SURESHKUMAR GHEWARCHAND HUNDIA,MUMBAI vs. ACIT CC 14, MUMBAI

आयकर आयकर अपीलीय आयकर आयकर अपीलीय अपीलीय अिधकरण अपीलीय अिधकरण अिधकरण, मुंबई अिधकरण मुंबई मुंबई “ई” खंडपीठ मुंबई खंडपीठ खंडपीठ मेमेमेमे खंडपीठ Income-tax Appellate Tribunal -“E”Bench Mumbai सव�ी राजे��,लेखा सद�य एवं अमरजीत �सह, �याियक सद�य Before S/Sh.Rajendra,Accountant Member and Amarjit Singh,Judicial Member आयकर अपील सं./I.T.A./4324/Mum/2012,िनधा�रण िनधा�रण वष� वष� /Assessment Year: 2007-08 िनधा�रण िनधा�रण वष� वष� आयकर अपील सं./I.T.A./4325/Mum/2012,िनधा�रण िनधा�रण वष� वष� /Assessment Year: 2008-09 िनधा�रण िनधा�रण वष� वष� Sureshkumar Ghewarchand Hundia ACIT – CC-14 14/A, Bharta Nagar, Opp. Shalimar Mumbai. Vs. Cinema, Grant Road,Mumbai-400 007. PAN:AAQPH 7289 E (अपीलाथ� /Appellant) (��यथ� / Respondent) राज�व क� ओर से / Revenue by: Shri Vishwas Munde-DR अपीलाथ� क� ओर से /Assessee by: S/Shri Shailesh Parmar & Pratik Jain -ARs सुनवाई क� तारीख / Date of Hearing: 24/03/2017 घोषणा क� तारीख / Date of Pronouncement: 31/03/2017 लेखा लेखा सद�य लेखा लेखा सद�य सद�य राजे�� सद�य राजे�� राजे�� केकेकेके अनुसार राजे�� अनुसार अनुसार/ PER RAJENDRA, AM- अनुसार Challenging the orders dated 15.03.2012 of the CIT(A)- 37,Mumbai,the Assessee has filed appeals for the above mentioned two Assessment Years(AY.s).As the issues are common in both the appeals,so,we are adjudicating them by passing a common order.

2.The appeals were filed late.In his affidavit,the assessee has stated that there was delay of 28 days in filing the appeals,that he was advised complete bed-rest by the doctor.In his application for condoning the delay he has requested that there was reasonable cause for not filing the appeals on time.Before us,the Authorised Representative (AR) reiterated the same arguments which are part of the affidavit and application of the assessee.The Departmental representative (DR) left the issue to the discretion of the bench. We have perused the application and affidavit and hold that assessee was prevented by a reasonable cause for not filing the appeals on time.Therefore, we condone the delay. 3.Assessee,an individual,is engaged in the business of import and export of gold, silver and bullion and connected activities.The details of dates of filing of returns, returned incomes, dates of assessment etc. can be summarised as under: AY ROI filed on Returned income Assessment Date Assessed income 2007-08 31.10.2007 Rs.1.17 crores 27.12.2010 Rs.1.42 crores 2008-09 06.10.2008 Rs.73.06 lakhs 27.12.2010 Rs.1.01 crores

4324&4325/M/12(07-08&08-09) Sureshkumar Ghewarchand Hundia

I.T.A./4324/Mum/2012,AY. 2007-08:

3.1.Effective Ground of appeal (GOA) is about addition of Rs.25.00 lakhs. During the assessment proceeding the AO found that the assessee had claimed the expenses, being one time payment of commission, of Rs.25.00 lakhs, that the assessee had made the said payment to M/s. Nova Scotia (Nova), that it did not deduct tax at source for the payment made, that as per the provisions of section 194H of the Act,he was required to do so.Invoking the provisions of section 40(a)(ia) of the Act, the AO asked the assessee to explain as to why an amount of Rs.25lakhs should not be disallowed for non deduction of tax.After considering the submission of the assessee,dt. 1.11.2010, the AO held that the payment made to Nova was shown as commission in the books of accounts, that the term commission or brokerage as defined in section 194H of the Act was inclusive definition.Referring to the order for the AY. 2006-07 the AO, observed that similar disallowance was made by his predecessors u/s. 40(a) (ia) of the Act, that the order was confirmed by the First Appellate Authority (FAA). Finally, he made an addition of Rs.25 lakhs to the total income of the assessee.

3.2.Aggrieved by order of the AO the assessee preferred an appeal before the FAA. Before him, it was argued that the impugned sum of Rs.25 lakhs was a one-time premium that it was not commission. After considering available material the FAA referred to his predecessor for earlier AY. Following the same he dismissed the appeal filed by the assessee.

3.3.Before us,the Authorised Representative(AR)stated that the recipient , Nova had paid the taxes on the said amount, that provisions of section 40(a)(ia) were not applicable in such cases.He referred to the case of Navubhaj Chavda (ITA/592/RJT/2014-A.Y.09-10, dt.20. 2. 2017)and Ansal Landmark Township (P.) Ltd.(279CTR384).The Departmental Representa - tive(DR)stated that there was no evidence that recipient had paid taxes or was assessed to tax in India. In his rejoinder, the AR stated that Nova was assessed to tax in India with the DCIT (Intl.Taxn.) Circle-1 (2)(1), Mumbai.He also furnished the details of PAN of Nova alongwith the Form No.16A. We find that papers filed before us,by the assessee,were not available to the AO/FAA besides both the authorities did not have the benefit of judgement of Ansal Landmark Township (P.) Ltd.(supra),of the Hon'ble Delhi High Court Therefore, we are of the opinion that in the interest of justice matter should be restored back to AO for fresh adjudication. He is directed to afford a reasonable opportunity of hearing to the assessee and decide the issue afresh after

4324&4325/M/12(07-08&08-09) Sureshkumar Ghewarchand Hundia considering the material produced before us and case laws relied upon by the assessee. Effective Ground of appeal is decided in favour of the assessee in part. ITA/4325/Mum/2012,AY-2008-09 : 4.Following our order for earlier year we restore back the matter to the file of AO for fresh adjudication as facts of the case under consideration are identical to facts for AY 2007-08. As a result appeals filed by the assessee stand partly allowed. फलतः िनधा�रती �ारा दािखल क� गई अपील� अंशतः मंजूर क� जाती ह�. Order pronounced in the open court on 31st March , 2017. आदेश क� घोषणा खुले �यायालय म� �दनांक 31 माच�, 2017 को क� गई । Sd/- Sd/- (अमरजीत �सह / Amarjit Singh ) (राजे�� / Rajendra) �याियक सद�य / JUDICIAL MEMBER लेखा लेखा सद�य सद�य / ACCOUNTANT MEMBER लेखा लेखा सद�य सद�य मुंबई Mumbai; �दनांक/Dated : 31 .03.2017. Jv.Sr.PS. आदेश क� क� �ितिलिप �ितिलिप अ�ेिषत अ�ेिषत/Copy of the Order forwarded to : आदेश आदेश आदेश क� क� �ितिलिप �ितिलिप अ�ेिषत अ�ेिषत 1.Appellant /अपीलाथ� 2. Respondent /��यथ� 3.The concerned CIT(A)/संब अपीलीय आयकर आयु#, 4.The concerned CIT /संब आयकर आयु# 5.DR “ ” Bench, ITAT, Mumbai /िवभागीय �ितिनिध, खंडपीठ,आ.अ.�याया.मुंबई 6.Guard File/गाड� फाईल स�यािपत �ित //True Copy// आदेशानुसार/ BY ORDER, उप/सहायक पंजीकार Dy./Asst. Registrar आयकर अपीलीय अिधकरण, मुंबई /ITAT, Mumbai.