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Income Tax Appellate Tribunal, MUMBAI BENCHES “D”, MUMBAI
Before: SHRI G.S. PANNU (VP) & SHRI RAM LAL NEGI (JM)
O R D E R
PER RAM LAL NEGI, JM
This appeal has been filed by the assessee against the order dated 09.03.2017 passed by the Commissioner of Income Tax (Appeals) (for short ‘the CIT (A)’)-17, Mumbai, for the assessment year 2011-12, whereby the Ld. CIT (A) has partly allowed the appeal filed by the assessee against assessment order passed u/s 143 (3) r.w.s. 147 of the Income Tax Act, 1961 (for short ‘the Act’).
Brief facts of the case are that the assessee company engaged in the business of civil construction and excavation floorings, filed its return of income for the assessment year under consideration declaring the total income of Rs. 1,24,87,833/-. The return was processed u/s 143 (1). Subsequently, the assessment was reopened on receiving of information that the assessee had obtained accommodation entries amounting to Rs. 16,26,322/- from ‘hawala’ dealers. In reply to the notice u/s 148, the assessee requested to treat the return filed earlier as return filed in response to notice u/s 148. Further, in 2 Assessment Year: 2011-12 response notice u/s 143 (2) and 142 (1) the authorized representative of the assessee appeared before the AO, furnished written submissions and discussed the case. Since it was noticed that the assessee had debited Rs. 5,00,708/- towards commission paid, AO asked the assessee to furnished the party wise details of the commissions paid and also directed to explain the nature of services rendered by the persons to whom commissions were paid. In response thereof the assessee submitted that the agents were appointed to carry out the supervision work in respect of various project sites. The assessee also furnished the copies of invoices raised by the agents and the details of tax deducted at source. The assessee further requested to conduct enquiry to verify the genuineness of its claim. However, the AO rejecting the contention of the assessee disallowed the claim of the assessee and added the amount of Rs. 5,00,000/- to the total income of the assessee. In the first appeal, the Ld. CIT(A) confirmed the addition.
Aggrieved by the order of Ld. CIT (Appeals), the assessee has preferred this appeal before the Tribunal on the following effective grounds:-
1. On the facts & circumstances of the case as well as in Law, the Learned CIT (A) has erred in confirming the action of the Learned Assessing Officer in reopening the case, without considering the facts and circumstances of the case.
2. On the facts & circumstances of the case as well as in Law, the Learned CIT (A) has erred in confirming the action of the Learned Assessing Officer in disallowing the claim of Commission expenses of Rs. 5,00,000/- as alleged unsubstantiated payments, without considering the facts and circumstances of the case.” 4. Before us, the Ld. counsel for the assessee submitted that the assessee does not want to press ground no. 1 of the appeal. In view of the request made by the Ld. counsel, ground no. 1 of the appeal is dismissed as not pressed.
3 Assessment Year: 2011-12
Vide ground no. 2, the assessee has challenged the addition of Rs. 5,00,000/- confirmed by the AO rejecting the claim of the assessee. The Ld. counsel for the assessee submitted that the ITAT has dealt with the identical issue in the assessee’s own case for the A.Y. 2013-14 and the ITAT has restored the issue back to the file of AO with the direction to decide the same after taking into account the evidences with the assessee may file in support of its claim of commission expenses as per facts and law. The Ld. counsel submitted that since the issue involved is identical to the assessee’s appeal pertaining to the assessment year 2013-14, the same may be restored to the file of AO for deciding afresh.
On the other hand, the Ld. departmental representative (DR) fairly admitted that the ITAT has been sent the identical issue back to the file of AO for deciding the issue afresh in assessee’s own appeal pertaining to the assessment year 2013-14. 7. We have heard the rival submissions and also gone through the orders passed by the authorities below as well as the order dated 17.07.2018 passed by the coordinate Bench in the assessee’s own case for the A.Y. 2013-14. The coordinate Bench has restored the identical issue to the file of AO in the light of the rival contentions of the parties. The relevant para of the order of the coordinate Bench reads as under:-
After hearing both the parties and perusing the relevant material placed before us and also the perusal of the impugned order, we find that the Ld. CIT (A) has just relied on the preceding year order of the Ld. CIT (A) where the assessee has not challenged the order of Ld. CIT (A) on similar issue. On the same analogy, the Ld. CIT (A) dismissed the appeal of the assessee in the current year also without taking into account the evidences which were filed by the assessee in support of its claim. Under these circumstances, we are of the view that the issue at hand needs to be decided denevo after appreciation 4 Assessment Year: 2011-12 and examination of the evidences which the assessee has filed before the first appellate authority. Accordingly, we restore the issue back to the file of the AO with the direction to decide the same after taking into account the evidences which the assessee may file in support of its claim of commission expenses as per facts and law.