Universal Textile Mills , Bangalore V. Deputy Commissioner of Income Tax Circle-4(3)(1), Bangalore

ITA 829/BANG/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7205 (ITAT-BANGALORE)
• Duration Of Justice: 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-11-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 12-04-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M K BIJU
• Assessee Lawyers: RAJKAMAL GANERIWALA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, B E NGAL U R U BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO. 829/ BANG/ 201 7 (ASSESSMENT YEAR : 2012 - 13) M/S.UNIVERSAL TEXTILE MILLS, # 44, GUDAHATTI MAIN ROAD , NERALUR POST, ATTIBELE, BENGALURU. PAN:AAAFU 7276 P VS. APPELLANT DEPUTY COMMISSIONER OF INCOME - TAX, CIRCLE - 4(3)(1), BENGALURU. RESPONDENT APPELLANT BY : SHRI RAJKAMAL GANERIWALA, CA RESPONDENT BY : SHRI M.K.BIJU, JCIT (DR) DATE OF HEARING : 06/11/2017 DATE OF PRONOUNCEMENT : 17 /11/2017 O R D E R PER I NTURI RAMA RAO, AM : THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) , BENGALURU - 2, BENGALURU, [ CIT(A)] DATED 07/01/2017 FOR THE ASSESSMENT YEAR 2012 - 13. 2. THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APPEAL: ITA NO . 829 /BANG/201 7 PAGE 2 OF 4 2. TO DELETE THE CONSEQUENTIAL LEVY OF INTEREST ON TAX AMOUNT. 3. BRIEFLY FACTS OF THE CASE ARE THAT THE ASSESSEE IS A P ARTNERSHIP FIRM. IT IS ENGAGED IN THE BUSINESS OF EXPORT OF SILK FABRICS. RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012 - 13 WAS FILED ON 28/09/2012 DECLARING INCOME OF RS.4,97,66,800/ - . AGAINST SAID RETURN OF INCOME, ITA NO . 829 /BANG/201 7 PAGE 3 OF 4 THE ASSESSMENT WAS COMPLETED AT TOTAL INCOME OF RS.5,50,79,235/ - VIDE ORDER DATED 26/03/2015 PASSED U/S 143(3) OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT]. WHILE DOING SO, THE ASSESSING OFFICER (AO) MADE ADDITION ON ACCOUNT OF OVERSEAS COMMISSION PAID OF RS.43 ,83,206/ - AND MADE DISALLOWANCE OF 20% OF TRAVELLING EXPENDITURE OF RS.9,31,232/ - . THE AO DISALLOWED OVERSEAS COMMISSION PAID ON THE GROUND THAT NO TDS WAS MADE. IN RESPECT OF FOREIGN TRAVEL EXPENDITURE, AO HELD THAT THE PARTNERS OF THE ASSESSEE UNDERTOO K FOREIGN TRAVEL, T HEREFORE, HE PRESUMED THAT 20% OF THE EXPENDITURE SHOULD BE IN THE NATURE OF PERSONAL EXPENDITURE. 4. ON APPEAL BEFORE THE CIT(A), THE CIT(A) GRANTED RELIEF IN RESPECT OF DISALLOWANCE OF COMMISSION PAID TO FOREIGN PARTIES. HOWEVE R, CONFIRMED ADDITION MADE ON ACCOUNT OF FOREIGN TRAVEL. THE CIT(A), AFTER REFERRING TO DESCRIPTION GIVEN IN THE VOUCHERS DATED 14 TH JUNE 2011 CONCLUDED THAT THE EXPENDITURE WAS ALSO INCURRED TOWARDS FAMILY MEMBERS OF THE FIRM. THEREFORE, HE CONFIRMED TH E ENTIRE DISALLOWANCE. BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 5. WE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE, THE AO HAS DISALLOWED 20% OF TRAVEL EXPENDITURE HOLDING TO BE IN THE NATURE OF PERSONAL EXPENDITURE OF THE PARTNERS OF THE ASSESSEE. THIS IS DONE MERELY BASED ON SURMISES AND CONJECTURES. THE AO HAD NOT REFERRED TO ANY EVIDENCE. HOWEVER, THE CIT(A) HAD REFERRED TO ONE OF THE VOUCHERS WHEREIN EXPENDITURE OF RS.3,18,176/ - WAS INCURR ED AND IT WAS STATED IN THE NARRATION OF THE EXPENDITURE THAT THE AMOUNT WAS ALSO INCURRED TOWARDS PARTNERS SHRI ADITYA JAIPURA AND ITA NO . 829 /BANG/201 7 PAGE 4 OF 4 ONE MS.PJ. IT IS NOT KNOWN WHO THAT PERSON MS.PJ IS . EVEN ASSUMING THAT SHE IS NOT THE PARTNER OF THE FIRM , ONLY 50% OF RS .3,18,176/ - CAN BE CONFIRMED AND THE BALANCE DISALLOW ED IN ABSENCE OF ANY EVIDENCE ON RECORD SUGGESTING PERSONAL NATURE CANNOT BE UPHELD. THEREFORE, WE DIRECT THE AO TO DISALLOW 50% OF RS.3,18,176/ - AND DELETE THE BALANCE ADDITION. 6. IN THE RESULT, TH E APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH NOVEMBER , 201 7 SD/ - SD/ - ( LALIET KUMAR ) (INTURI RAMA RAO) JUDICIAL MEM BER ACCOUNTANT MEMBER PLACE : B EN GAL URU D A T E : 17 / 11 /2017 SRINIVASULU, SPS COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME - TAX APPELLATE TRIBUNAL BANGALORE