PRAVIN KUMAR HETAMSARIA,RANCHI vs. ASSISTANT COMMISSIONER OF INCOME TAX, ASANSOL

We have heard the arguments of both the sides and also perused the relevant material available on record. It is observed that the commission paid to Shri Shyam Sunder Hetamsaria amounting to Rs.9,80,300/- and the commission paid to Smt. Dulari Devi Hetamsaria amounting to Rs.9,48,250/- were disallowed by the Assessing Officer in the assessment completed under section 143(3) vide an order dated 13.02.2015. On appeal, the ld. CIT(Appeals) deleted the disallowance of commission of Rs.9,80,300/- paid to Shri Shyam Sunder Hetamsaria by relying on the Assessment Year: 2012-2013 Pravin Kumar Hetamsaria Tribunal’s order dated 25.07.2018 passed in in assessee’s own case for A.Y. 2010-11, wherein a similar payment of commission to Shri Shyam Sunder Hetamsaria was held to be genuine. As further observed by the ld. CIT(Appeals) in his impugned order, the ITAT, however, did not give relief to the assessee in respect of payment of commission made to Smt. Dulari Devi Hetamsaria and accordingly the similar disallowance made on account of commission paid to Smt. Dulari Devi Hetamsaria was confirmed by him.

At the time of hearing, the ld. Counsel for the assessee has placed on record the Tribunal’s order dated 31.01.2019 passed in in assessee’s own case for A.Y. 2011-12. As noted in the said order, a similar disallowance made on account of commission to the same two payees was deleted by the Tribunal in assessee’s own case for A.Y. 2010-11 vide its order dated 25.07.2018 passed in ITA No. 314/KOL/2015. It appears that there is some contradiction as regards the final outcome of the similar issue in assessee’s own case for A.Y. 2010-11 as noted by the ld. CIT(Appeals) in his impugned order and as noted by the Tribunal in its order dated 31.01.2019 (supra) and in the absence of copy of the Tribunal’s order dated 25.07.2018 (supra) for A.Y. 2010-11, we are unable to resolve this contradiction. We, therefore, set aside the impugned order of the ld. CIT(Appeals) on this issue and restore the matter to the file of the Assessing Officer for ascertaining the exact position from the Tribunal’s order dated 25.07.2018 for A.Y. 2010-11 and give proper relief to the assessee accordingly.

In the result, the appeal of the assessee is treated as allowed for statistical purposes. Order pronounced in the open Court on February 15, 2019. Sd/- Sd/- (A.T. Varkey) (P.M. Jagtap) Judicial Member Vice-President (KZ) Kolkata, the 15th day of February, 2019 Assessment Year: 2012-2013 Pravin Kumar Hetamsaria Copies to : (1) Pravin Kumar Hetamsaria, C/o. M/s. Pratik Automobiles, Patel Chowk, Old Hazaribagh Road, Ranchi-834 001