RAJ KUMAR BAID, Jaipur V. ITO, Jaipur

ITA 853/JPR/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1852 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 15-03-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 27-09-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: POONAM ROY DCIT DHK
• Keywords: Business income; Business expenditure; Block assessment; Revised return
• Section: 131; 37

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 853/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 SHRI RAJ KUMAR BAID, 21, SARDAR BHAWAN, MANGAL MARG, BAPU NAGAR, JAIPUR (RAJ) CUKE VS. I.T.O., WARD 6(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AHDPB 1623 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI SATISH GUPTA (CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT. POONAM ROY (DCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 07/11/2017 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 12/12/2017 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE EMANATES FR OM THE ORDER OF THE LD. CIT(A)-5, JAIPUR DATED 29/07/2016 FOR THE A .Y. 2010-11, WHEREIN THE ASSESSEE HAS FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW ALSO LD. LOWER AUTHORITIES GROSSLY ERRED IN MAKING AND CONFIRMING ADDITION OF RS. 22,90,000/- ON ACCOUNT OF DISALLOWANCE OF COMMISSIO N PAID. THE ADDITION AND COMMENTS MADE IN THE APPEAL ORDER ARE UNJUST, ILLEGAL AND CONTRARY TO THE FACTS OF THE CASE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW ALSO LD. LOWER AUTHORITIES GROSSLY ERRED IN DISALLOWING THE TDS CR EDIT OF RS. 6799/-. ITA 853/JP/2016_ RAJ KUMAR BAID VS ITO 2 2. THE ASSESSEE IS RUNNING AN ADVERTISING AGENCY IN THE NAME OF M/S RISHABH ADVERTISING AGENCY AND DERIVING INCOME FROM THIS BUSINESS ACTIVITY. RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 6,14 ,820/- WAS FILED ON 13/10/2010. THE CASE WAS SELECTED FOR SCRUTINY. THE A SSESSEE ALSO FILED A REVISED RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 5,82,620/-. IN THE REVISED RETURN OF INCOME, THE ASSESSEE CLAIMED LOSS UNDER THE HEAD INCOME FROM HOUSE PROPERTY. 3. GROUND NO. 1 OF THE APPEAL IS AGAINST CONFIRMING THE ADDITION OF RS. 22,90,000/- ON ACCOUNT OF DISALLOWANCE OF COMMISSION PAID. THE FACTS IN THIS REGARD ARE THAT THE ASSESSEE HAD DEBITED RS. 2 2,90,000/- IN THE P&L ACCOUNT AS COMMISSION EXPENSES. COMMISSION WAS PAID TO THE FOLLOWING PERSONS: 1. SAMRIDHI FURNITURE PROP ANITA GUPTA RS. 10,00, 000/- 2. SARVESHWARI ENTERPRISES RS. 2,90,000/- (PARTNERSHIP FIRM OF SUNITA MISHRA) 3. SUNITA MISHRA RS. 3,00,000/- 4. SUNITA GUPTA RS. 2,00,000/- 5. ALOK GUPTA HUF RS. 3,00,000/- 6. PANKAJ GUPTA & SONS HUF RS. 2,00,000/- THE ASSESSING OFFICER OBSERVED THAT THE COMMISSION P AYMENT MADE IN THE YEAR CONSIDERATION WAS VERY HUGE. NO SUCH COMMISSION WAS PAID IN THE PRECEDING YEAR. STATEMENT OF THESE PERSONS WERE RECO RDED AND SHOW CAUSE WAS ISSUED. THE ASSESSEE FILED HIS REPLY. AFTER CONS IDERING THE ENTIRE FACTS AND CIRCUMSTANCES AS WELL AS THE EVIDENCES SUBMITTED BY THE ASSESSEE, THE ITA 853/JP/2016_ RAJ KUMAR BAID VS ITO 3 ASSESSING OFFICER WAS NOT SATISFIED AND HE DISALLOWED RS. 22,90,000/- AS COMMISSION PAYMENT AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 4. THE LD. CIT(A) HAS CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER BY HOLDING AS UNDER: 2.3 I HAVE CONSIDERED THE FACTS OF THE CASE, THE AS SESSMENT ORDER AND THE SUBMISSIONS OF THE APPELLANT. THE BRIEF FACTS OF TH E CASE ARE THAT THE ASSESSEE IS PROPRIETOR OF M/S RISNABH ADVERTISING A GENCY, ENGAGED IN ADVERTISING BUSINESS. DURING THE YEAR THE ASSESSEE HAS DEBITED COMMISSION PAYMENT OF RS. 22,90,000/- IN THE P& L ACCOUNT. THE SAID COMMISSION WAS PAID TO 6 PERSONS BEING 3 LADIES VIZ. SMT. ANITA GU PTA, SMT. SUNITA GUPTA AND SMT. SUNITA MISHRA, 2 HUFS VIZ. ALOK GUPTA (HUF ) AND PANKAJ GUPTA (HUF) AND ONE FIRM VIZ SARVESHWARI ENTERPRISES WHOS E PARTNERS ARE SMT SUNITA MISHRA AND HER TWO MINOR DAUGHTERS. THE COMM ISSION WAS CLAIMED TO BE PAID TO THESE 6 PERSONS FOR OBTAINING ADVERTI SEMENTS FROM NATIONAL HIGHWAY AUTHORITY OF INDIA (NHAI). THE AO RECORDED THE STATEMENTS OF THE SAID PAYEES AND FOUND THAT ALL THE RECIPIENTS DID N OT HAVE ANY KNOWLEDGE OF THE FIELD OF ADVERTISING. NONE OF THEM HAD OBTAI NED ANY CONTRACT FROM ANYBODY BEFORE OR AFTER THIS PARTICULAR ADVERTISING CONTRACT OF NHAI. ALL THE RECIPIENTS CLAIMED TO HAVE WORKED ONLY FOR ONE PERS ON I.E. THE ASSESSEE AND OBTAINED ORDERS ONLY FROM NHAI AND THAT TOO ONLY IN THIS PARTICULAR YEAR VIZ. A.Y. 2010-11. THEY DID NO SUCH WORK BEFORE OR AFTER THIS YEAR. MOREOVER, NONE OF THEM WAS ABLE TO PRODUCE ANY EVID ENCE OF THE EFFORTS PUT IN OR CORRESPONDENCES ENTERED INTO BY THEM FOR OBTAINING THE SAID CONTRACT. IN FACT, EXCEPT FOR SMT. SUNITA GUPTA, NO NE OF THE RECIPIENTS COULD NOT EVEN STATE AS TO WITH WHOM THEY WERE IN TOUCH A T NHAI FOR OBTAINING THE SAID CONTRACT. EVEN SMT. SUNITA GUPTA, WHILE AN SWERING Q.N. 10 AND 11 OF HER STATEMENT, STATED THAT SHE DID NOT VISIT THE OFFICE OF NHAI BUT WAS IN ITA 853/JP/2016_ RAJ KUMAR BAID VS ITO 4 TOUCH TELEPHONICALLY WITH SH. RAKESH GUPTA (WRONGLY MENTIONED AS SH. RAJESH GUPTA) FOR OBTAINING THE CONTRACT. SHE FURTH ER STATED IN RESPONSE TO Q. NO. 8 THAT IT WAS HER HUSBAND, SH. ALOK GUPTA WH O WAS ALSO WORKING FOR THE SAID CONTRACT AND SHE CAME IN TOUCH WITH THE AS SESSEE THROUGH HIM. ON PERUSAL OF THE SANCTION LETTERS FOR THE SAID ADVERT ISEMENT CONTRACTS, IT IS SEEN THAT THE ABOVE NAMED PERSON VIZ. SH. RAKESH GU PTA IS PROJECT DIRECTOR OF NHAI, JAIPUR. IT IS FURTHER SEEN THAT 4 THE COMM ISSION PAYEES VIZ. SMT. ANITA GUPTA, SMT. SUNITA GUPTA, SH. ALOK GUPTA ( K ARTA OF ALOK GUPTA, HUF) AND SH. PANKAJ GUPTA (KARTA OF PANKAJ GUPTA, H UF) ARE CLOSE RELATIVES OF SH. RAKESH GUPTA OF NHAI. SH. NARESH G UPTA IS REAL BROTHER OF SH. RAKESH GUPTA AND IS ALSO HUSBAND OF SMT. ANITA GUPTA (PROPRIETOR OF SAMRIDDHI FURNITURE), WHO IS THE BIGGEST PAYEE OF C OMMISSION VIZ. RS. 10,00,000/-. SIMILARLY, SH. ALOK GUPTA AND SH. PANK AJ GUPTA ARE COUSIN BROTHERS/ CLOSE RELATIVES OF SH. RAKESH GUPTA AS ST ATED IN THE ASSESSEES SUBMISSIONS QUOTED ABOVE. IT IS FURTHER SEEN THAT T HE FIFTH PAYEE, SMT. SUNITA MISHRA IS WIFE OF SHRI OPENDRA MISHRA, WHO W AS WORKING IN NHAI AT A LEADING POSITION AT THE TIME WHEN THE SAID CONTRA CTS WERE GIVEN. SIMILARLY, THE SIXTH PAYEE, M/S SARVESHWARI ENTERPR ISES IS A FIRM WHOSE PARTNERS ARE SMT. SUNITA MISHRA AND HER TWO MINOR C HILDREN. THE IMPORTANT POINT THAT EMERGES FROM THE ENTIRE WEB OF FACTS, IS THAT BOTH SH. OPENDRA MISHRA AND SH. RAKESH GUPTA HELD IMPORTANT POSITION S IN NHAI, JAIPUR, WHEN THE CONTRACTS WERE GIVEN TO THE ASSESSEE. THER EFORE, IT IS NOT A COINCIDENCE THAT ALL THE COMMISSION PAYEES ARE INTI MATELY RELATED TO THESE TWO PUBLIC SERVANTS, AND HENCE THE SAID PAYEES DID NOT AT ALL NEED TO MAKE ANY EFFORT OR RENDER ANY SERVICES IN ORDER TO OBTAI N THE CONTRACTS FROM NHAI. IN FACT, IT IS QUITE CLEAR THAT ALL THE PAYEE S ARE SIMPLY FRONTS OR FACADES AND THE REAL BENEFICIARIES OF THE IMPUGNED COMMISSION PAYMENTS ARE THE ABOVE NAMED PUBLIC SERVANTS. THIS BEING THE CASE, THE SAID COMMISSION PAYMENTS AMOUNT TO NOTHING BUT BRIBES PA ID TO PUBLIC SERVANTS. SUCH PAYMENTS, WHICH ARE IN CONTRAVENTION OF LAW, ARE EXPRESSLY ITA 853/JP/2016_ RAJ KUMAR BAID VS ITO 5 DISALLOWABLE UNDER EXPLANATION TO SECTION 37(1). TH IS VIEW IS SUPPORTED BY THE DECISION OF HONBLE ITAT, JAIPUR BENCH IN THE C ASE OF ACIT VS. RAIENDRA KUMAR DANGAYACH & CO. (1993) 45 ITD 109 (JP.), WHER EIN THE ASSESSEE TRANSPORTER HAD DEBITED SPEED MONEY PAYMENTS TO PUB LIC SERVANTS (POLICEMEN) AND THE ISSUE WAS DECIDED AS FOLLOWS:- MAKING PAYMENTS TO THE POLICE PERSONNEL ON THE ROUT ES WOULD BE AN ACT IN CONTRAVENTION OF THE PROVISIONS OF THE INDIAN PE NAL CODE AND WOULD ACCORDINGLY AMOUNT TO INFRACTION OF LAW BESIDES BEI NG OPPOSED TO PUBLIC POLICY. THAT WOULD NOT BE A NORMAL INCIDENT OF BUSI NESS. IT WOULD, THEREFORE, BE DISQUALIFIED AS AN ALLOWABLE BUSINESS EXPENDITURE. THEREFORE, THE ALLOWABILITY OF THE EXPENDITURE IN QUESTION FOR VARIOUS YEARS COULD NOT BE ACCORDED JUDICIAL RECOGNITION. THE DEPUTY COMMIS SIONER (APPEAL)S ORDERS WERE ACCORDINGLY VACATED, AND THOSE OF THE I TO RESTORED. 2.4 FURTHER, THE HONBLE MADRAS HIGH COURT, IN THE CASE OF PRANAM FOUNDATIONS VS ACIT (2009) 185 TAXMAN 6(MAD.) HAS H ELD AS FOLLOWS REGARDING ILLEGAL GRATIFICATION PAID TO PUBLIC SERV ANTS: SECTION 37(L)OF THE INCOME TAX ACT, 1961- BUSINESS EXPENDITURE- ALLOWABILITY OF - BLOCK PERIOD FROM 01-04-1990 TO 2 6-09-2000 - ASSESSEE WAS ENGAGED IN CONSTRUCTION OF RESIDENTIAL FLATS- A SEARCH CONDUCTED AT ITS BUSINESS PREMISES REVEALED THAT IT HAD MADE CERTAIN ILLEGAL PAYMENTS SUCH AS BRIBES WHICH HAD BEEN DEBITED IN ITS BOOKS OF AC COUNT AS CONSTRUCTION EXPENSES - IN BLOCK ASSESSMENT, ASSESSING OFFICER MADE ADDITION OF AMOUNT OF SAID ILLEGAL EXPENSES AS UNDISCLOSED INCO ME OF ASSESSEE- ON APPEAL, TRIBUNAL CONFIRMED ADDITION- WHETHER TRIBUN AL HAD TAKEN CORRECT DECISION IN VIEW OF EXPLANATION TO SEC. 37 (1)- HEL D, YES. 2.5 FURTHER, SEVERAL COURTS HAVE HELD PAYMENTS OF ILLEGAL GRATIFICATION NOT TO BE ALLOWABLE AS DEDUCTION. IN THE CASE OF CIT VS. PT. VISHWANATH SHARMA (2009) 182 TAXMAN 63 (ALL.), THE ALLAHABAD HIGH COURT HAS HELD THAT PAYMENT OF COMMISSION TO GOVERNMENT DOCTORS FOR OBT AINING A FAVOUR THEREFROM BY PRESCRIBING MEDICINES IN WHICH THE ASS ESSEE IS DEALING, WILL COME WITHIN THE CATEGORY OF ILLEGAL GRATIFICATION O F BRIBE AND THEREFORE CANNOT BE ALLOWED AS BUSINESS EXPENDITURE. ITA 853/JP/2016_ RAJ KUMAR BAID VS ITO 6 2.6 THE HONBLE KARNATAKA HIGH COURT, IN THE CASE O F J.K. PANTHAKI & CO. VS ITO (2012) 22 TAXMANN.COM 49 (KAR.). HAS HELD THAT COMMISSION PAID TO MD ETC. OF A COMPANY AWARDING CIVIL CONTRACT BEING A BRIBE COULD NOT BE CONSTRUED AS AN EXPENDITURE AT ALL. IN THE PRESENT APPELLANTS CASE, THE FACTS ARE QUITE SIMILAR SINCE COMMISSION HAS INDIRE CTLY BEEN PAID TO THE PUBLIC SERVANTS WHO WERE IN A POSITION TO INFLUENCE THE AWARD OF CONTRACTS TO THE APPELLANT. IN FACT, THE KARNATAKA HIGH COURT DEALT WITH THE ISSUE OF COMMISSION PAYMENT TO PRIVATE PERSONS IN A COMPANY, WHEREAS IN THE CASE OF THE APPELLANT, THE PAYMENT IS MADE TO PUBLIC SER VANTS, INDIRECTLY THROUGH THEIR CLOSE RELATIONS. SUCH UNHOLY NEXUS HA S LED TO A LOSS OF RS. 22,90,000/- TO THE GOVERNMENT, SINCE CONTRACT AMOUN T PAID TO THE ASSESSEE HAS NATURALLY BEEN INFLATED TO THAT EXTENT TO ENABLE PAYMENT OF THE SAID AMOUNT OF COMMISSION. 2.7 THE OTHER ARGUMENT OF THE APPELLANT IS THAT AL L COMMISSION PAYMENTS WERE BY CHEQUE, WITH TDS BEING DEDUCTED THEREON AND RETURNS BEING FILED BY ALL PAYEES. IN THIS REGARD ALSO IT IS OBSERVED T HAT THE ENTIRE EXERCISE IS A WELL DESIGNED HOGWASH SINCE COMMISSION PAYMENTS HAV E BEEN RECEIVED IN THE HANDS OF LADIES AND HUF, AND A FIRM, ALL OF WHO M HAVE PRACTICALLY NO OTHER INCOME. THUS EFFECTIVELY, AFTER TAKING ADVANT AGE OF THE BASIC EXEMPTION LIMIT AS WELL AS AFTER DEBITING CERTAIN E XPENDITURES, THE TAXES PAID BY ALL PAYEES IS NEGLIGIBLE. 2.8 THE FURTHER FACT THAT NONE OF THE PAYEES COULD PRODUCE ANY EVIDENCE OF RENDERING ANY GENUINE SERVICES SO AS TO EARN THE SA ID COMMISSION AND ALSO THE FACT THAT NONE OF THE PAYEES HAD ANY EXPERIENCE OF THE ADVERTISING FIELD EITHER BEFORE OR AFTER THE IMPUGNED TRANSACTION, CO UPLED WITH THE FACT THAT THEY ARE ALL CLOSELY ASSOCIATED TO INFLUENTIAL OFFI CERS OF NHAI, SUFFICIENTLY PROVES THAT NO ACTUAL SERVICES WERE RENDERED BY THE PAYEES. FURTHER, AS DISCUSSED EARLIER, THE COMMISSION PAYMENTS AMOUNT T O ILLEGAL GRATIFICATION OR BRIBE PAID TO PUBLIC SERVANTS, WHICH STANDS IN C LEAR CONTRAVENTION OF LAW. ITA 853/JP/2016_ RAJ KUMAR BAID VS ITO 7 ACCORDINGLY, THE COMMISSION PAYMENTS AMOUNTING TO R S. 22,90,000/- ARE DISALLOWABLE NOT ONLY UNDER EXPLANATION TO SEC. 37( 1), BUT ARE ALSO DISALLOWABLE ON THE GROUNDS OF NON RENDERING OF ACT UAL SERVICES BY THE PAYEES. THE IMPUGNED ADDITION IS ACCORDINGLY UPHELD . GROUND NO. 1 IS THEREFORE DISMISSED. 5. NOW THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. THE LD AR OF THE ASSESSEE HAS SUBMITTED AS UNDER: THE LEARNED ASSESSING OFFICER HIMSELF HAS ACCEPTED AT PARA 3 PAGE 5 OF THE ASSESSMENT ORDER THAT ALL THE RECIPIENTS OF COMMISS ION ARE ASSESSED TO INCOME TAX. THEY HAVE SHOWN THE COMMISSION INCOME RECEIVED FROM THE ASSESSEE IN THEIR RESPECTIVE RETURN OF INCOME. THEY PERSONALLY APPEARED BEFORE THE LEARNED ASSESSING OFFICER IN RESPONSE TO SUMMONS IS SUED UNDER SECTION 131 OF THE INCOME TAX ACT 1961. ALL OF THEM ACCEPTED THE T RANSACTION AND RECEIPT OF PAYMENT OF COMMISSION FROM THE ASSESSEE. PAYMENT OF COMMISSION WAS MADE THROUGH BANKING CHANNEL. TAX WAS DEDUCTED AT SOURCE AND WAS DEPOSITED IN GOVERNMENT TREASURY. IT IS NOT THE CASE OF THE LEARNED ASSESSING OFFICER THAT THE PAYMENT RECEIVED BY THE RECIPIENTS THROUGH CHEQUE WAS RETURNED BACK TO THE ASSESSEE IN CASH. THE BUSINESS OF THE ASSESSEE HAS INCREASED SUBSTANTIALL Y DURING THE YEAR UNDER CONSIDERATION AND IT WAS ONLY DUE TO NEW BUSINESS O F NHAI. THIS FACT HAS BEEN AGREED BY LD A.O. THE ASSESSEE SUBMITTED THE BOOKS OF ACCOUNTS ALONG WITH THE VOUCHERS FOR EXAMINATION AND LEARNED ASSESSING OFFICER COULD NOT POINT OUT ANY MISTAKE THERE IN AND THEREFORE ACCEPTED THE BOOKS OF ACCOUN TS. IT IS ALSO NOT THE CASE OF LD A.O. THAT RECIPIENTS ARE RELATIVES OF ASSESSEE. ASSESSEE ALSO SUBMITTED BEFORE LEARNED ASSESSING OF FICER: - ITA 853/JP/2016_ RAJ KUMAR BAID VS ITO 8 1. A CHART SHOWING TOTAL BUSINESS RECEIPT FROM NHAI THROUGH ABOVE REFERRED 6 RECIPIENTS OF COMMISSION ALONG WITH TOTAL COMMISSIO N RECEIVED BY THE ASSESSEE FROM THE RESPECTIVE NEWS PAPER AGENCY AND THE DETAILS OF THE COMMISSION PAID TO RESPECTIVE RECIPIENTS ON THEIR W ORK. IN THIS CHART IT WAS ALSO MENTIONED THAT ON WHICH BILL NO. AND FOR WHICH WORK THE COMMISSION WAS PAID TO WHOM COPY OF CHART IS ALSO SUBMITTED HE REWITH.(APB-29&30) APART FROM THIS COPY OF LEDGER ACCOUNT OF NHAI IN THE BOOKS OF ASSESSEE(APB-31), COPY OF MOU WITH M/S SAMRIDHI FUR NITURES (APB-28) AND COPY OF CREDIT NOTES ISSUED BY THE ASSESSEE TO THE RECIPIENTS OF THE COMMISSION WERE ALSO SUBMITTED BEFORE LEARNED ASSES SING OFFICER AND ARE AGAIN SUBMITTED HEREWITH(APB 32-42). YOUR HONOUR WE WOULD LIKE YOU KIND ATTENTION ON TH E COPIES OF STATEMENTS U/S 131 TAKEN BY LEARNED ASSESSING OFFICER. A. M/S SAMRIDHI FURNITURE, PROPRIETOR SMT ANITA GUP TA W/O SHRI NARESH GUPTA PAN NO. ABYPG1735FIAPB 01- 06): STATEMENTS OF ABOVE REFERRED RECIPIENT OF COMMISSI ON M/S SAMRIDHI FURNITURE THROUGH PROPRIETOR ANITA GUPTA WAS TAKEN ON 15 FEB.2013. IN THE STATEMENTS SMT. ANITA GUPTA WHILE ANSWERING QUESTIO N NO. 7 SPECIFICALLY STATED THAT THE COMMISSION WAS RECEIVED BY ME FROM M/S RISHABH ADVERTISING AGENCY FOR BRINGING THE ADVERTISEMENT P ROPOSAL. IT WAS ALSO STATED WHILE ANSWERING QUESTION NO. 10 THAT FOR THE ABOVE REFERRED COMMISSION THE WRITTEN AGREEMENT WAS MADE IN BETWEE N HER AND M/S RISHABH ADVERTISING AGENCY. IT IS ALSO ON THE RECOR D THAT SHE SUBMITTED HER COPY OF AUDITED FINANCIAL STATEMENT BEFORE THE LEAR NED ASSESSING OFFICER. IT WAS ALSO STATED BY HER THAT IN FUTURE SHE DID NOT D O COMMISSION BUSINESS BECAUSE SEE DID NOT RECEIVE THE ORDERS AND OPPORTUN ITY FOR THE SAME. SMT ANITA GUPTA IS M.COM AND DOING BUSINESS SINCE 1995. ITA 853/JP/2016_ RAJ KUMAR BAID VS ITO 9 B. SMT. SUNITA MISRA W/O SHRI QPENDRA MISRA PAN NO . ACKPM8677M ( APB 07-13) :-WHILE ANSWERING QUESTION NO.7 & 5 SMT. SUN ITA MISRA STATED THAT SHE RECEIVED COMMISSION OF RS. 300000/- FROM M/S RI SHABH ADVERTISING AGENCY ON ACCOUNT OF PROCURING ADVERTISEMENT ORDERS FOR THEM. SUNITA MISHRA IS MA AND DOING BUSINESS SINCE LAST 4-5 YEAR S. C. M/S SURVEYSHREE ENTERPRISES PAN NO. ABRFS8202I ( APB 07-13):- WHILE ANSWERING QUESTION NO. 5 SMT. SUNITA MISRA WORKING PARTNER OF THE FIRM STATED THAT HER FIRM HAS RECEIVED COMMISSION INCOME OF RS. 2,90,000/- FROM M/S RISHABH ADVERTISING AGENCY FOR PROCUREMENT OF W ORK. FIRM IS DOING BUSINESS SINCE LAST 3 YEARS. D. ALOK GUPTA HUF PAN NO. AACHA9729E( APB 14-17) : - WHILE ANSWERING QUESTION NO.5 ALOK GUPTA KARTA OF HUF STATED THAT T HEY HAVE RECEIVED COMMISSION OF RS. 3,00,000/- FROM M/S RISHABH ADVER TISING AGENCY FOR PROCURING ADVERTISING WORK FOR THEM. HUF IS FILING RETURN OF INCOME SINCE LAST 6 YEARS. IT HAS ALSO BEEN STATED THAT THE WORK WAS DONE WITH THE HELP OF SON SIDHARTH. E. SMT. SUNITA GUPTA PAN NO. AEHPG6494F( APB 18-22) :- WHILE ANSWERING QUESTION NO.7 SHE STATED THAT SHE RECEIVED COMMISSI ON FROM M/S RISHABH ADVERTISING AGENCY FOR PROCURING ADVERTISING WORK F OR THEM. WHILE ANSWERING QUESTION NO. 17 IT WAS ALSO STATED THAT T HE COMMISSION WAS RECEIVED FOR RS. 2,00,000/- VIDE CHEQUE NO. 911405 WHICH WAS DEPOSITED IN BANK ACCOUNT. SHE IS M.COM AND DOING SHARES INVESTM ENT BUSINESS SINCE 7 YEARS. F. PANKAI GUPTA HUF PAN NO. AAHHP6397QR APB 23- 27 ) :-WHILE ANSWERING QUESTION NO.7, 8 & 9 IT WAS SPECIFICALLY STATED THA T HIS HUF HAD BUSINESS RELATIONSHIP DURING A.Y.. 2010-11 WITH M/S RISHABH ADVERTISING AGENCY AND WORKED ON COMMISSION FOR THE OWNER OF M/S RISHABH A DVERTISING AGENCY MR. RAJ KUMAR BAID. ITA 853/JP/2016_ RAJ KUMAR BAID VS ITO 10 IT IS ALSO ON RECORD THAT ALL THE RECIPIENTS HAVE FILED THEIR RETURN OF INCOME AND HAVE SHOWN THE COMMISSION RECEIPTS IN THEIR RES PECTIVE RETURN AND HAVE PAID DUE TAXES. IT IS ALSO ON RECORD THAT ALL THE PAYMENTS WERE MA DE THROUGH ACCOUNT PAYEE CHEQUE AFTER DEDUCTING TDS. IT IS ALSO SUBMITTED THAT LD A.O. HAS MADE THE DIS ALLOWANCE SIMPLY ON THE BASIS OF ASSUMPTIONS & PRESUMPTIONS AND ON THE BASI S OF INCORRECT FACTS. LD A.O. HAS STATED THAT THE PAYEES WITHDRAWN THE C ASH FROM THE BANK ACCOUNTS. AT THE VERY OUTSET IT IS THE RIGHT OF PAY EES TO USE THEIR MONEY IN THEIR OWN WAY. HOWEVER SMT SUNITA GUPTA IN HER STAT EMENT HAS STATED THAT SHE DEPOSITED THE MONEY IN HER HUSBANDS FIRM & GET TING INTEREST THEREON. LD A.O. HAS ALSO MENTIONED ONLY ONE CASE OF SH. PAN KAJ GUPTA HUF WHERE THE CASH HAS BEEN WITHDRAWN IMMEDIATELY AFTER THE D EPOSIT. SURPRISINGLY NO ENQUIRY WAS MADE FROM SH. PANKAJ GUPTA KARTA EVEN N O SPECIFIC QUESTION WAS ASKED FROM HIM DURING THE COURSE OF RECORDING O F STATEMENTS. SIMILAR TYPE OF QUESTIONS WERE NOT ASKED FROM ALOK GUPTA, S UNITA GUPTA & SUNITA MISRA. THERE WERE VALID REASONS FOR WITHDRAWN OF MO NEY. MOREOVER THESE ARE SIMPLY ASSUMPTIONS & PRESUMPTIONS WHICH SHOULD NOT BE MADE BASIS FOR DISALLOWANCE. IT IS FURTHER SUBMITTED THAT THE ASSESSEE HAS INCU RRED THE EXPENDITURE WHOLLY & EXCLUSIVELY FOR THE PURPOSE OF BUSINESS AS REQUIRED BY SECTION 37 OF THE ACT. THIS FACT IS ESTABLISHED AS THE RECEIPT S FROM ADVERTISING HAS INCREASED THIS YEAR SUBSTANTIALLY FROM RS 2.66 CROR E TO RS 4.08 CRORE. THEREFORE IT IS CLEAR THAT THE ASSESSEE HAS INCURRE D THIS EXPENDITURE WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. MERE M AKING OF PAYMENT OR MAKING OF PAYMENT THROUGH CHEQUE MAY OR MAY NOT BE SOLE ACCEPTABLE EVIDENCE FOR ALLOWING OR DISALLOWING EXPENDITURE BU T IF THE PAYMENT MADE THROUGH BANKING CHANNEL IS LINKED WITH INCREASE IN BUSINESS RECEIPTS AND ITA 853/JP/2016_ RAJ KUMAR BAID VS ITO 11 ACCEPTANCE OF PAYMENT & WORK BY THE PAYEES THE EXPE NDITURE IS NOT ONLY GENUINE BUT HAS BEEN INCURRED WHOLLY AND EXCLUSIVEL Y FOR THE BUSINESS. LD A.O. RELIED UPON CERTAIN CASE LAWS WHICH ARE DI FFERENT ON FACTS. THE FACTS OF THE CASE OF SIDDHO MAI & SONS V/S ITO 122 ITR 83 9 ARE DIFFERENT FROM THE FACTS OF THE CASE OF ASSESSEE. IN THIS CASE COMMISS ION WAS PAID TO MINOR SONS FOR TAKING DEPOSITS FROM THEM ONLY. LIKEWISE THE FACTS OF THE CASE OF CIT V/S PREMIER BREWERIES LTD 279 ITR 51 (KERALA) ARE ALSO DIFFERENT FROM THE FACTS OF THE C ASE OF ASSESSEE AS IN THE CASE OF ASSESSEE ALL THE PAYEES OF COMMISSION HAS A CCEPTED THAT THEY HAVE WORKED FOR THE ASSESSEE AND HAVE PROCURED THE BUSIN ESS FOR THE ASSESSEE AND HAVE RECEIVED THE PAYMENT FROM THE ASSESSEE. IN THIS CASE IN ENQUIRES THE FACTS WERE DIFFERENT & IT WAS PROVED THAT THE P AYEE HAD NOT DONE ANY LIAISON WORK. IN OUR CASE THE FACTS ARE TOTALLY DIF FERENT. SINCE THE ASSESSEE HAS INCURRED THE EXPENDITURE GE NUINELY WHOLLY & EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. PAYMENTS H AVE BEEN MADE THROUGH BANKING CHANNEL AFTER DEDUCTING ITDS. ALL THE PAYEES HAVE FILED THEIR RETURNS OF INCOME DECLARING THE COMMISSION INCOME. ALL THE PAYEES HAVE ACCEPTED IN STATEMENT U /S 131 BEFORE THE ASSESSING OFFICER THAT THEY HAVE WORKED FOR THE ASS ESSEE AND HAVE RECEIVED THE PAYMENTS, THE RATIO OF DECISION OF MC DOWELL & CO. LTD CASE 154ITR148 IS NOT APPLICABLE ON THE FACTS OF THE CASE OF THE A SSESSEE .ASSESSEE HAS NOT ADOPTED ANY COLOURABLE DEVICE OR DUBIOUS METHODS. A SSESSEE HAS NOT AVOIDED THE PAYMENT OF TAX. RELIANCE IS PLACED ON THE DECISION OF CIT V/S NOSH IRA DARA MODY (2014) 50 TAXMAN.COM (BOMBAY) WHERE IT HAS BEEN HELD THAT WH ERE THE RECIPIENTS OF COMMISSION PAYMENT HAS ACCEPTED THE SAME AND HAS DISCLOSED THE SAID RECEIPT IN THEIR ROI, NO DISALLOWANCE U/S 37 CAN BE MADE. ITA 853/JP/2016_ RAJ KUMAR BAID VS ITO 12 RELIANCE IS ALSO PLACED IN THE CASE OF CIT V/S NAN GLIA FABRICS (P) LTD 220 TAXMAN 17 (GUJ) WHERE IT HAS BEEN HELD THAT IF THE COMMISSION PAYMENT HAS BEEN MADE THROUGH A/C PAYEE CHEQUE, NO DISALLOW ANCE CAN BE MADE. IN CIT VS SHREE RAMA MULTI TECH LTD. 220 TAXMAN 76 (GUJ) HAS BEEN HELD THAT SIMPLY MORE EXPENSES ON COMMISSION HAS BEEN IN CURRED DURING THE YEAR, THE DISALLOWANCE CANNOT BE MADE. IN CIT V/S E. RAM CHANDRAN 359 ITR 671 (MADRAS) IT HAS BEEN HELD THAT WHERE BUSINESS HAS BEEN PROCURED, GENUINENESS OF PA YMENT IS ESTABLISHED. IN MARUTI INS DISTRIBUTION SERVICES V/S CIT 225 TA XMAN 63(DELHI) IT HAS BEEN HELD THAT IT IS EXCLUSIVE DOMAIN OF PARTIES TO DECI DE RATE OF COMMISSION. 6. ON THE OTHER HAND, THE LD DR HAS RELIED ON THE O RDERS OF THE AUTHORITIES BELOW. 7. BOTH THE SIDES WERE HEARD ON THIS ISSUE. THE ASSES SEE WAS ENGAGED IN THE ADVERTISING BUSINESS. THE TURNOVER OF THE ASS ESSEE FOR THE YEAR UNDER CONSIDERATION INCREASED SUBSTANTIALLY FROM RS. 2.66 CRORES TO 4.08 CRORES. THE PERSONS TO WHOM THE COMMISSIONS PAID WERE ASSESSED TO INCOME TAX. THE RECEIPT OF THE COMMISSION HAS BEEN DECLARED IN T HEIR RETURN OF INCOME BY THESE PERSONS. THESE PERSONS APPEARED IN PERSON BEFORE THE ASSESSING OFFICER IN RESPONSE TO THE SUMMONS ISSUED U/S 131 O F THE ACT AND ALL OF THEM CONFIRMED THE TRANSACTION AND RECEIPT OF COMMI SSION. THE PAYMENTS OF THE COMMISSION MADE THROUGH BANKING CHANNELS AND NECESSARY TAX WAS DEDUCTED AT SOURCE, WHICH WAS DULY DEPOSITED IN THE G OVERNMENT TREASURY. THE ALLEGATION THAT THE AMOUNT RECEIVED THROUGH CHE QUE WAS RETURNED BACK ITA 853/JP/2016_ RAJ KUMAR BAID VS ITO 13 IN CASH TO THE ASSESSEE IS COMPLETELY BASELESS AND BASED ON SURMISES. NO SUCH EVIDENCE BROUGHT ON RECORD. FURTHER, THE ASSES SEE HAS STARTED NEW BUSINESS WITH NATIONAL HIGHWAY AUTHORITY OF INDIA DUR ING THE YEAR. THE TURNOVER HAS INCREASED SUBSTANTIALLY. THE BOOKS WERE DULY AUDITED AND NO DISCREPANCY WAS POINTED OUT BY THE ASSESSING OFFICER . THE OTHER ALLEGATION THAT THIS AMOUNT MIGHT HAVE BEEN TOWARDS THE ILLEGAL PAYMENT FOR GETTING THE ADVERTISEMENT IS ALSO WITHOUT ANY BASIS. NO EVID ENCE IS ON RECORD TO SUPPORT SUCH OBSERVATION. THE LD. CIT(A) OBSERVATION TO SUSTAIN THE ADDITION THAT THE PAYMENT WAS ILLEGAL GRATIFICATION OR BRIBE PAID TO THE PUBLIC SERVANT IS COMPLETELY BASELESS AND IT IS ONLY SURMI SES AND CONJECTURES. THERE IS NO EVIDENCE ON RECORD, WHICH SUBSTANTIATES T HIS OBSERVATION OF THE LD. CIT(A). THIS EXPENDITURE INCURRED BY THE ASSESSEE WAS WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS AND SUCH EX PENDITURES ARE ALLOWABLE EXPENDITURES U/S 37 OF THE ACT. CONSIDERING ALL THE SE FACTS, THE BENCH FIND THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION. FURTHER THE CASE LAWS RELIED UPON BY THE LD. CIT(A) WERE ALSO HAVI NG DIFFERENT FACTS, THEREFORE, THE RATIO LAID DOWN IN THESE CASES LAWS, C ANNOT BE MADE A BASIS FOR SUSTAINING THE ADDITION IN THIS CASE. MOREOVER, THE VIEW TAKEN BY THE BENCH IS ALSO SUPPORTED BY VARIOUS DECISIONS, SUCH AS CIT VS. NOSHIRA DARA MODY (2014) 50 TAXMAN.COM (BOMBAY), CIT VS NANGLIA FA BRICS (P) LTD. 220 TAXMAN 17 (GUJ), CIT VS SHREE RAMA MULTI TECH LTD. 220 TAXMAN 76 ITA 853/JP/2016_ RAJ KUMAR BAID VS ITO 14 (GUJ), CIT VS. E. RAM CHANDRAN 359 ITR 671 (MAD) AND MARUTI INS. DISTRIBUTION SERVICES VS CIT 225 TAXMAN 63 (DEL). CON SIDERING THE RATIO LAID DOWN IN THESE CASE LAWS AND THE FACTS ON THE ISSUE, B ENCH DIRECT TO DELETE THE ADDITION. THIS GROUND OF APPEAL IS ALLOWED. 8. THE 2 ND GROUND OF THE APPEAL IS AGAINST DISALLOWING THE TDS CREDIT OF RS. 6799/-. THE LD CIT(A) HAS CONFIRMED THE DISALLOWAN CE BY HOLDING THAT THE INCOME CORRESPONDING TO THE TDS AMOUNT OF RS. 6 799/- HAS BEEN SHOWN BY THE ASSESSEE IN THE PRECEDING YEAR. ACCORDI NG TO SECTION 199 R.W.R 37BA, CREDIT FOR SUCH TDS WOULD NOT BE ALLOWABLE IN THIS YEAR. 9. NOW THE ASSESSEE IS IN APPEAL. THE LD AR OF THE AS SESSEE HAS SUBMITTED THAT DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS CLAIMED TDS OF RS. 6799/- FOR WHICH SALES HAS BEEN B OOKED IN PREVIOUS YEAR. SUCH TDS WAS DEDUCTED BY THE CLIENT AT THE TIME OF PAYMENT MADE TO THE ASSESSEE AND ALSO ISSUED TDS CERTIFICATE IN THE YEAR OF PAYMENT. THEREFORE WE SUBMIT THAT THE ASSESSEE HAS CORRECTLY C LAIMED TDS OF RS. 6799/- DURING THE YEAR UNDER CONSIDERATION AND SHOU LD BE ALLOWED TO THE ASSESSEE. 10. ON THE OTHER HAND, THE LD DR HAS RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 11. I HAVE HEARD BOTH THE SIDES ON THIS ISSUE. IT I S NOTED FROM THE WRITTEN SUBMISSIONS OF THE A.R. OF THE ASSESSEE WHEREIN HE H AS PRAYED THAT TDS ITA 853/JP/2016_ RAJ KUMAR BAID VS ITO 15 WAS DEDUCTED BY THE CLIENT AT THE TIME OF PAYMENT MA DE TO THE ASSESSEE AND TDS CERTIFICATE WAS ISSUED DURING THE YEAR OF PAY MENT. THE LD A.R. FURTHER SUBMITTED THAT THE ASSESSEE HAS CORRECTLY C LAIMED TDS OF RS.6799/-. IN THIS VIEW OF THE MATTER, IT WILL BE IN THE INTERES T OF JUSTICE AND EQUITY TO RESTORE THE GROUND OF APPEAL TO THE FILE OF THE ASS ESSING OFFICER TO DECIDE IT DE NOVO AFTER TAKING INTO CONSIDERATION VARIOUS FAC TS OF THE ISSUE INCLUDING ISSUE OF THE TDS CERTIFICATE. ACCORDINGLY, GROUND NO . 2 OF THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12/12/2017. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 12 TH DECEMBER, 2017 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI RAJ KUMAR BAID, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD 6(2),JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 853/JP/2016) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR