RIDDHI SIDDHI HOMES, NAVI MUMBAI V. JOINT CIT PANEVEL, NAVI MUMBAI

ITA 7703/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3277 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 16-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHARAT ANDHALE L D
• Keywords: TDS
• Section: 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, VP AND HONBLE SHRI MANOJ KUM AR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) 1. ./ I.T.A. NO. 7703 /MUM/ 2019 ( / ASSESSMENT YEAR: 2011 - 12 ) RIDDHI SIDDHI HOMES SHOP 70, AGRAWAL TRADE CENTRE PLOT NO. 62, GF , SECTOR 11, CBD BELAPUR, NAVI MUMBAI - 400 614 / VS. J OINT CIT ROOM NO. 307, 3 RD FLOOR, TOWER NO. 6, VASHI RAILWAY STATION COMPLEX, VASHI, NAVI MUMBAI - 400 703 ./ ./ PAN/GIR NO. A A IFR - 3312 - G ( / APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : NONE REVENUE BY : SHRI BHA RAT ANDHALE , LD. SR. DR / DATE OF HEARING : 01/06 /2021 / DATE OF PRONOUNCEMENT : 01/06/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY IN SHORT] 2 0 11 - 12 CONTEST THE ORDER OF L D. COMMISSIONER OF INCOME TAX (APPEALS) - 26 , MUMBAI [IN SHORT CIT(A) ] DATED 04/10/2019 WHICH HAS CONFIRMED DISALLOWANCE OF RS.5 LACS ON ACCOUNT OF COMMISSION PAID BY THE ASSESSEE. 2 2. THE REGISTRY HAS NOTED A DELAY OF 7 DAYS IN THE APPEAL WHICH WE ARE INCLINED TO CONDONE SINCE THE DELAY IS ONLY MINOR ONE. ACCORDINGLY, THE APPEAL IS ADMITTED AND WE PROCEED FOR ADJUDICATION OF THE SAME ON MERITS. 3 . THOUGH NONE APPEARED FOR ASSESSEE, HOWEVER, MATERIAL ON RECORD WAS SUFFICIENT FO R DISPOSAL OF THE APPEAL. THE LD. DR PLEADED FOR DISMISSAL OF THE APPEAL. 4 . THE MATERIAL FACTS ARE THAT THE ASSESSEE BEING RESIDENT FIRM STATED TO BE ENGAGED AS BUILDER & DEVELOPER WAS ASSESSED FOR THE YEAR UNDER CONSIDERATION U/S 143(3) ON 20/03/2014. IT TRANSPIRED THAT THE ASSESSEE PAID CERTAIN COMMISSION DURING THE YEAR AND CLAIMED DEDUCTION OF THE SAME. THE SUBJECT MATTER OF APPEAL IS COMMISSION OF RS.2 LACS AS PAID TO M/S MEETA ENTERPRISES AND ANOTHER COMMISSION OF RS.3 LACS AS PAID TO M/S MONTY TRA DING CO. THOUGH THE ASSESSEE SUBMITTED THAT DUE TDS WAS DEDUCTED, HOWEVER, IT FAILED TO PRODUCE THESE PARTIES FOR CONFIRMATION. ACCORDINGLY, THE COMMISSION PAYMENTS WERE DISALLOWED. 5 . BEFORE LD. CIT(A), THE ASSESSEE DREW ATTENTION TO THE FACT THAT IT HAD SUPPLIED NAME AND ADDRESS OF THE PAYEES, DETAILS OF COMMISSION, THEIR RESPECTIVE INCOME TAX RETURNS, EVIDENCE OF PAYMENT THROUGH BANKING CHANNELS AFTER DEDUCTION OF TAX AT SOURCE, DETAILS OF SERVICES RENDERED BY THESE PARTIES ETC. THE DETAILS FURNISHED BY THE ASSESSEE WERE SUBJECTED TO REMAND PROCEEDINGS. 6. THE ASSESSEE EXPLAINED THAT THE CORRECT NAME OF FIRST ENTITY WAS M/S MEETA ELECTRICALS AND COMMISSION WAS PAID TO THIS ENTITY FOR SERVICES RENDERED ON SALE OF FLAT NO.A - 204. SIMILARLY, THE COMMISSION OF RS.3 LACS WAS PAID TO M/S MONTY TRADING CO. FOR SALE OF FLAT NO.B - 704. THE PAYMENT WAS STATED TO BE MADE THROUGH BANKING CHANNELS AND DUE TAX 3 WAS DEDUCTED AT SOURCE. THE ASSESSEE FURNISHED PAN AND THEIR RESPECTIVE INCOME TAX RETURNS. IN THE SAID BACKGRO UND, IT WAS SUBMITTED THAT INITIAL ONUS WAS DISCHARGED AND THE EXPENDITURE COULD NOT BE DISALLOWED. 7. THE LD. CIT(A), CONSIDERING THE FACT THAT THE ASSESSEE COULD NOT PRODUCE ANY OF THE ABOVE PARTY AND IN VIEW OF THE FACT THAT NO EVIDENCE WITH REGARD TO WORK FOR WHICH COMMISSION WAS PAID WAS NOT FILED, CHOSE TO CONFIRM THE DISALLOWANCE. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 8. AFTER GOING THROUGH ASSESSEES DOCUMENTARY EVIDENCES AS ENUMERATED IN PRECEDING PARA - 6, WE FIND THAT THE ASSESSE E HAD FURNISHED COMPLETE DETAILS I.E. NAME, ADDRESS & PAN OF PAYEES ALONG WITH THEIR INCOME TAX RETURNS. THE PAYMENT TO THE TWO PAYEE S WAS THROUGH BANKING CHANNELS. IT IS UNDISPUTED FACT THAT DUE TAX WAS DEDUCTED AT SOURCE WHILE MAKING THESE PAYMENTS. THE DETAILS OF FLATS AGAINST WHICH COMMISSION WAS PAID, WAS ALSO PROVIDED. ACCORDINGLY, THE ASSESSEE, IN OUR CONSIDERED OPINION, HAD DISCHARGED THE INITIAL ONUS OF SUBSTANTIATING THE EXPENDITURE. MERELY BECAUSE THE ASSESSE COULD NOT PRODUCE THE PAYEES DURING A SSESSMENT PROCEEDINGS, THE SAME COULD NOT BE THE SOLE GROUND TO CONFIRM THE DISALLOWANCE. THEREFORE, WE DIRECT LD. AO TO DELETE THE DISALLOWANCE OF RS.5 LACS. 9. THE APPEAL STAND ALLOWED IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED ON 01 ST JUNE, 2021. SD/ - SD/ - (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI; DATED : 01/06/2021 SR.PS, JAISY VARGHESE 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPO NDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.