I.T.O Wd - 30(2),kolkata., Kolkata V. Shri Manoj Seth, Kolkata

ITA 843/KOL/2013

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3355 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 17-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMITABHA CHOUDHURI
• Assessee Lawyers: K M ROY
• Section: 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 8 43 / KOL / 2013 ASSESSMENT YEAR :2009-10 INCOME TAX OFFICER, WARD-30(2), AAYAKARBHAVANDAKSHIN, 2, GARIAHUT ROAD, SOUTH, 4 TH FLOOR, KOLKATA 700 068 V/S . SHRI MANOJ SETH 30B, PRIYANATHMULLICK ROAD, 1 ST FLOOR, KOLKATA 700 026 [ PAN NO.ARWPS 6259 G ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI AMITABHA CHOUDHURI, DR /BY RESPONDENT SHRI K.M. ROY, FCA /DATE OF HEARING 30-11-2015 /DATE OF PRONOUNCEMENT 20-01-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE REVENUE IS ARISING OUT OF ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-XIV, KOLKATA IN APPEAL NO.791/ CIT(A)-XIV/KOL/1-12 DATED 24.01.2013. ASSESSMENT WAS FRAMED BY JCIT, RA NGE-30, KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT) VIDE HIS ORDER DATED 29.12.2011 FOR ASSESSMENT YEAR 2009 -10. 2. SOLITARY GROUND RAISED BY REVENUE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN DELETING THE DISALLOWANCE OF COMMISSION FO R AN AMOUNT OF ITA NO.843/KOL/2013 A.Y. 2009-10 ITO WD-30(2) KOL. V. SHMANOJ SETH PAGE 2 29,52,726/- MADE BY ASSESSING OFFICER ON ACCOUNT O F TWIN GROUNDS, FIRSTLY NON FURNISHING OF EVIDENCE OF SERVICE HAVING BEEN R ENDERED AND SECONDLY TDS DEDUCTION AND PAYMENT IN GOVERNMENTS ACCOUNTS WERE MADE NOT WITHIN THE STIPULATED TIME. 3. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION. DURING THE YEAR ASSESSEE HAS PAID COMMISSION OF 29,52,726/- TO M/S VIDHATA AGENCIES PVT. LTD. (MVAP L FOR SHORT) AND THIS COMMISSION EXPENSE WAS INCLUSIVE OF SERVICE TAX OF 3,24,811/-. THE PAYMENT FOR COMMISSION WAS DULY MAD E THROUGH BANKING CHANNEL. DURING THE ASSESSMENT PROCEEDINGS, AO FOUN D THAT TDS WAS DEDUCTED @ .09% ON THE COMMISSION AMOUNT AS PER THE CERTIFICATE SUBMITTED BY THE PARTY. HOWEVER THE TDS WAS NOT DEDUCTED AND PAID IN GOVT. ACCOUNT WITHIN PRESCRIBED TIME. THEREFORE THE AO DISALLOWED THE CLAIM U/S. 40(A)(IA) OF THE ACT. 3.1 HOWEVER, AO ALSO OBSERVED THAT THE COMMISSION E XPENSE IS ALSO NOT ALLOWABLE ON THE BASIS OF MERITS AS THE RATE FOR CO MMISSION PAID TO THE PARTY IS COMING 7 TO 8% FOR GETTING THE WORK. WHEREAS THE MA RGIN OF PROFIT FOR THE ASSESSEE IN HIS BUSINESS IS JUST @ 4%.DURING THE YE AR THE ASSESSEE CLAIMED TO HAVE AVAILED SERVICES OF MVAPL FOR GETTING SEVER AL CONTRACTS FROM VARIOUS PARTIES BUT WHEN AO ISSUED NOTICE UNDER SECTION 133 (6) OF THE ACT, NO PARTY CONFIRMED THE SAME BUT DENIED THE PRESENCE OF ANY M IDDLEMAN IN THE PROCESS OF AWARDING THE CONTRACT. THE AO ASKED FOR JUSTIFIC ATION OF COMMISSION PAID 29,52,726/- TO MVAPL. THE ASSESSEE EXPLAINED THAT C OMMISSION WAS PAID TO MVAPL AGAINST SERVICES AVAILED FROM THE PARTY. THES E SERVICES INTER ALIA INCLUDE PROCUREMENT OF JOB, FOLLOWED UP FOR THE PAY MENTS, SUPERVISION, ADHERENCE TO TIME SCHEDULED, QUALITY CONTROL, SUPPL Y CHANGE MANAGEMENT ETC. THE ASSESSEE ALSO SUBMITTED THAT THE WORK IS BEING DONE MORE ON SUBCONTRACT BASIS BUT IN COMMERCIAL TERMS IT HAS BEEN SAID AS C OMMISSION. THE ASSESSEE ALSO SUBMITTED A LIST OF COMPANIES WHICH AWARDED TH E CONTRACT THROUGH THE ITA NO.843/KOL/2013 A.Y. 2009-10 ITO WD-30(2) KOL. V. SHMANOJ SETH PAGE 3 MVAPL. THE RELEVANT DETAILS ALONG WITH THE COMMISSI ON AMOUNT ARE REPRODUCED BELOW:- NAME AMOUNT PAID (RS) RATE OF TDS (%) TDS AMOUNT (RS) BENGAL SHELTER HOUSING DEVELOPMENT LTD. 67,14,000/- 7.5% 5,65,789/- DLF LAING O ROURKE INDIA LTD 93,15,000/- 8% 8,37,306/- DLF HILTON HOTEL LTD 22,25,000/- 8% 2,00,001/- DLF LAING O ROUKE INDIA LTD 43,57,000/- 8% 3,91,642/- DLF LAING O ROUKE INDIA LTD 47,17,000/- 8% 4,24,002/- SHAPOORJI PALOONJI& COMPANY LTD 38,16,000/- 7% 3,00,136/- S.S. CIVIL CONSTRUCTION PVT. LTD 15,75,000/- 7.5% 1,32,726/- M.CON ENGINEERING SYSTEMS 15,00,000/- 6% 1,01,124/- 3.2 THE REPLY RECEIVED FROM THE COMPANIES IN PURSU ANCE TO NOTICE ISSUED UNDER SECTION 133(6) OF THE ACT BY THE AO CONFRONTE D TO THE ASSESSEE. THE ASSESSEE SUBMITTED THAT IT IS QUITE POSSIBLE THAT A BOVE COMPANIES ARE NOT KNOWN MVAPL DIRECTLY AS THE AGENT NEED NOT TO VISIT PERSONALLY TO THE COMPANIES. IT WAS ALSO SUBMITTED BY ASSESSEE THAT T O PROTECT GOODWILL AND BUSINESS INTEGRITY AGENT WAS NOT ALLOWED TO VISIT T HE CUSTOMER PERSONALLY. HOWEVER, THE PAYMENTS TO MVAPL WERE MADE AFTER DEDU CTING TDS TOGETHER WITH SERVICE TAX ON THE COMMISSION AMOUNT. HOWEVER, AO DISREGARDED THE CLAIM OF ASSESSEE BY OBSERVING FOLLOWING POINTS:- A) ASSESSEE IS IN CONSTRUCTION BUSINESS ACTIVITY SI NCE MORE THAN 35 YEARS AND HAVING SPECIALIZED KNOWLEDGE THEREFORE THERE WA S NO NEED TO HAVE ANY COMMISSION AGENT; B) IN EARLIER YEAR NO COMMISSION WAS PAID BY ASSESS EE FOR PROCURING OF CONTRACTS; C) THE PARTY TO WHOM SUCH COMMISSION WAS PAID KNOWN TO ASSESSEE AND HE HAS DONE WORK PRIOR TO PREVIOUS FOR THE ASSESSEE ; D) IN THE SUBSEQUENT YEAR, ASSESSEE HAS NOT PAID AN Y COMMISSION TO ANY PARTY; ITA NO.843/KOL/2013 A.Y. 2009-10 ITO WD-30(2) KOL. V. SHMANOJ SETH PAGE 4 E) M/S VIDHATA AGENCY PVT. LTD. HAS NOT PROVIDED AN Y SERVICE EITHER IN PAST OR IN THE SUBSEQUENT YEAR TO ANY PARTY OTHER THAN A SSESSEE IN RELATION TO THE ASSESSMENT YEAR UNDER CONSIDERATION; F) NONE OF DIRECTORS OR THE EMPLOYEES OF MVAPL HAS ANY TYPE OF EXPERTISE OR ANY KNOWLEDGE IN THE FIELD OF CONSTRUCTION ACTIV ITY. G) MVAPL HAS SET OFF THE COMMISSION INCOME AGAINST OTHER EXPENSE AND NOT PAID TAX ON THE COMMISSION INCOME; H) CONTRACT FOR CONSTRUCTION IS NORMALLY GIVEN ON T HE BASIS OF EXPERT KNOWLEDGE OF THE PARTY AND NOT THROUGH COMMISSION A GENT; I) NO EVIDENCE OF ANY SERVICE HAVING BEEN RENDERED HAS BEEN FURNISHED. HAVING AN AGREEMENT AND PAYING BY CHEQUE IS NO EVID ENCE OF SERVICE HAVING BEEN RENDERED. J) THE PERSON GIVING THE CONTRACT HAD DENIED THE PR ESENCE OF ANY MIDDLEMAN IN AWARDING CONTRACT; 3.3 IN VIEW OF ABOVE, AO DISALLOWED THE COMMISSION PAID TO MVAPL AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 4. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) WHO DELETED THE ADDITION OF COMMISSION PAYMENT MADE BY AO BY OB SERVING AS UNDER:- 5. I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORDE R AND THE SUBMISSIONS OF THE APPELLANT. THE FIRST REASON GIVE N BY THE ASSESSING OFFICER OF DISALLOWING COMMISSION IS THAT THE APPEL LANT HAD NOT DEDUCTED TAX AT SOURCE ON COMMISSION, ACCORDING TO THE ASSES SING OFFICER. HOWEVER, IT IS SEEN FROM THE SUBMISSIONS OF THE APP ELLANT FILED BEFORE THE ASSESSING OFFICER VIDE ITS LETTER DATED 28/12/2 011 WHICH HAS BEEN QUOTED BY THE ASSESSING OFFICER IN THE ASSESSMENT O RDER THAT THE APPELLANT HAD DEDUCTED TAX AT SOURCE. THE APPELLANT SUBMITTED BEFORE THE A.O THAT HE HAD DEDUCTED TAX AT SOURCE ON COMMI SSION PAID @ 0.09%. IT IS ALSO SUBMITTED THAT THE SAID TDS WAS D EPOSITED WITH THE CENTRAL GOVT. AS PER LAW. DURING THE APPELLATE PROC EEDINGS ALSO, THE APPELLANT HAS PRODUCED A COPY OF CHALLAN FROM WHICH IT IS SEEN THAT THE TDS WAS DEPOSITED ON 27/08/2009. 6. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF T HE APPELLANT AND I FIND THAT ITO (TDS), WARD-59(4), KOLKATA, HAD ISSUE D CERTIFICATE U/S ITA NO.843/KOL/2013 A.Y. 2009-10 ITO WD-30(2) KOL. V. SHMANOJ SETH PAGE 5 197(1) OF THE I.T. ACT, 1961 TO THE DEDUCTEE, NAMEL Y, M/S VIDHATA AGENCIES PVT. LTD. FOR DEDUCTION OF TAX A SOURCE @ 0.09%. ACCORDINGLY, THE APPELLANT HAD DEDUCTED TAX AT SOURCE AT THE AFO RESAID RATE. 7. THE DUE DATE OF DEPOSIT OF TAX, DEDUCTED AT SOUR CE, HAS BEEN EXTENDED UPTO THE DATE OF FILING OF RETURN BY THE F INANCE ACT, 2010. THE HON'BLE JURISDICTIONAL HIGH COURT HAS HELD THAT THE AFORESAID AMENDMENT IS RETROSPECTIVE. IN THE CASE OF VIRGIN CREATIONS, THE HON'BLE CALCUTTA HIGH COURT HAS HELD THAT THIS AMENDMENT IS RETROSPE CTIVE, IN THE CASE OF ITA NO. 302 OF 2011 GA 3200/2011 , DATED ON 23 RD NOVEMBER, 2011. IN TH4INSTANT CASE, THE TDS HAS BEEN DEPOSITED ON 27/0 8/2009, I.E, PRIOR TO THE DUE DATE OF FILING OF RETURN. THEREFORE, RESPEC TFULLY FOLLOWING THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT, IN THE CASE OF VIRGIN CREATIONS, IT IS HELD THAT THERE IS NO VIOLATION OF THE PROVISIONS OF SEC. 40(A)(IA) OF THE I.T. ACT, 1961. ACCORDINGLY, THE D ISALLOWANCE MADE BY THE ASSESSING OFFICER FOR THE REASON OF VIOLATION O F SEC. 40(A)(IA) IS NOT TENABLE IN LAW AND HENCE IT IS NOT SUSTAINED. 8. NOW COMING TO THE MERIT OF THE ADDITION, IT IS S EEN THAT THE APPELLANT HAD PAID COMMISSION OF RS.26,27,915/- TO M/S/. VIDH ATA AGENCIES PVT. LTD. AGAINST THEIR BILLS. IT IS SEEN FROM THE PROFI T & LOSS A/C THAT COMMISSION WAS DEBITED TO THE EXTENT OF RS.26,27,91 5/-. HOWEVER, THE AO DISALLOWED A SUM OF RS.29,52,726/- ON ACCOUNT OF COMMISSION WHICH WAS INCLUSIVE OF SERVICE TAX. IT IS FURTHER S EEN THAT THE COMMISSION WAS PAID TO M/S. VIDHATA AGENCIES PVT. L TD. FOR THE SERVICES RENDERED BY THEM REGARDING PROCUREMENT OF JOB, FOLLOW UP FOR THE PAYMENTS, SUPERVISION, ADHERENCE TO TIME SCHEDU LE, QUALITY CONTROL, SUPPLY CHAIN MANAGEMENT, ETC. IT IS ALSO SEEN THAT THE BILLS RAISED BY THE AFORESAID PARTY, IN RELATION TO THE SERVICES RENDER ED BY THEM, WERE ALSO PRODUCED BEFORE THE AO M/S VIDHTA AGENCIES PVT. LT. IS ASSESSED TO TAX UNDER PAN AACCV4647B. IT IS ALSO SEEN THAT ITO (TDS ), WARD-59(4), KOLKATA, HAS ISSUED CERTIFICATE U/S. 197(1) TO THE AFORESAID PARTY, M/S. VIDHATA AGENCIES PVT. LTD. FOR DEDUCTION OF TAX AT SOURCE AT LOWER RATE. 9. THE ASSESSING OFFICE HAS ALSO COMMENTED IN THE A SSESSMENT ORDER THAT M/S VIDHATA AGENCIES PVT. LTD. HAS DISCLOSED C OMMISSIONS RECEIVED FROM THE APPELLANT IN ITS RETURN OF INCOME . IF ANY EXPENSE HAS BEEN CLAIMED BY M/S VIDHATA AGENCIES PVT. LTD. AGAI NST COMMISSION RECEIVED BY IT FROM THE APPELLANT, IT DOES NOT INFL UENCE IN ANY WAY ALLOWABILITY OF COMMISSION IN THE HANDS OF THE APPE LLANT. M/S VIDHATA AGENCIES PVT. LTD. THE RECIPIENT OF COMMISSION, HAS CONFIRMED BEFORE THE ASSESSING OFFICER THAT IT HAS RECEIVED COMMISSI ON AMOUNTING TO RS.26,27,915/- FROM THE APPELLANT IN LIEU OF THE SE RVICES RENDERED BY IT. WHEN THE RECIPIENT OF COMMISSION IS ASSESSED TO TAX , IT HAS CONFIRMED RECEIPT OF COMMISSION FROM THE APPELLANT, IT HAS AL SO PRODUCED THE EVIDENCE OF THE SERVICES RENDERED TO THE APPELLANT BEFORE THE ASSESSING ITA NO.843/KOL/2013 A.Y. 2009-10 ITO WD-30(2) KOL. V. SHMANOJ SETH PAGE 6 OFFICER, THERE IS NO SHRED OF DOUBT REGARDING THE G ENUINENESS OF PAYMENT OF COMMISSION BY THE APPELLANT. MERE DENIAL OF ANY THIRD PARTY DOES NOT ADVERSELY AFFECT THE CASE OF THE APPELLANT BECAUSE THE APPELLANT HAD CLARIFIED BEFORE THE ASSESSING OFFICE R THAT M/S VIDHATA AGENCIES PVT. LD. HAS RENDERED SERVICES ON BEHALF O F THE APPELLANT AND IT WAS NOT IN CONTRACT WITH THE CUSTOMERS. IT IS CL ARIFIED THAT THE AGENT NEED NOT HAVE TO VISIT THE CUSTOMERS PERSONALLY. TH EREFORE, IT IS QUITE POSSIBLE THAT THE CUSTOMERS MAY NOT KNOW M/S. VIDHA TA AGENCIES PVT. LD., DIRECTLY. WHEN M/S VOIDHATA AGENCIES PVT. LTD. HAS DIRECTLY CONFIRMED THE TRANSACTIONS AND ADDUCED EVIDENCES OF SERVICES RENDERED, BEFORE THE ASSESSING OFFICER, I AM OF THE CONSIDERED VIEW THAT ASSESSING OFFICE HAS IGNORED THE RELEVANT FACTS ON RECORD. BESIDES THIS, IT IS ALSO FUND THAT THE PAYMENT TO THE SAID PARTY WAS MADE BY A/C. PAYEE CHEQUE. IN ADDITION TO THIS, THE APPELLANT HA S ALSO PAID SERVICE TAX @ 12.26% ON THE BILLS RAISED BY LIAISON AGENT W HICH FURTHER PROVES THAT THE TRANSACTION IS GENUINE AND IT HAS ALSO BEE N DISCLOSED BEFORE THE SERVICE TAX AUTHORITIES. THE COMMISSION PAID BY THE APPELLANT HAS BEEN DISCLOSED BY THE LIAISON AGENT IN THE INCOME TAX RE TURN WHICH IS A FACT ADMITTED BY THE ASSESSING OFFICER. IN THE LIGHT OF ALL THESE EVIDENCES, I AM OF THE CONSIDERED VIEW THAT THE TRANSACTION OF P AYMENT OF COMMISSION IS GENUINE AND THE AO WAS NOT RIGHT IN L AW IN DISALLOWING THE SAME. THE CASE LAWS RELIED UPON BY THE LD. AO A RE NOT APPLICABLE ON THE FACTS OF THE CASE BECAUSE IN THE INSTANT CAS E, THE APPELLANT HAS PROVED THE GENUINENESS OF THE TRANSACTIONS BY PRODU CING COPY OF AGREEMENT, BY PRODUCING EVIDENCE OF SERVICES RENDER ED, BY SHOWING THAT THE RECEIPT OF COMMISSION WAS DISCLOSED BY THE RECIPIENT IN IT RETURN, THE RECIPIENT IS ASSESSED TO TAX AND THAT T HE PAYMENT WAS MADE THROUGH A/C PAYEE CHEQUE. IN THE LIGHT OF ALL THESE FACTS, IT IS HELD THAT THE APPELLANT HAS DISCHARGED THE ONUS THAT LAY UPON IT AND THE AO HAS DISALLOWED THE COMMISSION WITHOUT ANY BASIS. HENCE, THE AO IS DIRECTED TO DELETE THE DISALLOWANCE OF RS.29,52,726/- MADE O N ACCOUNT OF COMMISSION. ACCORDINGLY, GROUND NOS. 1(A), (B) (C), (D), (E),(F) AND (G) OF THE APPEAL ARE ALLOWED. 5. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) REV ENUE IS IN APPEAL BEFORE US. SHRI K.M.ROY, LD. AUTHORIZED REPRESENTATIVE APPEARI NG ON BEHALF OF ASSESSEE AND SHRI AMITABHA CHOUDHURI, LD. DEPARTMENTAL REPRE SENTATIVE APPEARING ON BEHALF OF REVENUE. 6. WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PART IES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. LD. DR VEHEMENTLY RE LIED ON THE ORDER OF ITA NO.843/KOL/2013 A.Y. 2009-10 ITO WD-30(2) KOL. V. SHMANOJ SETH PAGE 7 ASSESSING OFFICER WHEREAS LD. AR RELIED ON THE ORDE R OF LD. CIT(A). WE FIND THAT AO DISALLOWED THE COMMISSION OF PAYMENT MADE T O MVAPL ON ACCOUNT OF TWO REASONS (I) THAT ASSESSEE HAS DEFAULTED IN DE DUCTING TDS WITHIN STIPULATED TIME (II) THAT ASSESSEE HAS NOT GIVEN JU STIFICATION FOR THE SERVICES AGAINST THE PAYMENT OF COMMISSION TO THE PARTY. HOW EVER, LD. CIT(A) HAS ALLOWED THE PAYMENT OF COMMISSION ON BOTH COUNTS I. E. (A) THERE IS NO DEFAULT FOR DEDUCTING THE TDS AS SPECIFIED UNDER THE TDS PR OVISION (B) THE LD. CIT(A) HAS ALLOWED THE COMMISSION EXPENSES ON MERITS AS WE LL. LD. AR SUBMITTED THAT ALL THE PAYMENTS OF COMMISSION WERE DULY MADE AFTER DEDUCTING THE TDS AT APPROPRIATE RATE AND ALL THE PAYMENTS WERE MADE THROUGH BANKING CHANNEL. MVAPL HAS ALSO DISCLOSED THE AMOUNT RECEIVED AS COM MISSION IN THEIR BOOKS OF ACCOUNT AND OFFERED TO TAX TO THE REVENUE. FINAL LY, LD. AR PRAYED FOR ALLOWANCE OF THE SAID EXPENSES AND RELIED ON THE OR DER OF LD. CIT(A). FROM THE AFORESAID DISCUSSION, WE FIND THAT PAYMENTS WER E MADE AFTER DEDUCTING TDS AND THERE WAS NO DEFAULT IN COMPLIANCE OF TDS P ROVISION. AO DISALLOWED THE COMMISSION EXPENSES THAT TDS WAS NOT DEDUCTED O R PAID WITHIN STIPULATED TIME AS SPECIFIED UNDER THE I.T. ACT. THIS GROUND D OES NOT HOLD ANY MERIT AS THE TDS WAS DEPOSITED ON DATED 27/08/2009 AS NOTED FROM THE ORDER OF THE LD.CIT(A) AND THE RETURN OF INCOME WAS SUBMITTED ON DATED 24/09/2009 AS NOTED FROM THE ORDER OF AO. THE LD. DR HAS NOT BROU GHT ANYTHING ON RECORD TO CONTROVERT THE SUBMISSION OF THE ASSESSEE. IN VIEW OF THIS MATTER, EVEN THE ASSESSEE DEDUCTED THE TDS AND DEPOSITED THE SAME AF TER EXPIRY OF RELEVANT FINANCIAL YEAR BUT BEFORE FILING THE RETURN OF INCO ME IS WITHIN THE PURVIEW OF LAW. ON THIS GROUND, WE ALLOW THE COMMISSION EXPENSE AS THERE WAS NO DEFAULT IN COMPLIANCE WITH TDS PROVISION ON THE PART OF ASSESS EE. NOW COMING TO SECOND ISSUE FOR ALLOWABILITY OF EXPENSE ON THE BAS IS OF MERIT, WE FIND THAT COMMISSION WAS PAID TO A PRIVATE LIMITED COMPANY AN D WHICH HAS DISCLOSED IN ITS BOOKS OF ACCOUNT. THE PAYMENT OF COMMISSION HAS NOWHERE BEEN DOUBTED BY THE AUTHORITIES BELOW. NOW, IN THE INSTA NT CASE, WE FIND THAT THE THIRD PARTY IS NOT CONFIRMING THE PAYMENT OF COMMIS SION FOR THE SERVICES RENDERED TO THE ASSESSEE THAT ALONE SHOULD NOT BE T HE GROUND FOR THE ITA NO.843/KOL/2013 A.Y. 2009-10 ITO WD-30(2) KOL. V. SHMANOJ SETH PAGE 8 DISALLOWANCE. SINCE THE AMOUNT OF COMMISSION HAS BE EN DULY RECORDED AND THE RECIPIENT OF COMMISSION HAS DISCLOSED IN ITS RE TURN OF INCOME SO THE DISALLOWANCE IS NOT CALLED FOR. IN THIS VIEW OF THE MATTER, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A) AND CONFIRM. THEREFORE, GROUND RAISED BY REVENUE IS DISMISSED. 7. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 20/01 /2016 SD/- SD/- (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 20 / 0 1/201 6 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ITO, WARD-30(2), AAYAKAR BHAVAN DAKSHIN, 2, GARIAHUT ROAD, SOUTH, 4 TH FLOOR, KOLKATA-68 2. /RESPONDENT-SHRI MANOJ SETH, 30B, PRIYANATH MULLICK ROAD, 1 ST FL. KOL-26 3. ) *+, , - / CONCERNED CIT KOLKATA 4., , -- / CIT (A) KOLKATA 5.01233*+,, *+ , / DR, ITAT, KOLKATA 6.26789 / GUARD FILE. BY ORDER/ ,, /TRUE COPY/ / , *+ ,