ITA NO.76/AHD/2017 M/S. SHREEM STEEL & TUBES VS. DCIT A.Y.. 2013-14 HOWEVER, THE AO DISAGREED WITH THE SUBMISSION OF THE ASSESSEE ON THE GROUND THAT IN THE A.Y. 2012-13 THE ASSESSEE HAS SHOWN COMMISSION INCOME OF RS. 58,870/- FROM THE M/S. B. KETAN & CO. WHEREAS THE ITS DETAIL S REVEALS THE COMMISSION AMOUNT OF RS. 46,609/- ONLY. ACCORDINGLY, THE AO DISREGARDED THE CONTENTION OF THE ASSESSEE ON ACCOUNT OF MISMATCH IN THE AMOUNT OF COMMISSION. THUS, THE AO TREATED THE AMOUNT OF RS. 46,609/ - AS COMMISSION INCOME AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 11. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL TO LD CIT(A). T HE ASSESSEE BEFORE THE LD CIT(A) SUBMITTED THAT THE AMOUNT OF COMMISSIO N FOR RS. 46,609/- FROM M/S. B. KETAN & CO. WAS RECEIVED IN THE YEAR UNDER CONSI DERATION BUT THE BILL FOR THE COMMISSION OF RS. 58,870/- WAS RAISED ON 30.03.2012. THE AMO UNT OF COMMISSION INCOME OF RS. 58,870/- WAS OFFERED TO TAX IN T HE A.Y. 2012-13. THEREFORE THERE CANNOT BE ANY FURTHER ADDITION OF RS. 46,609/- IN THE YEAR UNDER CONSIDERATION. IF THE ADDITION IS SUSTAINED THEN IT WILL L EAD TO DOUBLE ADDITION. HOWEVER, THE LD CIT(A) DISREGARDED THE CONTENTION OF THE ASSESSEE AND CONFIRMED THE ORDER OF AO BY OBSERVING AS UNDER: 4.3.3. WITH REGARD TO THE ADDITION ON ACCOUNT OF COMMISSION IN COME, THE AO HAS MADE ADDITION OF RS.46,609/- ON ACCOUNT OF COMMISSION INCOME ON THE GROUND THAT THE COMMISSION INCOME SHOWN FROM B. KETAN & CO. IN THE F.Y. 2011-12 IS RS.58,870/-WHEREAS AS PER ITS DETAILS, IT IS RS.46,609 /-. THE AO HAS ALSO OBSERVED THAT THE ASSESSEE HAS FAILED TO ADDUCE AN Y EVIDENCE TO THE EFFECT THAT BOTH THESE FIGURES RELATE TO SAME TRANSACTION THEREFOR E THE APO HAS MADE AN ADDITION OF RS.46,609/-. 4.3.4. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE APPEL LANT HAS CONTENDED THAT THAT THE ASSESSEE HAS RAISED COMMISSION DEBIT NOTE ON 30.03.2012 FOR RS,58,870/- FOR DIRECT SALES TO CADILLA HEALTH CARE LTD. B Y B. KETAN & CO. AND SHOWN AS INCOME IN THE A.Y. 2012-13. IT IS FURTHER CONTENDED THAT THE ASSESSEE HAS RECEIVED RS.46,609/- FROM B. KETAN & CO. IN F.Y. 2012-13 AGAIN ST OUTSTANDING FROM D. KETAN & CO. PERTAINING TO INCOME CONSIDERE D IN F.Y. 201 1- 12. 8 ITA NO.76/AHD/2017 M/S. SHREEM STEEL & TUBES VS. DCIT A.Y.. 2013-14 4.3.5. THE FACTS OF THE CASE AND THE SUBMISSIONS ARE CONSIDERE D. THE AO HAS RIGHTLY OBSERVED THAT THERE IS NOTHING ON RECORD WHICH SHOWS TH AT BOTH THIS FIGURES RELATED TO SAME TRANSACTION. THEREFORE, THE CO NTENTION OF THE APPELLANT THAT THIS INCOME HAS ALREADY SHOWN IN THE F.Y. 2012-13 CANNOT BE ACCEPTED. THUS THE ADDITION MADE BY THE AO IS CONFIRMED. BEING AGGRIEVED BY THE ORDER OF LD CIT(A) ASSESSEE IS IN APPEAL B EFORE US. 12. LD AR BEFORE US REITERATED THE SUBMISSIONS AS MADE B EFORE THE LD CIT(A). THE LD AR ALSO DREW OUR ATTENTION ON THE COPY OF THE LEDGER SHOWING THE AMOUNT OF COMMISSION RECEIVED FROM M/S. B. KETAN & CO. WHICH IS PLACED ON PAGE 11 OF THE PAPER BOOK. 13. ON THE OTHER HAND, LD DR VEHEMENTLY SUPPORTED THE O RDERS OF AUTHORITIES BELOW. 14. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MAT ERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ADDITION WAS MADE BY T HE AO ON THE GROUND THAT THE ASSESSEE AS PER AIR HAS RECEIVED A SUM OF RS. 46, 609/- FROM M/S. B. KETAN & CO. WHICH IS NOT DISCLOSED BY THE ASSESSEE IN ITS INCOM E TAX RETURN. FROM THE PRECEDING DISCUSSION, THERE IS NO DISPUTE T HAT THE ADDITION WAS SUSTAINED MERELY ON THE BASIS OF ITS DETAILS. THE ASSESS EE BEFORE THE LOWER AUTHORITY HAS FURNISHED THE COPIES OF THE LEDGERS BEG INNING FROM 01.04.2011 TO 31.03.2013 DEMONSTRATING THE AMOUNT OF COMMISSION INCOME RECEI VED FROM M/S. B. KETAN & CO. IN THE A.Y. 2012-13. ON PERUSAL OF THE SAME , WE FIND THAT THE ASSESSEE HAS RAISED A DEBIT NOTE TO M/S. B. KETAN & CO . FOR RS. 58,870/- IN THE F.Y. 2011-12 WHICH WAS ALSO OFFERED TO TAX IN THE F.Y. 2011-12. THIS FACT WAS 9 ITA NO.76/AHD/2017 M/S. SHREEM STEEL & TUBES VS. DCIT A.Y.. 2013-14 NOT BELIEVED BY ANY OF THE AUTHORITY BELOW ON THE GR OUND THAT THERE WAS A MISMATCH IN THE AMOUNT OF COMMISSION. HOWEVER, WE NOTE THAT THE ASSESSEE HAS FURNISHED THE AD DRESS OF M/S. B. KETAN & CO. AS EVIDENT FROM THE COPY OF THE LEDGER PLACED O N PAGE 11 OF THE PAPER BOOK BUT NONE OF THE AUTHORITY BELOW HAS EXERCISED IT S POWER BY ISSUING NOTICE U/S 133(6) OF THE ACT TO CONFIRM THE AMOUNT OF COMMIS SION. THUS, IN OUR CONSIDERED VIEW, THE ADDITION CANNOT BE SUSTAINED IN T HE HANDS OF THE ASSESSEE MERELY ON THE GROUND OF ITS DETAILS. THE AO BEFORE M AKING THE ADDITION SHOULD HAVE ENQUIRED AND CREATED MORE EVIDENCE SUGGESTING THAT THE ASSESSEE HAS NOT OFFERED THE COMMISSION INCOME IN THE INCOME TAX RETU RN. IN THE ABSENCE OF ANY CONCRETE DOCUMENTARY EVIDENCE, WE ARE INCLINED TO RE VERSE THE ORDER OF AUTHORITIES BELOW. THUS, WE DIRECT THE AO TO DELETE TH E ADDITION MADE FOR THE COMMISSION INCOME OF RS.46,609/-. HENCE, THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED . 14. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE COURT ON _1 ST _ NOVEMBER, 2018 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER ( WASEEM AHMED ) ACCOUNTANT MEMBER AHMEDABAD; DATED 01/11/2018 PRITI YADAV, SR.PS 10 ITA NO.76/AHD/2017 M/S. SHREEM STEEL & TUBES VS. DCIT A.Y.. 2013-14 ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' # / CONCERNED CIT 4. ' # () / THE CIT(A) 5, AHMEDABAD. 5. &'( ! , ! , *+, , / DR, ITAT, AHMEDABAD. 6. (- ./ / GUARD FILE. / BY ORDER, & //TRUE COPY// '/# $% ( DY./ASSTT.REGISTRAR) &'(, #)* / ITAT, AHMEDABAD 1. DATE OF DICTATION 08/10/2018 (PAGE-7) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : .. 17/10/2018 3. OTHER MEMBER .. 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 23/10/2018 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT .. 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER 10. DATE OF DESPATCH OF THE ORDER