UNITED LINER AGENCIES ( STEVEDORES), V. DCIT CEN CIR 39,

MA 89/MUM/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3607 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-04-2010
• Appeal Filed By: Assessee
• Bench Allotted: I
• Assessment Year: 1998-1999
• Appeal Filed On: 11-02-2010
• Court: TRIBUNAL
• Department Lawyers: L K AGRAWAL
• Assessee Lawyers: Y P TRIVEDI; VASHA DALAL
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F BEFORE SHRI R.S.SYAL (AM) & N.V. VASUDEVAN (JM) M.A. NO. 89/MUM/2010 ARISING OUT OF M.A. NO. 455/MUM/2009 ARISING OUT OF I.T.A.NO. 2660/MUM/2002 (ASSESSMENT YEAR : 1998-9 9) UNITED LINER AGENCIES (STEVEDORES) KAISER-I, HIND BUILDING 4 TH FLOOR, CURRIMBHOY ROAD BALLARD ESTATE MUMBAI-400 001. VS. DCIT CENTRAL CIRCLE 39 ROOM NO. 32(1) AAYAKAR BHAVAN M.K. ROAD MUMBAI-400 020. APPELLANT RESPONDENT PAN/GIR NO. : AAAFU1731E ASSESSEE BY : SHRI Y.P. TRIVEDI & MS. VASHA DALAL DEPARTMENT BY : SHRI L.K. AGRAWAL ORDER PER N.V. VASUDEVAN, JM :- MISCELLANEOUS APPLICATION NO. 455/MUM/2009 WAS NOT PRESSED AND THE SAME IS DISMISSED AS NOT PRESSED. 2. M.A. NO. 89/MUM/2010 THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSE SSEE PRAYING FOR RECTIFICATION OF CERTAIN APPARENT MISTAKES IN THE T RIBUNAL ORDER. ONE OF THE ISSUE IN THE AFORESAID APPEAL WAS WITH REGARD T O DISALLOWANCE OF COMMISSION EXPENSES OF RS. 1,71,49,967/-. THE ASSES SEE, WHO IS IN THE BUSINESS OF STEVEDORING CLAIMED THE AFORESAID COMMI SSION AS DEDUCTION WHILE COMPUTING TOTAL INCOME. COMMISSION HAD BEEN P AID TO A SISTER CONCERN. IN A SURVEY CONDUCTED AT THE PREMISES OF THE ASSESSEE. ONE SHRI S.K. PARIKH, CHIEF ACCOUNTANT AND FINANCE MANA GER OF THE ASSESSEE HAD GIVEN A STATEMENT THAT NO SERVICES WERE RENDERE D BY THE SISTER CONCERN FOR WHICH COMMISSION WAS PAID. LATER ON THI S STATEMENT WAS UNITED LINER AGENCIES (STEVEDORES) 2 RETRACTED BY HIM. NEVERTHELESS, REVENUE AUTHORITIES DISALLOWED THE DEDUCTION ON ACCOUNT OF COMMISSION FOR THE REASON T HAT THE ASSESSEE FAILED TO SUBSTANTIATE BY EVIDENCE THE NATURE OF SE RVICES RENDERED BY THE SISTER CONCERNED, FOR WHICH COMMISSION WAS PAID. IN THIS MISCELLANEOUS APPLICATION, THE ASSESSEE HAS SUBMITTED THAT ABOVE ORDER OF THE TRIBUNAL SUFFERS FROM FOLLOWING APPARENT ERRORS :- THIS HON'BLE TRIBUNAL FAILED TO APPRECIATE IN TAKIN G COGNIZANCE OF THE FOLLOWING FACTS WHICH WERE URGES AT THE TIME OF HEARING :- A) THAT THE SAID COMMISSION AMOUNT IS ALREADY TAXED IN THE HANDS OF THE SISTER CONCERNS AND IF IT IS DISALLOWE D IN THE HANDS OF THE APPLICANT, IT WOULD TENTAMOUNT TO DOUB LE TAXATION. IN FACT, THERE IS NO LOSS TO THE REVENUE IF THE SAID AMOUNT IS ALLOWED AS DEDUCTION IN THE HANDS OF THE APPLICANT. B) NEITHER THE ASSESSING OFFICER NOR THE LEARNED CIT(A ) OR EVEN THE TRIBUNAL CARED TO EXAMINE AND FIND OUT AS TO WH AT SERVICES WERE RENDERED BY THE SISTER CONCERNS. IN T HE ABSENCES OF SUCH EXAMINATION, TO ARRIVE AT THE CONC LUSION THAT NO SERVICES WERE RENDERED BY THE SISTER CONCER NS WOULD LEAD TO APPARENT MISTAKE IN THE ORDER; C) THE TRIBUNAL RELIED UPON THE FINDINGS OF THE LOWER AUTHORITIES WHO WERE SOLELY GUIDED BY THE STATEMENT OF SHRI S.K. PARIKH, CHIEF ACCOUNTANT/FINANCE MANAGER OF TH E APPLICANT RECORDED ON 5.10.2000 UNDER SECTION 133A OF THE ACT, WHO STATED THAT SERVICES WERE NOT RENDERED BY THE SISTER CONCERNS WITHOUT APPRECIATING THE FACT THAT SAID STATEMENT WAS RETRACTED BY HIM VIDE HIS AFFIDAVIT M ADE ON 12.1.2002. IN THE SAID AFFIDAVIT, HE HAS SPECIFICAL LY MENTIONED THAT HIS STATEMENT WAS GIVEN AFTER ARDUOU S SURVEY OPERATION LASTING TILL LATE NIGHT, WHEN HE W AS COMPLETELY EXHAUSTED AND HAD BECOME NERVOUS. COPY O F THE SAID AFFIDAVIT IS ENCLOSED HEREWITH AS ANNEXURE B . D) THE TRIBUNAL FAILED TO CONSIDER THE SAID AFFIDAVIT OF SHRI S.K. PARIKH WHICH ALSO WOULD REVEAL MISTAKE APPARENT ON THE FACE OF RECORD, MORE SO IN VIEW OF THE JUDGMENT OF SUPREME COURT IN THE CASE OF MEHTA PARIKH & CO. VS. CIT, 3 0 ITR 181. E) THE TRIBUNAL ALSO COMMITTED A MISTAKE OF NOT CONSID ERING THE CONTENTION OF APPELLANT THAT FOR RENDERING SERV ICES SAID PARTIES HAS EMPLOYED ADEQUATE STAFF TO WHOM PROPER SALARIES WERE PAID. UNITED LINER AGENCIES (STEVEDORES) 3 F) THE COMMISSION PAYMENTS MADE TO SOME OF THE SISTER CONCERNS WERE ALLOWED IN EARLIER ASSESSMENT YEARS A T THE ASSESSMENT STAGE WHICH HAS BECOME FINAL. 3. LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE STAND OF THE ASSESSEE AS CONTAINED IN THE MISCELLANEOUS APPLICAT ION. LEARNED DR RELIED ON THE ORDER OF THE TRIBUNAL. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS WE FIND THAT NONE OF THE REASONS GIVEN IN THE MISCELLANEOUS APPLICATION CAN BE THE BASIS TO ALLOW THE DEDUCTION OF COMMISSION EXPENSES CLAIMED BY THE ASSESSEE. ONUS WAS ON THE ASSESSEE TO ESTABLISH THE NATURE OF SERV ICES RENDERED BY THE SISTER CONCERN FOR WHICH COMMISSION WAS PAID. ADMIT TEDLY, THERE IS NO SUCH EVIDENCE. THE ASSESSEE MERELY SEEKS TO RELY ON CERTAIN CIRCUMSTANCES AND ON THAT BASIS SEEKS TO CLAIM DEDU CTION ON ACCOUNT OF COMMISSION PAID. THESE CIRCUMSTANCES ARE NOT ENOUGH TO ALLOW THE CLAIM OF THE ASSESSEE. THE TRIBUNAL WAS RIGHT IN DISALLOW ING THE CLAIM OF THE ASSESSEE FOR DEDUCTION ON ACCOUNT OF COMMISSION. W E THEREFORE DO NOT FIND ANY MERIT IN THIS MISCELLANEOUS APPLICATION AN D THE SAME IS DISMISSED. ORDER HAS BEEN PRONOUNCED ON 30 TH DAY OF APRIL, 2010. SD/- (R.S. SYAL) ACCOUNTANT MEMBER SD/- (N.V. VASUDEVAN) JUDICIAL MEMBER DATED : 30 TH APRIL, 2010 COPY TO : 1. THE ASSESSEE 2. THE RESPONDENT 3. THE CIT(A)-CONCERNED. 4. THE CIT, CONCERNED. 5. THE DR CONCERNED, MUMBAI 6. GUARD FILE BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI PS