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Income Tax Appellate Tribunal, MUMBAI BENCH “D”, MUMBAI
Before: SHRI C.N. PRASAD, HONBLE & SHRI MANOJ KUMAR AGGARWAL, HONBLEShri Devendra Jain Shri Purushottam Kumar
Date of Hearing : 23.11.2017 Date of pronouncement : 16.02.2018 O R D E R PER C.N. PRASAD (JM) 1. This appeal is filed by the assessee against the order of the Ld.CIT(A)–2, Thane dated 22.04.2016 for the Assessment Year 2008-09.
The only issue in the appeal of the assessee is in respect of confirming the action of the Assessing Officer in disallowing of commission of ₹.30,55,000/- paid to Nova Corporate Service Pvt. Ltd. and Akon Management Consultancy and treating them as bogus expenditure u/s. 69C of the Act.
(A.Y: 2008-09) Mrs. Prajwal Arvind Kamath 3. Briefly stated facts are that assessee an individual filed return of income on 29.09.208 declaring income of ₹.4,31,21,098/-. The assessment was completed u/s. 143(3) determining the income at ₹.4,61,76,090/-. Assessing Officer while completing the assessment disallowed commission payment of ₹.30,55,000/- to Akon Management Consultancy and Nova Corporate Service Pvt. Ltd. Matter was carried to Ld.CIT(A) and further to the Tribunal and the Tribunal by order dated 23.01.2013 set aside the matter to file of the Assessing Officer. Set-aside assessment was passed u/s. 143(3) r.w.s. 254 of the Act on 20.02.2014 once again disallowing the commission as the assessee could not produce the parties, could not have filed the income tax return of those parties and the Assessing Officer also placed reliance on the report of the DDIT(Investigation) which said to have stated by the parties mentioned namely Nova Corporate Service Pvt. Ltd. and Akon Management Consultancy to whom the commission was paid by the assessee are bogus in nature. Ld.CIT(A) sustained the disallowance stating that in spite of specific direction by ITAT assessee could not furnish the Income tax returns to prove the genuineness of the commission payment.
Assessee is an individual engaged in the business of marketing consultants and technical support and order execution in industrial capital equipment business. Assessee procures orders from companies
(A.Y: 2008-09) Mrs. Prajwal Arvind Kamath engaged in Petrochemicals, Refinery, Power, Oil & Gas Industries like Reliance, Essar, IOCL etc., and in turn places the orders with technically and commercially suitable companies like Flowserve, KSB, V.A.Tech, Kirloskar, Dresser, Rand etc. For all these laisoning with big corporates and execution of orders till delivery, Assessee needs services of technical and non-technical persons and pays commission to them. Learned Counsel for the assessee submits that Assessee had received total commission income of ₹.9,87,40,040/- and also paid commission of ₹.6.62.81.485/- to various parties. In fact. Assessee was felicitated by Income Tax Department for being the best taxpayer in individual capacity.
Learned Counsel for the assessee submits that Commission paid to Nova Corporate Service Pvt. Ltd, ₹.15,55,000/- and Akon Management Consultancy ₹,15,00,000/- out of total commission expenses of ₹.6,62,81,485/-, was disallowed by Assessing Officer because of non- service of notice u/s 133(6) of the Act. He submits that Assessee filed various documentary evidences like proof of payment by banking channels, MOU with payees, invoices, service tax levied by payees, TDS done by assessee out of payments etc. & relied on various case laws before the CIT (A) for the proposition that mere non-service of notices u/s.133(6) cannot be taken against it.
(A.Y: 2008-09) Mrs. Prajwal Arvind Kamath 6. Learned Counsel for the assessee further submits that ITAT by order dated 23.01.2013 set aside the order for fresh examination by Assessing Officer after giving opportunity to the Assessee. In the fresh assessment proceeding, the Assessing Officer insisted upon the copies of income tax return of payees. Assessee has no control over the payees and hence copies of income tax return could not be filed by Assessee. However, department could have very well internally could have obtained these records. He submitted that the Ld. Assessing Officer again disallowed the commission payment by order dated 20.02.2014, relying on the report of DDIT(Inv.) dated 30.06.2009 in which statement of Mr.Sandeep Sitani is alleged to have been recorded on 22.06.2008 where he stated to have provide accommodation entries to various persons. Learned Counsel for the assessee submits that neither this report was provided to the Assessee, nor an opportunity to cross examine was provided and therefore he submitted that the Assessment Order dated 20.02.2014 is bad in law as held in following cases: (a) Andaman Timber Industries v. CCE (SC) [Appeal No. 4228 of 2016]. (b) H R Mehta v. ACIT [72 taxmann.com 110 (Bombay)] (c) Kishanchand Chellaram v. CIT [125 ITR 713] He further submitted that the said DDIT(Inv) report is prior to the date of passing original assessment order. The department never relied on the said report before the CIT(A) or ITAT in the 1st round.
(A.Y: 2008-09) Mrs. Prajwal Arvind Kamath 7. Ld. Counsel for the assessee further inviting our attention to the order of the co-ordinate 'F' Bench of Mumbai Tribunal in the case of M/s. Vision v. ACIT in dated 13.04.2016 Submitted that the ITAT had considered the said report of DDIT(Inv) and statement of Mr. Sandeep Sitani and relying on the judgment of Bombay High Court in the case of CIT v. Nikunj Eximp Enterprises (P) Ltd. (2013) [372 ITR 619] (Bom) and Honorable Gujarat High Court in the case of CIT Mundra Port and Sez. Ltd. [45 taxmann.com 361] deleted the disallowance of commission paid to Nova Corporate Services Pvt. Ltd, which is one of the payee's in Assessee's case.
Ld. Counsel for the assessee strongly relies on the judgment of Honorable Bombay High Court in the case of CIT v. Nikunj Eximp Enterprises (P) Ltd. [372 ITR 619] and Honorable Gujarat High Court in the case of CIT v. Mundra Port and Sez. Ltd. [45 taxmann.com 361 and coordinate Bench of Mumbai Tribunal in the case of M/s. Vision v. ACIT (ITA no. 8501/Mum/2010) to plead that commission of Rs. 30,55,000/- be held to be allowable.
The Ld. Counsel for the assessee alternatively without prejudice to the above submitted that if the entire commission is not allowed a reasonable estimate of 12.5% of commission may be disallowed.
(A.Y: 2008-09) Mrs. Prajwal Arvind Kamath 10. Ld.DR vehemently supported the orders of the authorities below.
We have heard the rival submissions, perused the orders of the authorities below. The sole reason for disallowance of commission paid by the assessee to Nova Corporate Service Pvt. Ltd. at ₹.15,55,000/- and Akon Management Consultancy at ₹.15,00,000/- is that the assessee could not produce the parties for verification and the notice issued u/s.133(6) were returned unserved. When the matter reached the Tribunal, the Tribunal observed that since huge commission was paid to the private limited companies and they are assessed to tax there is no problem for the assessee to produce the Income Tax Returns. In the course of the Assessment Proceedings and pursuant to the order of the Tribunal, assessee could not file/furnish Income Tax Returns of the payees but it was submitted by letter dated 06.02.2014 that the commission was paid through account payee cheques, tax was also deducted at source and all the necessary compliances were taken care of. It was submitted that bonafide and genuineness of the transactions cannot be doubted. Assessee produced the details and supporting evidences i.e. invoices, MOU, Bank Statements, TDS Certificates, Pan Nos, Service Tax No., of the payees etc., but the parties could not be produced as it is beyond the control of the assessee. It was also submitted that as far as the assessee is concerned commissions paid
(A.Y: 2008-09) Mrs. Prajwal Arvind Kamath could be held as non verifiable but they are not bogus. It was also contended that assessee has offered substantial income to tax and it is a reality of business that one has to sell out substantial amount to procure the business as well as to maintain relations. The submissions of the assessee have been brushed aside by the Assessing Officer for the only reason that assessee could not produce parties for verification.
Assessing Officer also placed reliance on the DDIT(Investigation) report in the set-aside proceedings. This report though available while completing assessment under section 143(3) of the Act, the Assessing Officer nowhere referred to such report nor the report was given to the assessee, nor any cross objection was offered to the assessee on the information obtained by DDIT(Investigation). Therefore, at this stage the Revenue could not have placed reliance on the DDIT(Investigation) report without furnishing said report to the assessee even in the set aside proceedings.
We also find that the Coordinate Bench in the case of M/s. Vision. v. ACIT in ITA.No. 8501/Mum/2010 dated 13.04.2016 while dealing with similar situation wherein the assessee namely M/s. Vision made payment to Nova Corporate Service Pvt. Ltd. towards professional and technical services and the Coordinate Bench taking into consideration the very same report of DDIT(Inv.) held that in fact Nova Corporate Service Pvt.
(A.Y: 2008-09) Mrs. Prajwal Arvind Kamath Ltd. exists and is assessed to tax. It was also the finding of the Tribunal that, in that case there is no dispute that the payments were made to Nova Corporate Service Pvt. Ltd. for professional services rendered and the payments were made by cheques and that Nova Corporate Service Pvt. Ltd. has shown all these receipts from the assessee in its return of income and has offered the same for tax. Therefore, if Nova Corporate Service Pvt. Ltd. exists and is assessed to tax, it is not difficult to the Assessing Officer to find out from the concerned Assessing Officer whether Nova Corporate Service Pvt. Ltd. offered any income from the assessee in its return of income. The Assessing Officer has not made any efforts to find out whether the submissions of the assessee that Nova Corporate Service Pvt. Ltd had rendered services to the assessee and assessee has paid commission to it after deducting TDS etc. As rightly contended by the assessee that the Revenue could have easily find out from the concerned Assessing Officer or the Assessing Officer could have issued summons u/s. 131 of the Act to the parties when they are not appearing for the notices issued u/s. 133(6) of the Act. Without doing any of these exercises, the Assessing Officer simply treated the commission payment as bogus simply because the assessee could not produce the parties before him for verification. We find that this is the only reason for disallowance apart from relying on DDIT(Investigation) report. In our considered view the Assessing Officer failed in all respects to examine the (A.Y: 2008-09) Mrs. Prajwal Arvind Kamath contentions of the assessee. He could have made independent enquiries to cull out the truth and should have come to the conclusion that the payments made by the assessee to these parties are bogus, none of these exercises has been done by the Assessing Officer. In the case of M/s. Vision it is proved that Nova Corporate Service Pvt. Ltd. is providing professional and technical services, if that is the case, we fail to understand why Nova Corporate Service Pvt. Ltd. could not have provided professional or technical services to the assessee. It is an admitted fact, accepted by this Tribunal that Nova Corporate Service Pvt. Ltd assessed to tax and it is an existing entity. Therefore, in such case the payment of commission to Nova Corporate Service Pvt. Ltd by the assessee cannot be termed as bogus but can be seen as non verifiable expenditure. Similarly, in the case of Akon Management Consultancy no enquires were conducted nor the assessee could able to furnish the Income Tax Returns, however assessee produced addresses of the parties PAN No., Bank Statements, TDS certificates, Invoices, MOU, Service Tax Nos, etc., in both these parties, with this information the Assessing Officer could have easily find out whether the parties are in existence or not, no such exercise has been done. Assessee may not have produced the parties for various reasons but since there is sufficient evidences on records i.e. Invoices, MOU, Bank Statements, TDS certificates, PAN No., Service Tax Nos., etc., to show that the parties have rendered services to the assessee and (A.Y: 2008-09) Mrs. Prajwal Arvind Kamath the assessee made payments through cheques by deduction TDS etc., all these evidences cannot be brushed aside simply because the parties were not produced.
We also find that out of the gross receipts of ₹.10 crores earned by the assessee, assessee had incurred expenditure to the extent of ₹.6.5 Crores towards commission etc., out of which only ₹.30,55,000/- have been disallowed from two parties as stated above for not producing them before Assessing Officer for verification. The assessee had in fact offered ₹.4,31,21,098/- as income during this Assessment Year. The substantial portion of the gross receipts have been offered to tax by the assessee.
In the circumstances explained above, we are of the considered view that the entire commission cannot be treated as unexplained expenditure u/s. 69C of the Act. However, since the assessee himself agreed for certain percentage of commission for disallowance and taking all the facts and circumstances into consideration we are of the considered view that 10% of the commission of ₹.30,55,000/- be disallowed to meet the ends of the justice. Thus we direct the Assessing Officer to restrict the disallowance to 10% of ₹.30,55,000/- and recompute the income of the assessee.
(A.Y: 2008-09) Mrs. Prajwal Arvind Kamath 16. In the result, appeal of the assessee is partly allowed.
Order pronounced in the open court on the 16th February, 2018.