SH SANJAY SIROHI,GHAZIABAD vs. ADDL. CIT, GHAZIABAD

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ITA 1068/DEL/2014Status: DisposedITAT Delhi17 April 2017AY 2008-096 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal restored the issues of disallowed commission and clubbed salary to the AO. The assessee was granted one more opportunity to produce Veena Mittal and Sarika to substantiate the services rendered and justify the commission and salary payments.

What were the facts?

The assessee's appeal concerns additions made by the AO and confirmed by the CIT(A) regarding disallowed commission paid to Veena Mittal and clubbed salary paid to the assessee's wife, Sarika. The AO disallowed commission for lack of sufficient details and production of the payee, and clubbed salary as the wife was a housewife with no apparent business contribution.

What were the issues?

Whether the commission paid to Veena Mittal was genuine and deductible, and whether the salary paid to the assessee's wife could be clubbed in the assessee's income without sufficient substantiation of her services.

Which sections of the Income-tax Act were involved?

Section 68

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, DELHI “G” BENCH,

Before: SHRI R.K. PANDA & SMT. BEENA A. PILLAI

For Appellant: Shri Satish Kumar Gupta, FCA
For Respondent: Shri S.S. Rana, CIT- DR
Hearing: 10.04.2017Pronounced: 17.04.2017

PER R.K. PANDA, ACCOUNTANT MEMBER:-

1.

This appeal filed by the assessee is directed against the order dated 28.11.2013 of the CIT(A), Muzaffarnagar relating to A.Y. 2008-09.

2.

The grounds raised

by the assessee are as under:

1. That the order passed u/s 143(3) by the learned AO and order passed u/s 250 by the Id CIT(A) was without considering the entire facts in the right perspective.

2. That the learned lower authorities had erred in law and on facts in making the addition of Rs.398275/-by disallowing commission given to Veena Mittal treating as not genuine.

3. That the learned lower authorities erred in law and on facts in making the addition of Rs.5,00,324/- treating the sale of jewellery by his wife Smt. Sarika as unexplained cash credits as per the provisions of section 68 as protective addition in the hands of the appellant.

4. That the learned lower authorities had further erred in law and on facts by clubbing Rs 177000/-given as salary to Smt. Sarika (wife of the appellant) by M/S Sirohi Estate (prop.Sanjay Sirohi) in the hands of appellant.

5.

That the aforesaid order u/s 143(3) and order u/s 250 are illegal, unjust and arbitrary.

6.

That the observations made by the learned AO are inconsistent with the facts and the legal position.

7. Without prejudice to the above grounds the appellant reserves it's right to add or delete one or more grounds.”

3.

The ld. Counsel of the assessee at the time of hearing did not press Ground No. 3 for which the same is dismissed as not pressed.

4.

Ground Nos. 1, 5, 6 and 7 being general in nature, are dismissed.

5. So far as the remaining two grounds are concerned, we find that the assessee is an individual and filed his return of income on 30.9.2008 declaring total income of Rs. 4,86,850/-. The A.O completed the Rs. 15,16,250/- by disallowing the commission of Rs. 3,98,275/- paid to Smt Veena Mitatl and clubbing salary of Rs. 1,77,000/- paid to Smt Sarika, w/o the assessee by M/s Sirohi Estate, which is the proprietary concern of the assessee. The A.O made disallowance of the commission primarily on the ground that the assessee did not appear before him and did not give sufficient details and did not produce Smt. Veena Mittal for his examination. Similarly the A.O clubbed the salary paid to Smt. Sarika on the ground that she being a house wife is not contributing to the business of her husband.

6. In appeal, the ld. CIT(A) upheld the action of the A.O on the ground that the assessee did not produce Smt. Veena Malik before the A.O for examination and the assessee did not furnish the nature of services rendered by the said person. So far as clubbing of salary of Rs. 1,77,000/- is concerned, he observed that in the case of Sarika, w/o assessee, such addition has been confirmed on substantive basis in the hands of the assessee. It is the submission of the ld. AR that given an opportunity, he will produce Smt. Veena Malik before the A.O to substantiate the nature of service rendered by her. So far as the issue relating to clubbing of salary income is concerned, he also requested that the issue may be restored to the file of the A.O.

7.

The ld. DR, while objecting to the arguments advanced by the ld. AR for restoring the issue to the file of the A.O, submitted that despite repeated opportunities given by both the lower authorities, the assessee has not discharge the onus cast on him. Therefore, there is no point in restoring the file to the A.O.

8.

We have considered the rival arguments made by both the sides, perused the orders of the A.O and the ld. CIT(A) and the paper book filed on behalf of the assessee. We have also considered the decisions relied upon by the assessee as filed in the paper book. We find since the assessee did not produce Smt. Veena Malik before the A.O to substantiate the nature of services rendered by her, the A.O disallowed the commission of Rs. 3,98,275/- paid to her. Similarly, the A.O clubbed the salary received by the wife of the assessee Smt. Sarika in the hands of the assessee on the ground that she is a housewife and nothing was produced before him to substantiate that she has contributed to the business carried on by her husband from where she has received salary. We find in the absence of any details before the ld. CIT(A), he confirmed the addition made by the A.O. It is the submission of the ld. AR that given an opportunity, he will produce Smt. Veena Malik before the A.O to substantiate the nature of services rendered by her. Considering the totality of the facts and circumstance of the case and in the interest of justice, we deem it proper to restore the issue to the file of the A.O with a direction to give one more opportunity to Smt. Veena Malik for his examination and substantiate with evidence to his satisfaction regarding the nature of services rendered by her to get such huge commission. Similarly, the assessee is also directed to produce Smt. Sarika before the A.O to substantiate the nature of services rendered by her to get salary from a concern owned by her husband. The A.O is directed to decide the issue afresh and in accordance with law after giving due opportunity of being heard to the assessee. We hold and direct accordingly. Above two grounds raised by the assessee are allowed for statistical purposes.

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