Satyendra Traders Pvt. Ltd., Anand V. The Dy. CIT, Anand Circle, Anand

MA 244/AHD/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5715 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 22-09-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: G C PIPARA
• Section: 143(3); 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER SATENDRA TRADERS PV T. LTD. SURVEY NO. 11/4, OPP. HOTEL 2000, NATIONAL HIGHWAY NO. 8, GOPALPURA, ANAND - 388001 PAN: AAICS5703P (APPELLANT) VS THE ACIT, ANAND CIRCLE , AHMED ABAD (RESPONDENT) REVENUE BY : S H RI MUDIT NAGPAL , SR. D . R. ASSESSEE BY: S H RI G.C. PIPARA , A.R. DATE OF HEARING : 05 - 01 - 2 018 DATE OF PRONOUNCEMENT : 12 - 02 - 2 018 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS MA IS ARISING OUT OF ITA NO. 139/AHD/2014 FOR ASSESSMENT YEAR 2009 - 10 VIDE ORDER DATED 01 ST JUNE, 2017. THE CONTENTS OF THE MISCELLANEOU S APPLICATION OF THE ASSESSEE ARE AS FOLLOWS: - THE APP LICANT HEREIN MOST RESPECTFULLY SHEWETH THAT : 1. THE ABOVE APPEAL WAS DECIDED BY HON'BLE 'B' BENCH OF THE TRIBUNAL CONSISTING OF HON'BLE SHRI R. P. TOLANI, VICE PRESIDENT AND HON'BLE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER BY ORDER DATED 01/06/2017. THE APPEAL WAS PREFERRED BY THE APPELLANT AGAINST THE ORDER OF THE LD. CIT(A) DATED 14/11/2013, WHEREIN THE ADDITION OF RS.27,14,095/ - MADE ON ACCOUNT OF DISALLOWANCE OF COMMISSION AND BROKERAGE EXPENSES, WHICH WAS CONFIRMED BY THE LD. CIT(A) HAS BEEN CHALLENG ED. MA NO . 244 / A HD/20 17 (ARISING OUT OF ITA N O. 139/AHD/2014 ) A SSESSMENT YEAR 20 09 - 10 M A NO. 244 /AHD/2017 {ARISING OUT OF IT A NO. 13 9 /AHD/20 14 } A.Y. 20 09 - 10 PAGE NO SATENDRA TRADERS PVT. LTD. VS. D CIT 2 2. THE FOLLOWING GROUNDS OF APPEAL IN RESPECT OF THE SAID ADDITION WERE TAKEN BY THE APPELLANT IN THE APPEAL BEFORE THE HON'BLE ITAT: - '1. THE LEARNED CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.27,14,095/ - [WRONGLY MENTIONED BY ID. CIT(A) IN HIS ORDER AS RS.22,72,811/ - ] ON ACCOUNT OF DISALLOWANCE OF COMMISSION AND BROKERAGE EXPENSES WITHOUT PROPER APPRECIATION OF FACTS AND COMPREHENSIVE EVIDENCES AVAILABLE ON RECORD AND WHILE MECHANICALLY RELYING UPON THE FINDINGS ARRIVED AT IN THE CIT(A)'S ORDER FOR A.Y.2008 - 09 CONFIRMING SIMILAR ADDITION. IN VIEW OF FACTS AND SUBMISSIONS FILED AS WELL AS LEGAL POSITION, THE IMPUGNED ADDITION OF RS.27,14,095/ - REQUIRES TO BE DELETED. 1.1 THE ID. CIT(A) FURTHER ERRED I N NOT APPRECIATING THE FACT THAT THE APPELLANT HAD FURNISHED COMPREHENSIVE EVIDENCES IN FORM OF NAME, ADDRESS, AMOUNT, PAN AND SERVICES RENDERED BY THE PARTIES TO WHOM THE COMMISSION/BROKERAGE HAD BEEN PAID AND THE SAME HAVING BEEN INDEPENDENTLY CONFIRMED BY THE PARTIES, THE IMPUGNED ADDITION OF RS.27,14,095/ - EVEN OTHERWISE REQUIRES TO BE DELETED. 3. THE HON'BLE TRIBUNAL IN THE ORDER DATED 01/06/2017 WHILE DECIDING THE GROUND OF APPEAL NO. 1 UPHELD THE ACTION OF THE ID. CIT(A) IN CONFIRMING THE ADDITI ON OF RS.27,14,095/ - . 4. THE HON'BLE TRIBUNAL WHILE DECIDING THE GROUND OF APPEAL NO. 1 HAS THROUGH OVERSIGHT NOT CONSIDERED/ADJUDICATED THE GROUND OF APPEAL NO. 1.1 AS REPRODUCED BY THE HON'BLE TRIBUNAL ON PAGE NO. 2 OF ITS ORDER WHICH CLEARLY MENTI ONED THAT THE APPELLANT HAD FILED COMPREHENSIVE EVIDENCES IN FORM OF NAME, ADDRESS, AMOUNT, PAN AND SERVICES RENDERED BY THE PARTIES TO WHOM THE COMMISSION/BROKERAGE HAD BEEN PAID AND WHICH STOOD INDEPENDENTLY CONFIRMED BY THE PARTIES. 5. THE HON'BLE TRIBUNAL WHILE MAKING VARIOUS OBSERVATIONS IN PARA NO. 5 OF THE ORDER HAS ALSO NOT CONSIDERED THE CHART GIVING COMPLETE DETAILS OF COMMISSION/BROKERAGE PAID TO THE SAME PARTIES DURING THE PREVIOUS YEAR RELEVANT TO A.Y.2008 - 09 BV THE APPELLANT COMPANY AND WHICH ISSUE STOOD SET - ASIDE BY THE HON'BLE TRIBUNAL VIDE ITS ORDER DATED 02/02/2015 FOR A.Y.2008 - 09. THE ARGUMENT OF THE A.R. THAT IN THE SET - ASIDE PROCEEDINGS. THE AO HAS FINALLY ALLOWED THE COMMISSION/BROKERAGE EXPENSES TO THE SAME PARTIES IN A.Y.2008 - 09 DULY SUPPORTED BY EVIDENCES HAS ALSO NOT BEEN CONSIDERED THROUG H OVERSIGHT KEEPING IN VIEW THE FACT THAT THE AO WHILE MAKING THE ADDITION IN A.Y.2009 - 10 HAS RELIED UPON THE FINDINGS OF A.Y.2008 - 09. 6. THE ABOVE MENTIONED CHART, ITAT'S ORDER AS WELL AS SET - ASIDE ORDER PASSED BY THE AO HAS BEEN PLACED AT PAGE NO. 51 TO 52, 60 TO 62 AND 56 TO 59 OF THE PAPER BOOK FILED ON 11/01/2017, WHICH WAS REFERRED TO BY THE A.R. DURING THE COURSE OF HEARING. IT IS HUMBLY SUBMITTED THAT THE ABOVE FACTS HAVE NOT BEEN CONSIDERED BY THE HON'BLE TRIBUNAL AND HENCE SINCE MOST OF THE PARTIES BEING THE SAME IN A.Y.2009 - 10 I.E. THE YEAR IN DISPUTE, THE ID. CITCAVS ORDER WAS REQUIRED TO BE SET - ASIDE FOLLOWING THE DECISION OF THE TRIBUNAL IN ITS OWN ORDER FOR EARLIER YEAR I.E. A.Y.2008 - 09 IN CASE OF THE APPELLANT COMPANY ITSELF. 7. THE HON'BLE TRIBUNAL WHILE MAKING VARIOUS OBSERVATIONS IN PARA NO. 5 OF THE ORDER HAS ALSO NOT CONSIDERED THROUGH OVERSIGHT THE EVIDENCES SUCH AS PURCHASE/SALE BILLS AGAINST WHICH COMMISSION/BR OKERAGE HAS BEEN PAID AS WELL AS RETURN OF INCOME OF THE PARTIES AS FILED BEFORE THE LOWER AUTHORITIES AND IN THE PAPER BOOK FILED BEFORE THE HON'BLE TRIBUNAL ON 03/04/2017. THE SAID EVIDENCES HAVE BEEN PLACED AT PAGE NO. 32 TO 193 OF THE PAPER BOOK FILED ON 03/04/2017. 8. THE APPELLANT STATES THAT IN THE LIGHT OF THE ABOVE FACTS, IT IS OUR HUMBLE OPINION THAT SOME MISTAKES APPARENT ON RECORD HAVE CREPT IN THE APPELLATE ORDER DATED 01/06/2017 AND THEREFORE, IT IS RESPECTFULLY SUBMITTED THAT THE APPELLA TE ORDER \ DATED 01/06/2017 MAY PLEASE BE SUITABLY AMENDED/RECTIFIED AND THE GROUND OF APPEAL NO. 1.1 AS REPRODUCED BY THE HON'BLE TRIBUNAL IN PAGE 2 OF ITS ORDER MAY THUS BE ADJUDICATED. 9. SINCE THE ORDER OF THE HON'BLE TRIBUNAL WAS PASSED ON 01/06/ 2017 AND SERVED ON 27/07/2017, THIS APPLICATION IS WITHIN TIME LIMIT PRESCRIBED U/S. 254(2) OF THE ACT. M A NO. 244 /AHD/2017 {ARISING OUT OF IT A NO. 13 9 /AHD/20 14 } A.Y. 20 09 - 10 PAGE NO SATENDRA TRADERS PVT. LTD. VS. D CIT 3 10. IN THE PREMISES AFORESAID, THE APPLICANT PRAYS THAT; (I) THE GROUND OF APPEAL NO. 1.1 MAY PLEASE BE NOW ADJUDICATED BY PASSING A SUITABLE ORDER. (II) THE MISTAKES APPARENT FROM RECORD AS MENTIONED HEREINABOVE MAY ALSO BE RECTIFIED BY SUITABLY AMENDING THE ORDER. (III) THIS HON'BLE TRIBUNAL BE PLEASED TO PASS ANY OTHER ORDER AS IT MAY DEEM FIT TO MEET THE ENDS OF JUSTICE. NEEDLESS TO SAY, FOR THIS ACT OF KINDNESS, THE APPLICANT, AS IN DUTY BOUND, SHALL FOREVER REMAIN GRATEFUL. 2 . THE BRIEF FACT OF THE ISSUE IN MA OF THE ASSESSEE IS THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE YEAR UNDER CONSIDERATION , THE ASSESSING OFFI CER HAS NOTICED THAT AS SESSEE HAS DEBITED COMMISSION AND BROKERAGE EXPENSES OF R S. 72 , 03 , 543/ - TO THE P & L A/C AS AGAINST RS. 22 , 72 , 811/ - CLAIMED IN THE PRECEDING ASSESSMENT YEAR. OUT OF THE TOTAL COMMISSION PAYMENT THE ASSESSING OFFICER HAS ASKED THE ASS ESSEE TO PROVE THE GENUINENESS OF T HE COMMISSION PAYMENT PAID TO 13 PARTIES IN VOLVING AN AMOUNT O F RS . 27 , 14 , 095/ - WHICH THE ASSESSEE FAILED TO PROVE AS ELABORATED IN THE ITAT ORDER DATED 1/06/2017 . 3. DURING THE COURSE OF MA PROCEEDINGS BEFORE US, THE L D. COUNSEL HAS CONTENDED THAT IN ASSESSMENT YEAR 2008 - 09 WHEREIN SAME ADDITION WAS MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(A). THE MATTER WAS SET ASIDE TO THE FILE OF ASSESSING OFFICER AND ASSESSING OFFICER HAS FINALLY DELETED THE ADDIT ION IN ASSESSMENT YEAR 2008 - 09. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE HAS SUPPORTED THE ORDER OF ITAT. 4 . WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD CAREFULLY AND WE HAVE NOTICED VIDE ITA NO. 139/AHD/2014, THE APPEAL OF THE ASSESSEE WAS DISMISSED ON THE FOLLOWING GROUNDS: - 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD CAREFULLY. IN VIEW OF THE DETAILED FINDINGS OF THE LD.CIT(A) WE CONSIDERED THAT THE ASSESSEE HAD FAILED TO DISCHARGE THE BU RDEN CAST ON HIM TO PROVE THE GENUINENESS OF THE EXPENDITURE CLAIMED TOWARDS PAYMENT OF COMMISSION AND BROKERAGE AS NO CONFIRMATION HAS BEEN OBTAINED AND FURNISHED BY THE RECIPIENT OF COMMISSION FROM THE PARTIES TO WHOM THE SALE WAS EFFECTED THROUGH THEM B Y THE ASSESSEEE . THE ASSESSEE HAD FAILED TO ADDUCE COGENT AND CREDIBLE EVIDENCE TO M A NO. 244 /AHD/2017 {ARISING OUT OF IT A NO. 13 9 /AHD/20 14 } A.Y. 20 09 - 10 PAGE NO SATENDRA TRADERS PVT. LTD. VS. D CIT 4 ESTABLISH THE GENUINENESS OF THE COMMISSION PAID. AFTER CONSIDERING THE FACTS REPORTED ABOUT THE PAYMENT MADE TO THE RELATED PERSONS WE HAVE NOTICED THAT THE ASSESSEE HAS E VEN FAILED TO SUBSTANTIATE THAT ANY SERVICES HAS BEEN RENDERED BY MS. RITA SHAH WHO WAS ALSO THE DIRECTOR OF THE COMPANY. SIMILARLY T HE ASSESSEET HAD FAILED TO ESTABLISH JUSTIFICATION AND GENUINENESS FOR THE PAYMENT OF COMMISSION AND BROKERAGE PAYMENT MAD E TO THE OTHER PARTIES. WE OBSERVED THAT THERE WAS NOTHING TO SUGGEST THAT THE RECIPIENT OF SUCH COMMISSION PAYMENT HAD RENDERED ANY SERVICES TO THE ASSESSEE. WE FURTHER OBSERVED THAT THE ONUS WAS ON THE ASSESSEE CLAIMING SUCH DEDUCTION, TO ESTABLISH THAT SUCH PAYMENTS WERE MADE FOR SERVICES RENDERED. WE FIND THAT EVEN THE RELEVANT CONFIRMATION FROM THE PURCHASE PARTIES THAT THE THEY HAVE MADE PURCHASES FROM THE ASSESSEE THROUGH THE RECIPIENTS OF THE COMMISSION WERE NOT FURNISHED AS A PROOF OF RENDERI NG THE SERVICES BY THE PARTIES AS MENTIONED SUPRA IN THIS ORDER. 5.1 IN VIEW OF THE THIS, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF THE LD. CIT(A), THEREFORE, THIS GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 5. WE HAVE NOTICED FOR THE A SSESSMENT YEAR 2008 - 09 THE ITAT HAD RESTORED THE DISALLOWANCE OF RS. 8.46 LACS PERTAINING TO BROKERAGE AND COMMISSION FOR DETERMINATION ACCORDING TO LAW. WE HAVE FURTHER NOTICED THAT ASSESSING OFFICER VIDE ORDER U/S. 143(3) R.W.S. 254 OF THE ACT PASSED ON 04/02/2016 HAD SIMPLY STATED THAT DETAILS OF PURCHASE/SALE AGAINST WHICH BROKERAGE HAS BEEN PAID WERE VERIFIED AND KEPT ON RECORD. WE OBSERVED THAT THE FACTS ON THE BASIS OF WHICH DISALLOWANCE WAS SUSTAINED DURING THE YEAR ARE QUITE DIFFERENT FROM THE AS SESSMENT YEAR 2008 - 09 AS DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE WAS SPECIFICALLY ASKED TO PROVIDE THE INFORMATION/EVIDENCES IN RESPECT OF SERVICES RENDERED BY THE PARTIES TO WHOM THE COMMISSIONS WERE PAID AND TO FURNISH THE CONFIRMATION FROM T HE SALE PARTIES TO DEMONSTRATE THAT SALE WAS EFFECTED THROUGH THE PARTIES TO WHOM THE COMMISSION WERE PAID. THESE FACTS WERE NO T MATERIAL ISSUE IN THE SET A SITE PROCEEDINGS OF ASSESSMENT YEAR 2008 - 09 WHICH IS EVIDENT FROM THE ORDER U/S. 143(3) R.W.S. 254 OF THE ACT PASSED ON 04/02/2016. THE FACTS OF THE CASE OF THE ASSESSE ARE DISTINGUISHABLE FROM THE FACTS OF THE CASE OF THE ASSESSEE FROM ASSESSMENT YEAR 2008 - 09 WHICH ARE ELABORATED AS UNDER: - M A NO. 244 /AHD/2017 {ARISING OUT OF IT A NO. 13 9 /AHD/20 14 } A.Y. 20 09 - 10 PAGE NO SATENDRA TRADERS PVT. LTD. VS. D CIT 5 (I) DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAD C LAIMED COMMISSION AND BROKERAGE EXPENSES OF RS. 72,03,543/ - AS AGAINST RS. 22,72,811/ - CLAIMED IN PRECEDING ASSESSMENT YEAR. (II) DURING THE YEAR IT WAS NOTICED THAT OUT OF THE TOTAL EXPENSES, SOME OF THE PAYMENTS WERE MADE TO THE RELATED PARITIES HUF AND LADIES. (III) DURING THE YEAR THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS IN RESPECT OF COMMISSION/BROKERAGE PAID TO 13 PERSONS AS AGAINST ONLY 3 PERSONS IN THE PRECEDING YEAR. (IV) THE LD. CIT(A) HAD ELABORATED SPECIFICALLY IN DETAIL THAT THE ASSESSIN G OFFICER HAS NOT MADE MECHANICAL ADDITION MERELY RELYING ON PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2008 - 09. THERE WERE 13 PARTIES COMPARED TO 3 PARTIES OF THE PRECEDING YEARS IN RESPECT OF WHOM THE ASSESSEE FAILED TO PROVE THE GENUINENESS OF COMMISSIO N AND BROKERAGE PAYMENT. (V) DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE WAS SPECIFICALLY ASKED TO FURNISH THE CONFIRMATION FROM THE SALE PARTIES TO WHOM THE SALES WERE EFFECTED THROUGH THE PARTIES TO WHOM THE COMMISSIONS WERE PAID. EVEN THE ASSES SEE FAILED TO SUBSTANTIATE THE SERVICES RENDERED BY MS. RITA SHAH WHO WAS THE DIRECTOR OF THE COMPANY (V I) EVEN THERE IS A NO FINDINGS ABOUT THE CONFIRMATION FURNISHED BY THE RECIPIENT OF COMMISSION FROM THE PARTIES TO WHOM THE SALE WAS EFFECTED THROUGH T HEM BY THE ASSESSEE I N THE ASSESSMENT ORDER U/S. PASSED U/S 143(3) R.W.S. 254 OF THE ACT FOR ASSESSMENT YEAR 2008 - 09 IN RESPECT OF COMMISSION PAYMENT TO 3 PARTIES . DURING THE COURSE OF A SSESSMENT PROCEEDINGS THE ASSESSEE WAS SPECIFICALLY CONFRONTED WIT H THE ISSUE OF PROVING THE MATERIAL FACT OF NOT PROVING THE SERVICES RENDERED BY THE PARTIES TO WHOM THE COMMISSION WAS PAID. I N SPITE OF GIVING A NUMBER OF OPPORTUNITIES, THE ASSESSEE FAILE D TO PROVE THE GENUINENESS OF THE COMMISSION PAYMENT AND SUBSTANT IATE THE SERVICES RENDERED BY THEM . EVEN THE ASSESSEE WAS FURTHE R PROVIDED OPPORTUNITIES BY THE LD. CIT(A) IN THE APPELLATE PROCEEDINGS BUT AT THE M A NO. 244 /AHD/2017 {ARISING OUT OF IT A NO. 13 9 /AHD/20 14 } A.Y. 20 09 - 10 PAGE NO SATENDRA TRADERS PVT. LTD. VS. D CIT 6 SECOND STAGE ALSO THE ASSESSEE COULD NOT PROVE THE GENUINENESS OF THE COMMISSION PAYMENT AND THE KIND OF SE RVICES RENDERED BY T HE PARTIES TO WHOM THE COMMISSION S WERE PAID . AT THE THIRD STAGE D URING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, THE AS SESSEE WAS ASKED SPECIFICALLY TO PROVIDE THE INFORMATION/EVIDENCES IN RESPECT OF SERVICES RENDERED BY THE PA RTIES TO WHOM THE COMMISSIONS WERE PAID . IT WAS FURTHER BROUGHT TO HIS NOTICE THAT AT ALL THE THREE STAGE IT HAD FAILED TO FURNISH THE CONFIRMATION FROM THE SALE PARTIES TO DEMONSTRATE THAT SALE WAS EFFECTED THROUGH THE PARTIES TO WHOM THE COMMISSION WERE PAI D . AFTER CONSIDERING THE ABOVE FACTS AND CIRCUMSTANCES WE CONSIDER THAT ALL THE DETAILS FILED BY THE ASSESSEE HA VE BEEN CONSIDERED AND THERE IS NO MISTAKES APPARENT ON RECORD WHICH CAN BE RECTIFIED AND IT IS AGAIN RETREATED THAT AT ALL THE THREE STAGE IT H AD FAILED TO FURNISH THE CONFIRMATION FROM THE SALE PARTIES TO DEMONSTRATE THAT SALE WAS EFFECTED THROUGH THE PARTIES TO WHOM THE COMMISSION WERE PAID . IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY MERIT IN THE M. A. OF THE ASSESSEE, THEREF ORE, THE SAME IS DISMISSED. 6. IN THE RESULT , THE MISC. APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 12 - 02 - 201 8 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER AC COUNTANT MEMBER AHMEDABAD : DATED 12 /02 /2018 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. M A NO. 244 /AHD/2017 {ARISING OUT OF IT A NO. 13 9 /AHD/20 14 } A.Y. 20 09 - 10 PAGE NO SATENDRA TRADERS PVT. LTD. VS. D CIT 7 BY ORDER/ , / ,