HTA MARKETING SERVICES P.LTD ( FORMELRY KNOWN AS FORTUNE COMMUNICATIONS P. LTD), MUMBAI V. ACIT (OSD) 2(1), MUMBAI

ITA 7690/MUM/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88443 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 09-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 14-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JEETENDRA KUMAR SR
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

, , H , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI SAN JAY ARORA, ACCOUNTANT MEMBER ITA NO. 7 690 /MUM/201 1 ASSESSMENT YEAR: 200 7 - 08 HTA MARKETING SERVICES PVT. LTD. (FORMERLY KNOWN AS FORTUNE COMMUNICATIONS PVT. LTD.) LAXMI BUILDING, 2 ND FLOOR, SIR, P.M. ROAD, FORT, MUMBAI - 400 0 0 1. / VS. ACIT (OSD) - 2(1) , AAYAKAR BHAVAN, M.K. MARG MUMBAI - 400020 . ( / APPELLANT) ( / R ESPONDENT) P.A. NO. AAAC F 0692 A / ASSESSEE BY SHRI JITENDRA JAIN / REVENUE BY SHRI JEETENDRA KUMAR SR. AR / DATE OF H EARING : 10 /03/2015 / DATE OF PRONOUNCEMENT : 10 /03/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) DAT ED 19.8.2011 FOR THE AY 2007 - 08. THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER ON THE GROUND THAT THE LD. FIRST APPELLATE AUTHORITY ERRED IN ADDING 2 ITA NO. 7690 /MUM/20 11 RS.13,78,225/ - AS ESTIMATED INCOME ON THE BILLINGS MADE BY THEM TO SISTER CONCERN REJECTING THE ADDITIONA L EVIDENCE FILED BY THE ASSESSEE U/R. 46A TO ESTABLISH THAT THEY HAD NOT EARNED THE ADDITIONAL INCOME AS ALLEGED IN THE ASSESSMENT ORDER AND ALSO THE COMMISSION INCOME OF RS.4,56,585/ - . 2. THE CRUX OF ARGUMENT ADVANCED BY SHRI JITENDRA JAIN, LD. COUNSEL FOR THE ASSESSEE IS THAT REJECTION OF ADDITIONAL EVIDENCE FILED U/R. 46A OF THE IT RULES IS WITHOUT ANY JUSTIFICATION AND THE ASSESSEE HAS NOT EARNED ANY INCOME ON THE BILLING OF RS.4,59,40,840/ - MADE TO THEIR SISTER CONCERNS. THE LD. DR SHRI JEETENDER KUM AR DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER. 2.1 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS A SUBSIDIARY COMPANY OF M/S. HINDUSTAN THOMSON ASSOCIATES P VT. LTD. THE ASSESSEE ALONG WITH ITS HOLDING COMPANY ARE MAINLY IN THE BUSINESS OF ADVERTISEMENT. THE ASSESSEE, DURING THE YEAR, RECEIVED CERTAIN AMOUNTS ON ACCOUNT OF SALES FROM SIX CLIENTS AS MENTIONED IN THE ASSESSMENT ORDER. AS PER THE REVENUE THE ASSE SSEE DID NOT SHOW ANY INCOME FROM THESE SIX PARTIES ON ACCOUNT OF SALES. THE LD. ASSESSING OFFICER ESTIMATED COMMISSION INCOME @ 3% ON THE SALES WHICH RESULTED INTO ADDITION OF RS.30,78,225/ - . ON APPEAL, BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) THE CLAIM OF THE ASSESSEE WAS REJECTED. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DID NOT ADMIT THE APPLICATION OF THE ASSESSEE FILED U/R.46A OF THE RULES FOR ADMISSION OF ADDITIONAL EVIDENCE. THE 3 ITA NO. 7690 /MUM/20 11 RELEVANT PORTION FROM THE IMPUGNED ORDER AND THE REASONS FOR NOT ADMITTING THE EVIDENCE ARE REPRODUCED HEREUNDER FOR READY REFERENCE. I HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS OF THE ASSESSEE. THE ASSESSEE HAS GIVEN DETAIL OF SALES, COST, INCOME AND TDS /MADE FROM ALL SIX PARTIES FROM WHOM A.O. HAS HELD THAT NO COMMISSION WAS CHARGED AND THIS DETAIL HAS BEEN REPRODUCED BY THE A.O. IN THE ASSESSMENT ORDER ITSELF AND, THEREFORE, FILING OF COPIES OF BILL AT THIS STAGE DOES NOT SERVE ANY PURPOSE AND IN ANY CASE THE COPIES OF THE BILLS SHOULD HAVE B EEN FILED BEFORE THE A.O. BECAUSE THE ISSUE WAS IN DISPUTE AND A.O. HAD CLEARLY ASKED THE ASSESSEE TO FILE DETAILS RELATING TO SUCH CLIENTS WHERE COMMISSION HAS NOT BEEN CHARGED. THE ASSESSEE HAS GIVEN DETAIL OF TDS MADE FROM THESE PARTIES AND, THEREFORE, ASSESSEE HAD SUFFICIENT OPPORTUNITY TO EXPLAIN IT FURTHER AS TO FOR WHAT THE TDS HAS BEEN MADE AND IF AT ALL ANY COMMISSION HAS BEEN CHARGED, THE SAME SHOULD HAVE BEEN INDICATED. BUT THE ASSESSEE PREFERRED TO KEEP QUIET AND TO TELL THE LEAST TO THE A.O. BU T WHEN THE ISSUE WAS IN DISPUTE AND A.O. HAD CALLED FOR DETAILS FOR SUCH CLIENTS AND THE DETAILS WITH THE REASON FOR NOT CHARGING COMMISSION, THEN IT CANNOT BE SAID THAT A.O. DID NOT ASK FOR THESE DETAILS. AS MENTIONED BY THE A.O. ASSESSEE WAS GIVEN SHOW - C AUSE AS TO WHY COMMISSION ON SUCH PAYMENTS MADE TO JWT SHOULD NOT BE CHARGED AND, THEREFORE, THERE CANNOT BE ANY MORE SPECIFIC REQUIREMENT FROM THE A.O. TO ASK FOR SUCH DETAILS. THEREFORE, THE REQUEST OF THE ASSESSEE TO ADMIT THE ADDITIONAL EVIDENCE AT THI S STAGE IS REJECTED BECAUSE ASSESSEE FAILED TO GIVE ANY REASON AS REQUIRED U/R 46A(1) OF INCOME - TAX RULES, 1962 FOR ADMISSION OF ADDITIONAL EVIDENCE. 2.2 IF THE TOTALITY OF THE FACTS AVAILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL AND THE OBSERVATION MADE IN THE ASSESSMENT ORDER ARE KEPT IN JUXTAPOSITION AND ANALYSED, WE NOTE THAT THE ASSESSEE VIDE LETTER DT. 18.8.2011 FILED APPLICATION U/R.46A OF THE RULES FOR ADMISSION OF ADDITIONAL EVIDENCE BY CLAIMING THAT THE ASSESSING OFFICER NEVE R ASKED FOR THE DETAILS, THEREFORE, THE ASSESSEE WAS UNDER THE IMPRESSION THAT THE CLAIM OF THE ASSESSEE HAS BEEN ACCEPTED. SINCE, THE DETAILS GO TO THE ROOT OF THE MATTER, THEREFORE, WE ADMIT THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE AND DIRECT THE LD . COMMISSIONER OF INCOME TAX (APPEALS) TO EXAMINE THE CLAIM OF THE ASSESSEE AND DECIDE 4 ITA NO. 7690 /MUM/20 11 IN ACCORDANCE WITH LAW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUBSTANTIATE ITS CLAIM. THE APPEAL OF THE A SSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 10 /03/2015. 10 / 0 3 / 2015 SD/ - ( SANJAY ARORA ) SD/ - ( JOGINDER SINGH ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 10 /03/2015 JV, SR. P.S./ . . . / COPY OF THE O RDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A) - , MUMBAI 5. , , / DR, ITAT, MUMBAI 6. / GUAR D FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI .