SMT. SHACHI AGARWAL,JAIPUR vs. JCIT, JAIPUR

PER SHRI KUL BHARAT, J.M.

This appeal by the assessee is directed against the order of ld. CIT (A)-2,

Jaipur dated 29.01.2013 pertaining to assessment year 2009-10. The assessee has

raised the following grounds of appeal:-

“1. In holding that assessee could not proved that there was an agreement for sale of residential house as there is no such entry in cash book or elsewhere in accounts book and could not produced Shri Ram Bharosi Meena and thereby confirming the addition of Rs. 5,00,000/- made under section 68 of Income tax Act, 1961.

2 ITA No. 272/JP/2013 Smt. Shachi Agarwal vs. Joint Commissioner of Income Tax was withdrawn vide Circular No. 7 of 22nd October, 2009 and as such, commission paid upto 22nd October 2009 was allowable.

2.2 the commission was paid to foreign nationals outside India and therefore, payment was not chargeable to tax in the hands of non-resident receipt as held by ITAT Mumbai Bench in the case of ACIT vs. Anchor Health & Beauty Card (P) Ltd. (2012) 143 TTJ 566 (Mum) and ITAT Jaipur Bench in the case of ACIT vs. Modern Insulators Ltd. AM (2011) 140 TTJ (Jp) 715.

assessment and the assessment under section 143(3) of the Income Tax Act, 1961

(hereinafter referred to as the ‘’Act’’) was framed vide order dated 13.12.2011. While

framing the assessment, Assessing Officer made additions on account of

unexplained cash u/s 68 of the Income Tax Act, 1961, and disallowance made on

account of non deduction of tax on commission paid and disallowance of DEPB

claimed.

after considering the submissions, partly allowed the appeal deleting the amount on

account of disallowance of credit and reduced the additions made on account of

disallowance made u/s 40 (ia) of the Act from Rs. 16,48,510/- to 8,89,323/-. Further

aggrieved, the assessee has preferred the present appeal.

submissions as made before the ld. CIT (A) and submitted that the ld. CIT (A) was

not justified in making the addition. He further reiterated the submission as made in

the written submission. He submitted that before AO he had produced photo copy of

sale agreement correspondence letters/ notices copy of ration card of Shri Ram

3 ITA No. 272/JP/2013 Smt. Shachi Agarwal vs. Joint Commissioner of Income Tax

Bharosi Meena. He submitted that whatever he could furnish in support of the claim

that the amount of Rs. 5,00,000/- was received from Shri Ram Bharosi Meena as

advance was furnished to the authorities below. He drew our attention to the extract

of cash book entry of Rs. 5,00,000/- dated 06.01.2009. He submitted that the

finding of ld. CIT(A) is contrary to the records.

submitted that the ld. CIT (A) has passed reasoned order. He submitted that

incumbent was upon the assessee to prove the genuineness of transactions identity

and credit worthiness of the creditor.

and gone through the orders of the authorities below. We find that in support of the

claim, the assessee has furnished copy of the sale agreement notices issued by the

advocates and also the extract of cash book wherein a transaction dated 06.01.2009

is reflected. However we find that ld. CIT(A) has stated that there is no balance in

cash book for introduction of Rs. 5,00,000/-.The case of the assessee is that this

amount was received as advance from Shri Ram Bharosi Meena, a copy of the sale

agreement dated 06.01.2009 is enclosed in paper book acknowledge the advance

Therefore, in our considered view, ld. CIT(A) ought to have verified the veracity of

such claim by summoning Shri Ram Bharosi Meena. Therefore, we deem it proper in

the interest of justice to restore this issue to the file of the Assessing Officer to

decide the issue afresh in view of the written submissions and evidences filed by the

assessee and also make an enquiry by summoning Shri Ram Bharosi Meena, the

alleged purchaser of the property. This ground of the assessee is allowed for

statistical purposes.

4 ITA No. 272/JP/2013 Smt. Shachi Agarwal vs. Joint Commissioner of Income Tax

disallowance of Rs. 8,89,323/-. As regards the commission made to the foreign

national, the ld. Counsel for the assessee reiterated the submissions made before

the ld. CIT (A). The ld. Counsel for the assessee submitted that the assessee

submitted a copy of the bills relating to commission before the Assessing Officer.

For the sake of the identity, the copy of Passport was submitted to the Assessing

Officer. He relied on the decision of Hon’ble Delhi High Court in the case reported at

246 CTR (Del) 40, and ITAT Jaipur Bench decision in the case of ACIT vs.

Modern Insulators Ltd. A.M (2011) 140 TTJ (jp) 715.

and gone through orders of the authorities below. The assessee has furnished bills

of payment of commission demonstrating that the commission was paid to Foreign

National. It is also stated that the other payment was made to the Indian National

whose services was taken for the purpose of translation. It is the case of the

assessee that the ld. CIT(A) has accepted the commission paid to the translator on

which tax was deducted but has not accepted that the payment to the Foreign

National. We find that the assessee has furnished invoice raised by the foreign

national in support of the services rendered by them. However, the assessee has not

furnished any evidence relating to the nature of service rendered by the Foreign

Nationals outside India. The Assessee has not produced any evidence proving,

employment and rendering of service. In the absence of such evidence, it is not

established that any service was rendered. Therefore, we deem it proper in the

5 ITA No. 272/JP/2013 Smt. Shachi Agarwal vs. Joint Commissioner of Income Tax interest of justice to restore this issue to the file of AO for decision afresh. The AO

would give sufficient opportunities to the assessee for placing evidence on record.

The ground no. 3, this ground is general in nature and requires no 10.

adjudication.

This ground of the assessee is partly allowed for statistical purposes. 11.

Order pronounced in the open court on 18/05/2017

Sd/- Sd/- ( HkkxpUn ½ (dqy Hkkjr) (BHAG CHAND ) ( KUL BHARAT ) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member

Jaipur Dated:- 18/05/2017 Ganesh Kumar आदेश की प्रतिलिपि अग्रेषित@ब्वचल वf जीम वतकमत वितूंतकमक जवरू

vkns'kkuqlkj@ By order,

सहायक पंजीकार@ Aेेपेजंदज. त्महपेजतंत