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Income Tax Appellate Tribunal, BENCH “I”, MUMBAI
Before: SHRI B.R.BASKARAN & SHRI PAWAN SINGHShri G.S. Pikala (AR) Shri V. Justin (DR) PER PAWAN SINGH:
Order Under Section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee under section 253 of Income Tax Act is directed against the order of Ld. Commissioner of Income-Tax (Appeals)-5, Mumbai, [for short the ld. CIT(A)] dated 22.08.2016 for Assessment Year 1996-97. The assessee has raised the following grounds of appeal:
1) Learned CIT (Appeals) erred in facts in dismissing the appeal and upholding the penalty levied by the Assessing Officer. 2) The Learned CIT (Appeals) erred in not noticing the correct factual position that the first assessment order dated 31/12/1998, did not indicate the satisfaction of the officer for levying the penalty and also further did not indicate whether the same was for filing inaccurate particulars or concealment as required by law. 3) The Learned CIT (Appeals) erred in law and in facts concluding that the penalty notice dated 31/12/98 specified whether the same was being issued for inaccurate particulars or for concealment by mainly putting a tick mark relevant clause was not specified.
4) The Learned CIT (Appeals) erred in law not noticing the fact that the assessment order dated 31/12/98 was set aside by the ITAT vide order in ITAT No. 141/M/2002 dated 25/4/2006 and hence fresh satisfaction would be required to be recorded when making reassessment or giving effect to the said ITAT Order failing which the fresh penalty proceedings would be ab-initio void. 5) The Learned CIT (Appeals) erred in fact not following the law in following Judgments :- 1) Prabhat Solvent Extraction Industries Vs. ACIT Cir. 1 Rajkot in Assessment Year 1992-93 2) Commissioner of Income Tax & Anr. Vs. S. V. Angidi Chettiar (Se) (1962) 44 ITR 739 3) Ranchhodbhai Haribhai Jadav Vs. Assistant Commissioner of Income Tax (1999) 153 CTR 250 (Guj) High Court 6) The Learned CIT (Appeals) erred in law in not following the Karnataka High Court Order reported in [2013] 359 ITR 565 (Kar) Commissioner of Income Tax and another Vs. Manjunatha Cotton and Ginning Factory which has been followed by the jurisdictional Tribunal in various orders which was filed with Learned CIT(Appeals). 7) On merits Learned CIT (Appeals) ignored the fact penalty proceedings are different from assessment proceedings and assessee had given the orders of the DRT and High Court indicating the counter parties Spectrum Synthetics and RSL Industries were not interrelated with the assessee and both parties were in liquidation hence could not be produced nor evidence obtained from them. 8) On merits it is submitted that assessee had submitted all his information and also submitted copies of the orders of DRT and High Court of the counter parties. Hence it is submitted there was no concealment of income as indicated by the assessee. But merely inaccurate particulars of income as the assessee was unable to produce counter parties who had already close down at the time of first hearing of Hon'ble ITAT. Hence it is prayed penalty may be quashed.
We have heard the Ld. Authorized Representative (AR) of the assessee and Ld. Departmental Representative (DR) for the Revenue and perused the material available on record. At the outset of hearing the ld. AR of the assessee submits that the Assessing Officer levied the penalty on two disallowances. The disallowances consist of Rs. 35,86,519/- on account of 2 commission on sale and second disallowances on account of travelling expenses of Rs. 1,40,774/-. The addition of commission payment was made on estimated basis and the second estimation of travelling expenses has been deleted by the Tribunal in quantum assessment proceeding. It was submitted that once the main addition in the appeal on the quantum assessment has been deleted, no penalty order would survive on such disallowance, further the other addition/disallowance was based on estimation on which the penalty is not leviable. In support of his submission, the Ld. AR of the ld. AR of the assessee filed copy of various decisions on record. The ld. AR of the assessee has filed copy of decision of Delhi Tribunal in Aditya Chemicals Ltd. Vs. ITO in dated 21/11/2017, decision of Mumbai Tribunal in Mrs Indrani Sunil Pillai Vs. ACIT in ITA No. 1339/Mum/2016 dated 19/01/2018, decision of Rajkot Tribunal in Prabhat Solvent Extraction Industries Vs. ACIT in ITA No. 285/Rjt/2007 dated 23/12/2010 and decision of Mumbai Tribunal in M/s Tata Communications Transformation Ltd. Vs. DCIT in ITA No. 3108/Mum/2016 dated 21/02/2018. On the contrary, the Ld. DR for the Revenue submits that the main addition on the basis of penalty was levied has been deleted.
We have considered the submission of Ld. Representatives of both the parties and perused the record. We have noted that the submissions of ld. AR of the assessee are factually contradictory. The perusal of assessment 3 order reveals that the assessee-company claimed the travelling expenses of Rs. 4,22,322/- on account of foreign travel of Mrs. Gauri Sheth W/of Vice- President Mr. Dinesh Sheth and Consultant Rajendra Shaha. The Assessing Officer disallowed the 1/3rd of travelling expenses. In fact, travelling expenses were disallowed on adhoc basis. We have further noted that the disallowance on account of commission on sale (commission expenses) was deleted by Tribunal in ITA No. 5549/Mum/2010 dated 11.10.2017, with the following observations:
“7. We have considered the rival submissions of the parties and have gone through the orders of authorities below. In order to constitute an expenditure falling within the scope of section 37(1) of the Act, the assessee (payer) must fulfil the conditions viz. (i) that the expenditure should not be in the nature described under section 32 to 36, (ii) it should have been incurred in the Financial Year, (iii) it should in respect of business which was carried out by the assessee and profit of the said business should be assessed, (iv) it should not be in the nature of personal expenses of the assessee, (v) it should have been made wholly and exclusively for the purpose of business and (vi) it should be in the nature of capital expenditure.
We have seen that in the set-aside proceeding, the assessee was asked to file the evidence of profit earned out of the transaction with Radhika Synthetics and the affidavit and other evidence to prove that transactions were not with sister concern. As per the Assessing Officer no such evidences was furnished by the assessee. The Assessing Officer again sustained the additions. Before the First Appellate Authority, the assessee furnished written submissions as recorded by Ld. CIT(A) in para 4 of the impugned order. On the basis of written submission of the assessee and the other written communication of the assessee, the learned Commissioner (Appeals) observed that the assessee claimed to have submitted the details of commission paid to Spectrum Synthetics Private Ltd., copy of details of PAN Number, address of the parties along with the statement showing complete dealings with the Radhika Synthetics Ltd. It was further observed that assessee vide its letter dated 05th Nov 2001 furnished the details of transaction, PAN Number of Radhika Synthetics Ltd. and the fact that Radhika Synthetics Ltd. was in liquidation and the assessee was not in a position to produce any party before Assessing Officer. It was also observed that assessee had contended that the Directors of 4
Radhika Synthetics Ltd. have no relationship whatsoever with the Directors of assessee company. On the basis of above referred observation, the learned Commissioner (Appeals) concluded that initially the claim of assessee was rejected by the Assessing Officer that assessee failed to prove the nexus of commission payment with the business of assessee or that the same had no link with the sale and purchase of fabric during the year. The original Assessment Order was upheld by Commissioner (Appeals) on 8th November 2001. The Tribunal set-aside the order with the direction to the assessee to state all the relevant facts and the evidences for examination by the Assessing Officer. The assessee has not been able to prove the business expediency for commission payment. The assessee has not been able to establish that it did not have any relationship with the Spectrum Synthetics Ltd., who was paid commission. As assessee failed to adduce evidence and confirmation regarding the nature of services rendered by Spectrum Synthetics Pvt. Ltd. with confirmation, thus, the action of Assessing Officer was confirmed by learned Commissioner (Appeals). We have noted that the contention of learned AR of the assessee before us as well as before Commissioner (Appeals), was that Radhika Synthetics Ltd. has gone in liquidation and no person from such concern is available. Further, none of the person from the Spectrum Synthetics Pvt. Ltd. is available as all the assets of said concern were attached by the DRT, Mumbai. The assessee furnished PAN Number and the details of transactions with Radhika Synthetics Ltd. The assessee also furnished the PAN Number and other details of commission payment to the Spectrum Synthetics Ltd. The Director of assessee company Shri Shivshankar Mishra have filed his affidavit, inter alia deposing therein that they have no relationship with the Radhika Synthetics Ltd. We have perused the contents of affidavit of Shri Shivkumar Mishra, Director of assessee-company. Shri Shivkumar Mishra contended in his affidavit that the assessee company have dealing with Radhika Synthetics Ltd. through its Director Shri Manohar Khambekar and that said dealings were through their broker M/s Spectrum Synthetics Ltd. It was further contended in the affidavit that that neither the family members of Seth family, who were promoters of assessee-company nor any of the present Directors have any relationship in the nature of uncle or nephew with Radhika Synthetics Ltd. The affidavit does not contain any reference regarding the relationship with the Directors of Spectrum Synthetic Ltd. As per verification on the list of documents/paper book signed by S.S. Mishra, the affidavit was filed before Commissioner (Appeals). The perusal of order of Commissioner (Appals) reveals that there is no reference in the order about filing of this affidavit. We have further noticed that the assessee has placed on record the details of transaction of assesse-company with Radhika Synthetic Ltd. (page n. 92, 104 to 106). Further, the certificate of RSL Industries Ltd. (successor of Radhika Synthetic Ltd.) dated 05.11.2001. The assessee has also furnished the PAN Number and address of the Radhika Synthetic and Spectrum Synthetic Pvt. Ltd. In our view, the assessee-company has discharged his primary onus. The 5 AO has not made any independent enquiry nor bring any incriminating material on record. The assessee-company has shown the profit of Rs. 45,61,005/- out of the transaction with Radhika Synthetic Ltd., which was introduced by Spectrum Synthetic Ltd. Further, the assessee has made the business transaction of Rs.13,64,76,885/- with Radhika Synthetic Ltd. The lower authority has not disputed the transaction of assessee with Radhika Synthetic Ltd.
In order to constitute an expenditure falling within the scope of r section 37(1) of the Act, the payer (assessee) must fulfil the conditions viz. (i) that the expenditure should not be in the nature described under section 32 to 36, (ii) it should have been incurred in the Financial Year, (iii) it should in respect of business which was carried out by the assessee and profit of the said business should be assessed, (iv) it should not be in the nature of personal expenses of the assessee, (v) it should have been made wholly and exclusively for the purpose of business and (vi) it should be in the nature of capital expenditure. In our view, the assessee has discharged the primary onus lies upon it by furnishing the nature of business, details of transaction and the expediency of business. Further, the assessee has claimed initially that assessee-company was new in the line of business fabrics. Hence, Spectrum Synthetics Pvt. Ltd. was acting as their agent. The Assessing Officer has not brought any material about the relationship of assessee-company with the company with whom assessee made business or about the agent company. Further, the Assessing Officer has not made any independent enquiry either from official liquidator or from any other agency about the status of Radhika Synthetic Ltd. or about Spectrum Synthetics Pvt. Ltd., when these companies were under liquidation or in attachment by DRT, Mumbai. In view of above discussion, the assessee has discharged his primary onus to prove that commission was paid wholly and exclusively for the purpose of business. The Revenue authority failed to bring any material on record to show it otherwise. Thus, the grounds of appeal
no. 1 to 3 raised by assessee are allowed.”
4. Considering the decision of Tribunal that the addition on account of disallowance of commission payment has already been deleted, therefore, the penalty levied on disallowance of commission payment would not survive. The second disallowance consists of foreign travel expenses.
Admittedly, the disallowance of foreign travel expenses was made on adhoc basis. It is settled law that no penalty is leviable on the disallowance/addition made on mere estimation basis. Thus, in view of our 6 above observations, the penalty levied by Assessing Officer is deleted. The assessee has raised certain other legal grounds of appeal, the ld. AR of the assessee has not argued anything in respect of various other ground of appeal, even otherwise, we have already granted full relief to the assessee.
Hence, the discussion on those ground of appeal have become academic.
In the result, appeal filed by assessee is allowed. Order pronounced in the open court on 9th day of March 2018.