M/s Enayat Overseas, Kanpur V. Astt. Commissioner of Income Tax-i, Kanpur

MA 109/LKW/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4062 (ITAT-LUCKNOW)
• Duration Of Justice: 4 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-01-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 16-09-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Business expenditure

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI A.K. GARODIA, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER M.A. NO.109/LKW/2015 (IN ITA NO.759/LKW/2014) ASSESSMENT YEAR:2011-2012 M/S ENAYAT OVERSEAS, D - 374, DEFENCE COLONY, JAJMAU, KANPUR PAN AADFP 8520 H VS. ACIT - I, KANPUR (APPELLANT) (RESPONDENT) APPELLANT BY SHRI RAKESH GARG, ADVOCATE RESPONDENT BY SHRI AMIT NIGAM, DR DATE OF HEARING 15 /0 1 /201 6 DATE OF PRONOUNCEMENT 0 3 / 02.2016 O R D E R PER A.K. GARODIA: THIS MA IS FILED BY THE ASSESSEE STATING THAT THER E ARE SOME APPARENT MISTAKES IN THE TRIBUNALS ORDER DATED 20.08.2015 P ASSED IN ITA NO.759/LKW/2014. THE RELEVANT PARAS OF THIS MA AVAI LABLE ON PAGES 3 AND 4 ARE REPRODUCED HEREIN BELOW: THAT AT THE TIME OF HEARING BEFORE THE HONBLE TRI BUNAL THE DEPARTMENTAL REPRESENTATIVE DID NOT MAKE ANY SUBMISSIONS NOR DID HE CONTROVERT THE FINDINGS AS MADE BY THE AUTHORITIES BELOW. RATHER THERE WAS NO SUBMISSION ADVANCED BY THE DR DISPUTING THE DELETION OF THE DISALLOWANCE O F TRAVELLING EXPENSES BY THE CIT(A). EVEN OTHERWISE, THE EXPENSES INCURRED ON EMPLOYEES ARE ALLOWABLE BUSINESS EXPENDITURE. IN THE PRESENT CASE, NOT ONLY THE EXPEN SES HAVE BEEN INCURRED ON THE EMPLOYEE BUT NECESSARY EVIDENCES HAVE BEEN FURN ISHED IN RESPECT OF THE EMPLOYEE RENDERING SERVICES. THE FACT THAT THE EMPL OYEE IS EMPLOYED AND HAS BEEN PAID SALARY IS NOT IN DISPUTE FOR THE REASON T HAT THE SALARY PAID TO THE EMPLOYEE HAS NEITHER BEEN DISPUTED NOR HAS BEEN DIS ALLOWED. 2 THAT IN ABSENCE OF ANY SUBMISSIONS ADVANCED BY THE DR, THERE WAS NO REASON TO REVERSE THE FINDING OF THE CIT(A). SINCE THE DR DID NOT MAKE ANY SUBMISSION, THERE WAS NO OCCASION FOR THE COUNSEL OF THE ASSESS EE TO ADVANCE ANY SUBMISSIONS. THE ABOVE IS A MISTAKE APPARENT FROM RECORD, IT IS PRAYED THAT THE ORDER ON THIS PARTICULAR ISSUE I.E. DISALLOWANCE OF TRAVELLING EX PENSES MAY KINDLY BE RECALLED, AND BE RE-ADJUDICATED. 2. LD. AR OF THE ASSESSEE REITERATED THE SOME CONTE NTIONS WHICH ARE RAISED BY THE ASSESSEE IN THE MA AS REPRODUCED ABOVE. LD. DR OF THE REVENUE SUBMITTED THAT THERE IS NO MISTAKE IN THE TRIBUNAL S ORDER. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THE ISSUE IN DISPUTE REGARDING DELETION OF DISALLOWANCE OF RS.1, 80,850/- MADE BY THE ASSESSING OFFICER OUT OF FOREIGN TRAVELLING EXPENSE S HAS BEEN DECIDED BY THE TRIBUNAL ON THIS BASIS THAT NOTHING HAS BEEN BROUGH T ON RECORD EITHER DURING ASSESSMENT PROCEEDINGS OR DURING THE FIRST APPELLAT E PROCEEDINGS TO SUBSTANTIATE WHETHER THE FOREIGN TRAVELLING EXPENSE S WERE IN CONNECTION WITH BUSINESS OF THE ASSESSEE FIRM AND LD. CIT(A) HAS DE LETED THE ENTIRE DISALLOWANCES WITHOUT GIVING ANY SPECIFIC FINDING O R ANY COGENT REASON IN HIS ORDER. WE ALSO FIND THAT THIS ISSUE WAS DECIDED BY T HE LD. CIT(A) AS PER PARA NO. 18 OF HIS ORDER. IN THIS PARA, HE HAS NOTED THA T THE FINDING OF THE ASSESSING OFFICER THAT FOREIGN TRAVELLING OF MOHD. KAMRAN AFTAB, WHO IS NOT THE PARTNER OF THE FIRM AND THE VISA SHOWS THAT THE SAM E WAS ISSUED FOR SOCIAL PURPOSE FOR 30 DAYS ONLY AND THEREAFTER HE HAS NOTE D THE SUBMISSIONS OF THE LD. AR OF THE ASSESSEE BEFORE HIM WHICH ARE GENERAL IN NATURE, SAYING THAT THE FOREIGN TRAVELLING EXPENSES WERE INCURRED ON FOREIG N TRAVELLING OF MOHD. KAMRAN AFTAB, WHO IS AN EMPLOYEE OF FIRM, WHO VISIT ED FOREIGN COUNTRIES FOR THE BUSINESS OF THE FIRM IS FULLY VERIFIABLE AND TH EREAFTER, HE HAS DECIDED THE ISSUE IN ONE LINE THAT ON OVER ALL CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND FACTS IN DETAILS PLACED BY THE AR OF T HE ASSESSEE, THE DISALLOWANCE IS DELETED. HENCE, IT IS SEEN THAT THI S FINDING OF THE TRIBUNAL IS 3 CORRECT THAT LD. CIT(A) HAS DELETED THE ENTIRE ADDI TION WITHOUT GIVING ANY SPECIFIC FINDING OR ANY COGENT REASON IN HIS ORDER. IT IS ALSO NOTED BY THE ASSESSING OFFICER IN PARA 9 OF THE IMPUGNED TRIBUNA L ORDER THAT BEFORE THE TRIBUNAL ALSO, THE PURPOSE OF FOREIGN TRAVELLING EX PENSES HAS NOT BEEN SUBSTANTIATED. THIS HAS TO BE ACCEPTED THAT IF A PE RSON IS VISITING A FOREIGN COUNTRY FOR BUSINESS PURPOSE, HE WILL GET BUSINESS VISA AND NOT SOCIAL VISA AS IN THE PRESENT CASE. IF A PERSON HAS VISITED A FORE IGN COUNTRY FOR BUSINESS PURPOSE ON A SOCIAL VISA THEN THE BURDEN ON HIM IS HEAVY TO ESTABLISH BY BRINGING COGENT MATERIAL ON RECORD THAT HIS VISITED TO FOREIGN COUNTRY WAS FOR BUSINESS PURPOSE AND WHAT ACTIVITY WAS CARRIED OUT IN THE FOREIGN COUNTRY TO ESTABLISH THAT IT WAS A BUSINESS VISIT. IN THE ABSE NCE OF SUCH EVIDENCE ON RECORD, SUCH VISIT TO FOREIGN COUNTRY CANNOT BE ACC EPTED TO BE A VISIT FOR BUSINESS PURPOSE. IN THE PRESENT CASE, ALL THESE EL EMENTS ARE MISSING AND THEREFORE, THERE IS NO APPARENT MISTAKE IN THE TRIB UNALS ORDER, WHICH COULD BE RECTIFIED U/S 254(2) OF THE ACT. 4. IN THE RESULT, MA OF THE ASSESSEE IS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DAT E MENTIONED ON THE CAPTIONED PAGE. S D / - S D / - [S. K. YADAV] [A. K. GARODIA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 03/02/2016 AKS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR