Sales Emporium (South), Kolkata V. ACIT Circle 26, Kolkata, Kolkata

ITA 809/KOL/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1678 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 25-11-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 21-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS ADDITIONAL
• Assessee Lawyers: V NATH DATTA
• Keywords: Sham transactions
• Section: 143(3); 143(1); 41(2); 201; 147; 131; 148

Judgement Text

ITA NOS. 808 & 809/KOL/2017 ASSESSMENT YEARS:2009-2010 & 2010-2011 & C.O. NO. 21/KOL/2019 (IN ITA NO. 809/KOL/2017) ASSESSMENT YEAR: 2010-2011 SALES EMPORIUM (SOUTH) 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT AND SHRI A.T. VARKEY, JUDICIAL MEMBER I.T.A. NOS. 808 & 809/KOL/2017 ASSESSMENT YEARS: 2009-2010 & 2010-2011 SALES EMPORIUM (SOUTH),............................ ..................................APPELLANT 226, DIAMOND HARBOUR ROAD, KOLKATA-700060 [PAN: AAWFS6903J] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. .......................RESPONDENT CIRCLE-26, KOLKATA, AAYAKAR BHAWAN DAKSHIN, 2, GARIAHAT ROAD (SOUTH), KOLKATA-700068 & C.O. NO. 21/KOL/2019 (ARISING OUT OF I.T.A. NO. 809/KOL/2017) ASSESSMENT YEAR: 2010-2011 SALES EMPORIUM (SOUTH),............................ ..................................CROSS OBJECTOR 226, DIAMOND HARBOUR ROAD, KOLKATA-700060 [PAN: AAWFS6903J] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. .......................RESPONDENT CIRCLE-26(1), KOLKATA, AAYAKAR BHAWAN DAKSHIN, 2, GARIAHAT ROAD (SOUTH), KOLKATA-700068 APPEARANCES BY: SHRI V. NATH DATTA, ADVOCATE, FOR THE ASSESSEE SMT. RANU BISWAS, ADDITIONAL CIT, FOR THE DEPARTMEN T DATE OF CONCLUDING THE HEARING : NOVEMBER 25, 2019 DATE OF PRONOUNCING THE ORDER : DECEMBER 11, 2019 ITA NOS. 808 & 809/KOL/2017 ASSESSMENT YEARS:2009-2010 & 2010-2011 & C.O. NO. 21/KOL/2019 (IN ITA NO. 809/KOL/2017) ASSESSMENT YEAR: 2010-2011 SALES EMPORIUM (SOUTH) 2 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT :- THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIRECT ED AGAINST A COMMON ORDER OF LD. COMMISSIONER OF INCOME TAX (APP EALS)-7, KOLKATA DATED 20.02.2017 FOR ASSESSMENT YEARS 2009-10 AND 2 010-11 AND SINCE THE ISSUES INVOLVED THEREIN ARE COMMON, THE SAME HA VE BEEN HEARD TOGETHER AND ARE BEING DISPOSED OF ALONG WITH THE C ROSS OBJECTION FILED BY THE REVENUE FOR ASSESSMENT YEAR 2010-11 BEING C.O. NO. 21/KOL/2019 FOR THE SAKE OF CONVENIENCE. 2. THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHI P FIRM, WHICH IS ENGAGED IN THE BUSINESS OF DEALING IN ELECTRICAL AN D ELECTRONICS GOODS AND GADGETS. THE RETURNS OF INCOME FOR THE YEARS UNDER CONSIDERATION WERE FILED BY IT ON 29.09.2009 DECLARING TOTAL INCOME OF RS.23,75,351/- AND RS.41,18,748/- FOR ASSESSMENT YEARS 2009-10 AND 201 0-11 RESPECTIVELY. THE RETURN FILED BY THE ASSESSEE FOR ASSESSMENT YEA R 2009-10 WAS INITIALLY PROCESSED BY THE ASSESSING OFFICER UNDER SECTION 143(1) OF THE ACT, WHILE THE ASSESSMENT FOR ASSESSMENT YEAR 2010- 11 WAS COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 26.11.2012 DETERMINING THE TOTAL INCOME AT RS.1,06,09,936/-. THEREAFTER THE IN FORMATION WAS RECEIVED BY THE ASSESSING OFFICER THAT M/S. LATEST PUBLICITY HOUSE TO WHOM ADVERTISEMENT CHARGES OF RS.10,65,000/- AND RS.15,7 5,000/- WERE CLAIMED TO BE PAID BY THE ASSESSEE FOR ASSESSMENT Y EAR 2009-10 AND 2010-11 WAS A SHAM ENTITY AS ITS EXISTENCE WAS NOT TRACEABLE. ON THE BASIS OF THE SAID INFORMATION, ASSESSMENTS FOR BOTH THE YEARS UNDER CONSIDERATION WERE REOPENED BY THE ASSESSING OFFICE R AFTER RECORDING THE REASONS AND NOTICES UNDER SECTION 148 WERE ISSUED B Y HIM TO THE ASSESSEE ON 13.03.2015. IN REPLY, A LETTER WAS FILED BY THE ASSESSEE ON 25.03.2015 STATING THEREIN THAT THE RETURNS ORIGINALLY FILED O N 29.09.2009 AND ITA NOS. 808 & 809/KOL/2017 ASSESSMENT YEARS:2009-2010 & 2010-2011 & C.O. NO. 21/KOL/2019 (IN ITA NO. 809/KOL/2017) ASSESSMENT YEAR: 2010-2011 SALES EMPORIUM (SOUTH) 3 29.09.2010 BE TREATED AS THE RETURNS FILED IN RESPO NSE TO THE NOTICES UNDER SECTION 148 FOR A.Y. 2009-10 AND 2010-11 RESP ECTIVELY. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, SUMMONS UNDER SEC TION 131 WAS ISSUED BY THE ASSESSING OFFICER TO M/S. LATEST PUBL ICITY HOUSE AT THE ADDRESS GIVEN BY THE ASSESSEE TO VERIFY THE GENUINE NESS OF THE RELEVANT TRANSACTIONS THROUGH DEPARTMENTAL INSPECTOR, WHO RE PORTED THAT THE SAID PARTY WAS NOT INEXISTENCE AT THE ADDRESS GIVEN IN T HE CORRESPONDING BILLS. THE ASSESSEE ALSO FAILED TO PRODUCE THE SAID PARTY FOR VERIFICATION BEFORE THE ASSESSING OFFICER AND MADE THE FOLLOWING SUBMIS SIONS IN WRITING BEFORE THE ASSESSING OFFICER IN THIS REGARD:- 1. THAT OUR CLIENT IS EXPRESSING THEIR INABILITY T O PRODUCE THE PARTY OF M/S. LATEST PUBLICITY HOUSE. PROP. SHN PRAKASH AGARWALA. SINCE OUR CLIENT HAS NO BUSINESS TRANSACT IONS AT PRESENT WITH THE SAID PARTY. AS SUCH OUR CLIENT IS NOT AWARE OF THEIR PRESENT WHERE ABOUT. 2. THAT THE ABOVE SAID PARTY WAS ASSESSED TO INCOME -TAX BY THE I.T.O. WARD 35(1), KOLKATA. 3. THAT THE PARTY WAS HAVING HIS BANK A/C. WHERE HE HAS ENCASED THE CHEQUE. ISSUED BY OUR CLIENT. 4. THE I.T. DEPARTMENT HAS ISSUED PAN NO. TO THE SA ID PARTY WITH HIS PHOTO IDENTITY, 5. WE UNDERSTAND FROM THE I.T.O. WARD 35(1) THAT RE FUND VOUCHER WAS ISSUED TO THE SAID PARTY WHO HAS ENCASE D THE REFUND. 6, THE I.T. ACT HAS CONFERRED VIDE POWER TO YOUR HO NOUR. YOUR HONOUR MAY USE THE SAME. 7, THAT OUR CLIENT HAS TRANSACTIONS A FEW YEARS BAC K. THE PARTY MAY HAVE CHANGED THEIR ADDRESS OR MIGHT HAVE SHIFTED ELSEWHERE IN KOLKATA &/ OR IN WEST BENGAL OR OUTSID E WEST BENGAL. 8. THAT OUR CLIENT DOES NOT AGREED ABOUT THE NON-EX ISTENCE OF THE SAID PARTY. THE PARTY MIGHT HAVE AVOIDED APP EARANCE BEFORE THE I.T. AUTHORITIES. ITA NOS. 808 & 809/KOL/2017 ASSESSMENT YEARS:2009-2010 & 2010-2011 & C.O. NO. 21/KOL/2019 (IN ITA NO. 809/KOL/2017) ASSESSMENT YEAR: 2010-2011 SALES EMPORIUM (SOUTH) 4 9. IT WILL NOT BE OUT OF PLACE TO MENTION HERE THAT THE SAID PARTY DEPUTED HIS LAWYER MR. MANOJ BHUDHIA, ADVOCAT E IN THE CASE OF M/S. SALES EMPORIUM (ULG), A SISTER/ASS OCIATE CONCERN WHOM FILED HIS VAKALATNAMA. THAT ONE MR. MA NOJ BUDHIA, ADVOCATE WITH VAKALATNAMA APPEARED BEFORE T HE 1.T. O. WARD 41(2) IN THE CASE OF SALES EMPORIUM (U LG). THIS LEADS TO THE INFERENCE BEING DRAWN THAT SHRI P RAKASH AGARWALA IS NO NON-EXISTENCE PERSON BUT HE WAS VERY MUCH THERE IN KOLKATA CARRYING ON HIS BUSINESS. HE HAS N OT ONLY WORKED FOR SALES EMPORIUM (GARIA) BUT HE HAS ALSO W ORKED FOR MANY OTHER PARTIES. HE FILED BEFORE HIS I.T.O. AUDITED ACCOUNTS DULY AUDITED BY M/ S. JAJOO & ASSOCIATES, CHARTERED ACCOUNTANTS, PROP. SHRI A.K. JAJOO. THE L D. A.O. WARD 35(1) SHOULD HAVE ENQUIRED FROM M/S. JAIOO & ASSOCIATES, C.A. WHO HAVE AUDITED HIS ACCOUNTS. UNDER THE CIRCUMSTANCES, OUR CLIENT DOES NOT ACCEPT THE NON- EXISTENCE OF THE PARTY. HE MIGHT BE AVOIDING THE SE RVICE OF NOTICES &/ OR APPEARANCE BEFORE THE AUTHORITIES &/ OR HE MIGHT HAVE CHANGED THE PLACE OF HIS BUSINESS. 3. THE ABOVE SUBMISSION MADE BY THE ASSESSEE WAS NO T FOUND ACCEPTABLE BY THE ASSESSING OFFICER FOR THE FOLLOWI NG REASONS GIVEN IN THE ASSESSMENT ORDER:- 1. THE ASSESSEE VIDE THIS OFFICE LETTER NO. ACIT/C IR- 26/148/A.Y.2009-10/2C15-16 DATED L19.01.2016 WAS REQUESTED TO PRODUCE THE SAID PARTY I.E. M/S. LATES T PUBLICITY HOUSE PROP. SHRI PRAKASH AGARWALA 9, OLD CHINA BAZAR STREET, 6TH FLOOR, KOLKATA-700001 ON 22.01.20 16 BUT IN RESPONSE TO WHICH THE ASSESSEE FAILED TO PRODUCE THE SAID PARTY. THE ASSESSEE HAS ALREADY BEEN ALREADY INFORMED/INTIMATED THAT THE SAID PARTY IS NON- EXIS TENT. NOW, THE ONUS WAS UPON THE ASSESSEE TO PRODUCE THE SAID PARTY BEFORE THE UNDERSIGNED BUT IT FAILED TO DO SO . THE ASSESSEE WAS EXPRESSING ITS INABILITY TO PRODUCE TH E SAID PARTY AS IT HAS MADE BOGUS TRANSACTION. SUCH PARTY HAS NEVER BEEN ITS EXISTENCE. HENCE, THE CONTENTION OF THE ASSESSEE IS NOT ACCEPTABLE AND HENCE REJECTED. 2. M/S. LATEST PUBLICITY HOUSE PROP. SHRI PRAKASH A GARWALA 9, OLD CHINA BAZAR STREET, 6TH FLOOR, KOLKATA-70000 1 HAS NO TANGIBLE ASSET IN THE BALANCE SHEET THOUGH IT IS CL AIMED THAT HE IS RUNNING A HUGE ADVERTISEMENT BUSINESS AN D AFTER THE MATTER WAS DETECTED BY THE DEPARTMENT THERE IS NO BUSINESS TRANSACTION IN THE ACCOUNTS OF SRI PRAKASH AGARWALA AND HE IS NOT EVEN FILING ANY RETURN. SO, THE ITA NOS. 808 & 809/KOL/2017 ASSESSMENT YEARS:2009-2010 & 2010-2011 & C.O. NO. 21/KOL/2019 (IN ITA NO. 809/KOL/2017) ASSESSMENT YEAR: 2010-2011 SALES EMPORIUM (SOUTH) 5 ASSESSMENT OF SHRI PRAKASH AGARWALA WAS OF THE TYPE OF PROTECTIVE ASSESSMENT BY IT.O. WARD 35(1). THE ASSE SSEE SHOULD KNOW THAT DEMAND MAY BE RECOVERED FROM ONLY EXISTENT ENTITY AND NOT FROM THE PARTY WHICH IS NON - EXISTENT. M/ S. LATEST PUBLICITY HOUSE IS 'SHAM' AN D ALL THE TRANSACTIONS ENTERED WITH THIS PARTY ARE BOGUS. HEN CE, THE CONTENTION OF THE ASSESSEE IS NOT ACCEPTABLE AND HE NCE REJECTED. 3. FROM THE KYC RECEIVED FROM BANK IT IS FOUND THAT WHILE OPENING BANK ACCOUNT, THE IDENTITY WAS GIVEN COPY O F 'PAN CARD' AND FOR ADDRESS PROOF 'AN OLD BANK STATEMENT' . SO, THE ASSESSEE IS FREQUENTLY CHANGING THE BANK ACCOUN TS AFTER COMPLETION OF SHAM TRANSACTIONS IN A BANK ACCOUNT A ND CLOSE IT TO OPEN A NEW BANK ACCOUNT. IT IS ALSO FOU ND FROM THE BANK ACCOUNTS THAT NATURE OF TRANSACTION IN BAN K A/C'S IS DEPOSIT BY CHEQUE AND IMMEDIATE WITHDRAWAL OF SI MILAR AMOUNT BY CHEQUES. IT APPEARS THAT THE RECEIPTS IN THE BANK ACCOUNTS ARE EXPENSES DEBITED BY VARIOUS PARTIES- T HE AMOUNTS CREDITED IN THE BANK ACCOUNT OF SRI PRAKASH AGARWAL WERE FORTHWITH TRANSFERRED TO THE ACCOUNTS OF THE VARIOUS COMPANIES. ALL THESE EXPENSES ARE NOT GENUI NE EXPENSES. THERE ARE PLETHORA OF CASES TO SHOW THAT PAYMENTS MADE BY CHEQUES ARE NOT ALLOWED AS TRUE EXPENDITURE. SO, MERE THE FACT THAT THE PARTY HAS E NCASED YOUR CHEQUE, DOES NOT PROVE THAT THE EXPENSES ARE G ENUINE. HAVING, BANK A/C AND ENCASHMENT OF CHEQUE DOES NOT MEAN THAT TRANSACTIONS ARE GENUINE. HENCE, THE CONTENTIO N OF THE ASSESSEE IS NOT ACCEPTABLE AND HENCE REJECTED. 4. MERELY ISSUING OF PAN CARD BY I.T. DEPARTMENT IS NOT PROOF OF ESTABLISHING IDENTITY OF THE PARTY AND ONU S LIES ON THE ASSESSEE TO PROOF THAT THE SAID PARTY IS NOT A FICTITIOUS ENTITY. IN THIS REGARD, THE HON'BLE SUPREME COURT I N THE CASE OF NAVODAYA CASTLE PVT. LTD. V/S COMMISSIONER OF INCOME TAX [SPECIAL LEAVE TO APPEAL NO. C(C374 OF 2 015) DATED 16.01.2015 HAS UPHELD THE ORDER OF HON'BLE HI GH COURT OF DELHI IN I.T.A. NO. 320 OF 2012 DATED 25.0 8.2014 THAT MERELY POSSESSION OF PAN CARD ISSUED BY INCOME TAX DEPARTMENT IS NOT PROOF OF ESTABLISHING IDENTITY OF THE PARTY AND ONUS LIES ON THE ASSESSEE TO PROOF THAT T HE SAID PARTY IS NOT A FICTITIOUS ENTITY. 5. THERE IS NOT ANY EXISTENCE OF ANY ADVERTISING AG ENCY NAMELY M/S. LATEST PUBLICITY PROP. SHRI PRAKASH AGA RWALA. FROM VARIOUS SOURCES LIKE KMC AND OTHERS, IT HAS BE EN PROVED THAT M/S. LATEST PUBLICITY IS 'SHAM'. HENCE, ENCASHMENT OF REFUND VOUCHERS DOES NOT PROOF THAT Y OUR ITA NOS. 808 & 809/KOL/2017 ASSESSMENT YEARS:2009-2010 & 2010-2011 & C.O. NO. 21/KOL/2019 (IN ITA NO. 809/KOL/2017) ASSESSMENT YEAR: 2010-2011 SALES EMPORIUM (SOUTH) 6 TRANSACTION IS GENUINE. HENCE, THE CONTENTION OF TH E ASSESSEE IS NOT ACCEPTABLE AND HENCE REJECTED. 6. THE ASSESSEE VIDE THIS OFFICE LETTER NO. ACIT/CI R- 26/148/A.Y.2009-L0/20L5-16 DATED 19.01.2016 HAS ALR EADY INFORMED THAT M/S. LATEST PUBLICITY HOUSE PROP. SHR I PRAKASH AGARWALA IS NON-EXISTENT AND FAKE. IT WAS T HE ONUS OF THE ASSESSEE TO PRODUCE THE PARTY BUT THE ASSESS EE FAILED TO DISCHARGE ITS ONUS. THE I.T. DEPARTMENT HAS ALRE ADY CONFERRED THAT THE SAID PARTY IS 'NON-EXISTENT'. HE NCE, THE CONTENTION OF THE ASSESSEE IS NOT ACCEPTABLE AND HE NCE REJECTED. 7. ONUS TO STATE THE WHEREABOUTS OF THE PARTY WAS O N THE ASSESSEE. BUT, THE ASSESSEE FAILED TO DISCHARGE ITS ONUS. HENCE, TRANSACTIONS MADE WITH THE SAID PARTY ARE TR EATED AS BOGUS AND THE CONTENTION OF THE ASSESSEE IS NOT ACC EPTABLE AND HENCE REJECTED. 8. THE PERSONS ASSOCIATED WITH THE ADVERTISEMENT MA RKET ALSO INFORMED THAT THERE IS NO EXISTENCE OF ANY ADV ERTISING AGENCY NAMELY M/S. LATEST PUBLICITY HOUSE FROM THE RECORDS OF KOLKATA MUNICIPAL CORPORATION, IT IS ALS O FOUND THAT NO KMC TAX WAS EVER BEEN PAID/ DEPOSITED BY M/ S. LATEST PUBLICITY HOUSE. INCOME TAX DEPARTMENT HAS M ADE ENQUIRIES AND IT IS REVEALED THAT THE SAID PARTY HA S NEVER BEEN ANY EXISTENCE. HENCE, IT IS CONCLUDED THAT EXI STENCE AND ACTIVITIES OF M/ S. LATEST PUBLICITY ARE FAKE. HENCE, THE CONTENTION OF THE ASSESSEE IS NOT ACCEPTABLE AND HE NCE REJECTED. 9. AS CLAIMED BY THE ASSESSEE THAT THE SAID PARTY H AS DEPUTED HIS LAWYER MR. MANOJ BHUDHIA. IN THIS REGAR D, THE ASSESSEE HAS BEEN INFORMED THAT IN THE SAID VAKALAT NAMA, NO ADDRESS WAS PROVIDED. ON REQUEST, THE A/R MENTIO NED HIS ADDRESS AS 10A, HOSPITAL STREET, KOLKATA-700012. THEREAFTER HE ALSO VANISHED. THE ADVOCATE WAS ALSO NOT TRACEABLE AT THAT ADDRESS AND THE LETTER WAS RETURN ED BY POST AS 'NOT KNOWN'. AT THE TIME OF ASSESSMENT PROC EEDINGS IN THE CASE OF SHRI PRAKASH AGARWALA IT WAS REVEALE D AND PROVED THAT THE SAID PARTY IS 'FAKE' AND. ALL THE TRANSACTIONS ENTERED WITH THE SAID PARTIES ARE BOGU S. HENCE, THE CONTENTION OF THE ASSESSEE IS NOT ACCEPT ABLE AND HENCE REJECTED. 4. FOR THE REASONS GIVEN ABOVE, THE ADVERTISEMENT C HARGES OF RS.10,65,000/- AND RS.15,75,000/- CLAIMED TO BE PAI D BY THE ASSESSEE TO ITA NOS. 808 & 809/KOL/2017 ASSESSMENT YEARS:2009-2010 & 2010-2011 & C.O. NO. 21/KOL/2019 (IN ITA NO. 809/KOL/2017) ASSESSMENT YEAR: 2010-2011 SALES EMPORIUM (SOUTH) 7 M/S. LATEST PUBLICITY HOUSE WERE TREATED AS BOGUS B Y THE ASSESSING OFFICER AND ADDITIONS TO THAT EXTENT WERE MADE BY H IM TO THE TOTAL INCOME OF THE ASSESSEE FOR A.YS. 2009-10 AND 2010-11 IN TH E ASSESSMENTS COMPLETED UNDER SECTION 147/143(3) OF THE ACT VIDE ORDERS DATED 28.01.2016. 5. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 147 READ WITH SECTION 143(3) FOR BOTH THE YEARS UNDER C ONSIDERATION, APPEALS WERE PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A PPEALS) CHALLENGING, INTER ALIA, THE ADDITIONS OF RS.10,65,000/- AND RS. 15,75,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DISALLOWANCE OF ADV ERTISEMENT CHARGES PAID TO M/S. LATEST PUBLICITY HOUSE. HOWEVER, KEEPI NG IN VIEW THE FAILURE OF THE ASSESSEE TO PRODUCE ANY FURTHER EVIDENCE TO CORROBORATE ITS CLAIM ON ACCOUNT OF ADVERTISEMENT CHARGES PAID TO M/S. LA TEST PUBLICITY HOUSE, THE LD. CIT(APPEALS) DISMISSED THE CASE OF THE ASSE SSEE ON THIS ISSUE AND CONFIRMED THE DISALLOWANCE MADE BY THE ASSESSING OF FICER FOR BOTH THE YEARS UNDER CONSIDERATION. AGGRIEVED BY THE ORDER O F THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THESE APPE ALS BEFORE THE TRIBUNAL. 6. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, A SIMILAR ISSUE RELATING TO THE DISAL LOWANCE MADE ON ACCOUNT OF ADVERTISEMENT CHARGES PAID TO M/S. LATEST PUBLIC ITY HOUSE WAS ALSO INVOLVED IN THE CASE OF ASSESSEES SISTER CONCERN M /S. SALES EMPORIUM (ULG) AND VIDE ITS ORDER DATED JANUARY 10, 2018 PAS SED IN ITA NO. 332/KOL/2017, THE SMC BENCH OF THIS TRIBUNAL DECI DED THE SAID ISSUE IN FAVOUR OF THE ASSESSEE AND DELETED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ADVERTISEMENT CHARG ES PAID TO M/S. LATEST PUBLICITY HOUSE. HE HAS ALSO PLACED A COPY OF THE S AID ORDER AND PERUSAL ITA NOS. 808 & 809/KOL/2017 ASSESSMENT YEARS:2009-2010 & 2010-2011 & C.O. NO. 21/KOL/2019 (IN ITA NO. 809/KOL/2017) ASSESSMENT YEAR: 2010-2011 SALES EMPORIUM (SOUTH) 8 OF THE SAME SHOWS THAT A SIMILAR ISSUE WAS DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE FOR THE FOLLOWING REASONS GI VEN IN PARAGRAPH NO. 6:- I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND A LSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT COPIES OF BILLS RAISED BY LATEST PUBL ICITY HOUSE FOR HOARDING CHARGES (COPIES AT PAGE NO 1, 2 & 3 OF THE ASSESSEE'S PAPER BOOK NO. 3) WERE FILED BY THE ASSE SSEE BEFORE THE AUTHORITIES BELOW. AS CLAIMED BY THE ASSESSEE B EFORE THE AUTHORITIES BELOW AS WELL AS BEFORE THE TRIBUNAL, P AYMENTS AGAINST THE SAID BILLS WERE MADE BY ACCOUNT PAYEE C HEQUES AFTER DEDUCTION OF TAX AT SOURCE. A CONFIRMATION LE TTER OF M/S. LATEST PUBLICITY HOUSE (COPY AT PAGE 44 OF PAPER BO OK NO 1) WAS ALSO FILED BY THE ASSESSEE BEFORE THE A.D. GIVI NG PERMANENT ACCOUNT NUMBER OF THE SAID PARTY AS WELL AS OTHER INCOME TAX PARTICULARS INCLUDING THE COPY OF ACKNOWLEDGEMENT OF IT RETURN. FOR THE YEAR UNDER CONSIDERATION. HAVING REGARD TO THIS DOCUMENTARY EV IDENCE PLACED ON RECORD, I FIND MERIT IN THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE CLAIM OF THE ASSE SSEE FOR DEDUCTION OF AT LEAST THE HOARDING CHARGES OF RS. 1 1,25,000/- PAID TO M/S. LATEST PUBLICITY HOUSE WAS DULY SUPPOR TED AND SUBSTANTIATED BY THE RELEVANT DOCUMENTARY EVIDENCE AND THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN DISALLOWING THE SAME MERELY ON THE GROUND THAT THE SAME WAS NOT VERIFIAB LE IN THE ABSENCE OF CORRECT ADDRESS OF THE SAID PARTY GIVEN BY THE ASSESSEE. IN MY OPINION, WHEN THE PERMANENT ACCOUNT NUMBER AS WELL AS OTHER PARTICULARS OF THE INCOME TAX ASSE SSMENT OF THE SAID PARTY WERE PLACED ON RECORD BEFORE THE A.D ., HE COULD HAVE EASILY VERIFIED THE CLAIM OF THE ASSESSEE DIRE CTLY WITH THE SAID PARTY INSTEAD OF HARPING ON THE FAILURE OF THE ASSESSEE TO GIVE THE CORRECT ADDRESS OR PRODUCE THE SAID PARTY FOR VERIFICATION. 7. AT THE TIME OF HEARING BEFORE US, NO CASE HAS BE EN MADE OUT BY THE LD. D.R. TO POINT OUT ANY DISTINCTION IN THE MATERI AL FACTS INVOLVED IN THE PRESENT CASE AS COMPARED TO THE CASE OF M/S. SALES EMPORIUM (ULG) DECIDED BY THIS TRIBUNAL VIDE ITS ORDER DATED JANUA RY 10, 2018. WE, THEREFORE, RESPECTFULLY FOLLOW THE SAID ORDER OF TH E TRIBUNAL PASSED IN THE CASE OF THE SISTER CONCERN OF THE ASSESSEE ON A SIM ILAR ISSUE INVOLVING SIMILAR FACTS AND DELETE THE DISALLOWANCE MADE BY T HE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPEALS) ON ACCOUNT OF ADVERTISEMENT ITA NOS. 808 & 809/KOL/2017 ASSESSMENT YEARS:2009-2010 & 2010-2011 & C.O. NO. 21/KOL/2019 (IN ITA NO. 809/KOL/2017) ASSESSMENT YEAR: 2010-2011 SALES EMPORIUM (SOUTH) 9 CHARGES PAID TO M/S. LATEST PUBLICITY HOUSE FOR BOT H THE YEARS UNDER CONSIDERATION. 8. AS A RESULT OF THE AFORESAID DECISION RENDERED B Y US DELETING THE DISALLOWANCE MADE ON ACCOUNT OF ADVERTISEMENT CHARG ES PAID TO M/S. LATEST PUBLICITY HOUSE FOR BOTH THE YEARS UNDER CON SIDERATION, THE OTHER ISSUES RAISED BY THE ASSESSEE IN ITS APPEALS AS WEL L AS BY THE REVENUE IN ITS CROSS OBJECTION RELATING TO THE VALIDITY OF THE ASSESSMENTS MADE BY THE ASSESSING OFFICER UNDER SECTION 147 READ WITH SECTI ON 143(3) HAVE BECOME INFRUCTUOUS OR ACADEMIC AND WE DO NOT CONSID ER IT NECESSARY OR EXPEDIENT TO DECIDE THE SAME. 9. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED, WHILE THE CROSS OBJECTION OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 11, 2019. SD/- SD/- (A.T. VARKEY) (P. M. JAGTAP) JUDICIAL MEMBER VICE-PRESIDENT) KOLKATA, THE 11 TH DAY OF DECEMBER, 2019 COPIES TO : (1) M/S. SALES EMPORIUM (SOUTH), 226, DIAMOND HARBOUR ROAD, KOLKATA-700060 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-26, KOLKATA, AAYAKAR BHAWAN DAKSHIN, 2, GARIAHAT ROAD (SOUTH), KOLKATA-700068 (3) COMMISSIONER OF INCOME TAX (APPEALS)-7, KOLKAT A; (4) COMMISSIONER OF INCOME TAX, KOLKATA- , K OLKATA; (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.