Dy. Commissioner of Income Tax-1, Lucknow V. Karunesh Agarwal, Lucknow

MA 28/LKW/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5701 (ITAT-LUCKNOW)
• Duration Of Justice: 5 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 21-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K VISHWAKARMA
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER M. A NO. 28/LKW/2017 [ARISING OUT OF ITA NO.182/LKW/2015] ASSESSMENT YEAR: 2010 - 11 DCIT RANG E I LUCKNOW V. KARUNESH AGARWAL D - 7, CHINHAT INDUSTRIAL AREA DEVA ROAD LUCKNOW T AN /PAN : AFJPA1407M (APP LIC ANT) (RESPONDENT) APP LIC ANT BY: SHRI R. K. VISHWAKARMA, D.R. RESPONDENT BY: SHRI RAKESH GARG, ADVOCATE DATE OF HEARING: 15 12 201 7 DATE OF PR ONOUNCEMENT: 01 201 8 O R D E R PER P ARTHA SARATHI CHAUDHURY, J.M : T HIS MISCELLANEOUS APPLICATION IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE TRIBUNAL DATED 17/5/2016 , WITH THE SUBMI SSION THAT THE TRIBUNAL IN THE CASE OF SHRI KARUNESH AGARWAL F OR ASSESSMENT YEAR 2010 - 11 ON THE ISSUE OF CLAIM OF COMMISSION OF RS.47,94,000/ - HAS OBSERVED THAT IN RESPONSE TO NOTICE ISSUED UNDER SECTION 133(6) OF THE ACT BY THE ASSESSING OFFICER, COMMISSION AGENTS HAVE CONFIRMED RECEIPT OF COMMISSION AND PAID TAX ON SUCH COMMISSION AND, THEREFORE, ONCE RECEIPT OF COMMISSION HAS BEEN ACCEPTED IN THE HANDS OF THE RECIPIENT , THE PAYMENT OF THE SAME CANNOT BE DISALLOWED IN THE HANDS OF THE PAYER. THE REVENUE CONTENTS THAT THIS FINDING OF THE TRIBUNAL THOUGH ACCEPTED, HO WEVER, THE TRIBUNAL HAS NOT GIVEN ANY FINDING ON THE OBSERVATION OF THE LD. CIT(A) THAT ASSESSEE HAVING FAILED TO DEDUCT TAX AT [ M.A NO.28/LKW/2017 ] 2 SOURCE UNDER SECTION 194H ON COMMISSION PAYABLE WAS HIT BY MISCHIEF OF SECTION 40(A)(IA) OF THE ACT AND, THEREFORE, THE RE IS A M ISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL WHICH MAY BE RECALLED FOR FRESH DECISION. 2 . WE HAVE PERUSED THE CASE RECORD AND CORRESPONDING ITAT ORDER AND WE FIND THAT ON THE ISSUE OF CLAIM OF COMMISSION, A DETAILED SPEAKING ORDER HAS BEEN PASSED AND THE CLAI M OF THE REVENUE WHETHER COMMISSION PAYABLE WAS HIT BY MISCHIEF OF SECTION 40(A)( IA) OF THE ACT AND ALSO THE OBSERVATIONS OF THE LD. CIT(A) WAS CONSIDERED BY THE AUTHOR WHILE DISPOSING OF THE APPEAL . SINCE THE APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER OF THE LD. CIT(A), THE AUTHOR TAKING INTO ACCOUNT THE OBSERVATIONS AND FINDINGS OF THE LD. CIT(A) HAS GIVEN A CATEGORICAL FINDING ON THE ISSUE INVOLVED THEREIN. THERE IS NO MISTAKE APPARENT FROM RECORD AND ALL THE GROUNDS OF APPEAL WERE ADJUDICATED A ND EVEN THE SUBMISSIONS OF THE LD. D.R. AND THE LD. A.R. OF THE ASSESSEE WERE TAKEN ON RECORD. WE ARE, THEREFORE, OF THE CONSIDERED VIEW THAT THERE IS NO MISTAKE APPARENT ON RECORD. ACCORDINGLY, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMI SSED. 3 . IN THE RESULT, MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 08 / 0 1/ 201 8 . SD/ - SD/ - [ T.S. KAPOOR ] [PARTHA SARATHI CHAUDHURY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 8 TH JANUARY , 201 8 JJ: 1812 [ M.A NO.28/LKW/2017 ] 3 CO PY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR