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Income Tax Appellate Tribunal, KOLKATA“D” BENCH, KOLKATA
Before: SHRI S.S.VISWANETHRA RAVI, HON’BLE & DR.A.L. SAINI, HON’BLE
PerDr. Arjun Lal Saini, A. M.
The captioned appeal filed by the Revenue, pertaining to Assessment Year 2006-07, is directed against the order passed by the ld. Commissioner of Income Tax (Appeals)-XIV, Kolkata, dated 24.08.2013, which in turn arises out of an order passed by the Assessing Officer (AO), under section 143(3)/154 of the Income Tax Act, 1961, ( In short,’the Act’), Dated 29.04.2008.
The brief facts qua the assessee is that regular assessment U/s 143(3) was made on 29.04.2008 at a total income of Rs.6,05,490/-. Later on it was found by the Assessing Officer that Profit and Loss Account for the year ended 31.03.2006 revealed that the assessee earned income towards commission and other receipts at Rs.51,63,969/-. The above income included commission income from
2 ITA No.2648/Kol/2013 SuchismitaMajumder Indian Oil Corporation Ltd, of Rs.30,83,646/-. However, scrutiny of TDS certificate issued the IOC ltd. For the period from 2005-06 revealed that the assessee had received income to the tune of Rs.34,05,364/- against TDS of Rs. 1,78,042. It appeared to the Assessing Officer that commission income to the tune of Rs. 3,21,718/- ( Rs.34,05,364 – Rs.30,83,646) was not accounted for in the Profit and Loss Account for the Year ended 31.03.2006 leading to under assessment of income. As it was a mistake apparent from record therefore the Assessing Officer passed a rectification order U/s 154 of the I.T. Act. In the said rectification order, the Assessing Officer made addition of Rs. 3,21,718/- being commission received from IOC Ltd, which was not included in the profit and loss account.
Aggrieved from the order of the Assessing Officer, the assessee filed an appeal before the ld.CIT(A), who has deleted the addition made by Assessing Officer observing the followings: “5.2.In my considered view, the action of the A.O. of invoking the provisions of Sec.154 of the Act cannot, by any means, be maintained properly because the original assessment in the instant case passed u/s. 143(3) of the Act was correct and there is no outstanding tax dues to the assessee/appellant. I hold that the A.O.'s action of raising a demand of Rs. 1,24,810/- incorrectly by invoking the provisions of Sec. 154 of the Act in the case of the appellant is not in accordance with law. The A.O. seems not to have applied his mind properly in examining the substance and merit of the instant case of the assessee while passing the mistaken order u/s. 154 of the Act. Moreover, the A.O. has also committed a mistake in making the status of the appellant under rectification. I uphold that the order passed by A.C.I.T, Circle-28, Kolkata, U/s 143(3)/154 of the Act is based on bias/prejudice and one sided. If the contention of the A.O. is accepted, then the assessee will be suffering by paying tax doubly on the same amount while in the corresponding assessment year no TDS was claimed by theassessee. Naturally, if the order passed by the A.O. u/s. 154 of the Act is confirmed, then theassessee have to pay twice on a single amount which, is devoid of natural justice. Hence, the amount of Rs. 1,24,810/- which the A.O. has incorrectly raised as demand by provoking the provisions of Sec. 154 of the Act, is deleted. Accordingly, the Ground No.1 of the instant appeal succeeds and the appellant gets relief of Rs.1,24,810/-.”
3 ITA No.2648/Kol/2013 SuchismitaMajumder 4. Not being satisfied with the order of the ld.CIT(A), the Revenue is in further appeal before us and has taken the following grounds of appeal:-
“1.Whether on the facts and circumstances of the case, the ld.CIT (A) was right in law as well as on facts in deleting the addition of undisclosed commission income by holding that commission was disclosed in A.Y. 2005-06, though TDS was claimed in A.Y. 2006-07. 2.Whether on the facts and circumstances of the case, the ld.CIT(A) was right in law as well as on facts in not considering the fact that income is assessable in the year, in which corresponding TDS is claimed. 3.That the appellant craves leave to add,alter,modify,delete or include any of the grounds of appeal”.
5.Ld. DR for the Revenue has submitted before us that the assessee had disclosed the Commission Income in A.Y. 2005-06, though the TDS was claimed by the Assessee in the A.Y. 2006-07, which is wrong. The income should be assessable in the year in which corresponding TDS was claimed. In the Instant case there is a complete mismatch therefore this issue should be remit back to the file of the AO for statistical purposes to rectify the mistake.
5.1 Ld AR for the assessee has submitted that assessee claimed the TDS in the A.Y. 2006-07 and disclosed the details by way of Annexure-B before the ld CIT (A). The Ld. AR also submitted before us that in computation of taxable income, in the ledger account of Assessment Year 2005-06, the net commission earned during the year was Rs.8,58,985/- which includes alleged amount but no TDS was claimed on the alleged amount, and assessee submitted details before the ld CIT(A) through Annexure-C. However, the ld AR could not produce before us Annexure-B and Annexure-C, to see truth of the matter. 5.2 The Ld. DR for the Revenue has submitted that assessee never filed any details before the ld.CIT(A). Annexure –B and Annexure-C had not been filed by the Assessee. There is a complete mismatch between the Commission Income earned and TDS claimed, that is TDS pertains to
4 ITA No.2648/Kol/2013 SuchismitaMajumder A.Y. 2006-07 whereas Commission income pertains to A.Y. 2005-06. There is no any correlation between the commission income and TDS. Ld CIT (A) did not give any findings as to whether TDS pertains to Commission earned in A.Y. 2005-06. Therefore, this issue requires examination at the end of the Assessing Officer. 5.3 Having heard the rival submissions, perused the material available on record, we are of the view that there is merit in the submissions of the Departmental Representative (DR), as the propositions canvassed by the ld DR for the Revenue are supported by the facts narrated by him. As he pointed out that the assessee has submitted Annexure-B and Annexure-C before the ld CIT(A), but the ld CIT(A) did not work on them to find out the relationship between commission earned and TDS. The ld CIT(A) failed to establish the nexus between commission earned and TDS. The Commission earned pertains to A.Y. 2005-06 whereas TDS pertain to A.Y. 2006-07. How the assessee can take the benefit of TDS which pertains to different Assessment Years. Hence there is a lot of ambiguity between the Assessment order and the order passed by the ld CIT(A). Therefore, we are of the view that this issue requires a fresh examination at the end of the Assessing Officer. We direct the Assessing Officer to examine the TDS for A.Y. 2006-07 and to see whether it pertains to Commission Earned in A.Y. 2005-06 or not and to examine the other relevant documents of the assessee to ascertain the correctness of the claim. Accordingly, we remit the case back to the file of the AO to examine the issue as per the direction given (supra).
5.4 In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in open court on 21/12/2016. Sd/- Sd/- (S.S.VISWANETHRA RAVI) (DR. A.L. SAINI) Judicial Member Accountant Member Dated : 21/12/ 2016. Pkm.Sr.PS/-
5 ITA No.2648/Kol/2013 SuchismitaMajumder आदेशक���त�ल�पअ�े�षत / Copy of Order Forwarded to:- 1. अपीलाथ�/Appellant-ACIT, Cir-28, Kolkata 2. ��यथ�/Respondent-Suchismita Majumder 3. संबं�धतआयकरआयु�त/ Concerned CIT 4.आयकरआयु�त- अपील / CIT (A) 5. �वभागीय��त�न�ध,आयकरअपील�यअ�धकरणकोलकाता/ DR, ITAT, Kolkata 6. गाड�फाइल / Guard file.
By order/आदेशसे,
सहायक पंजीकार आयकर अपील�य अ�धकरण,कोलकाता