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ORDER
Per N. K. Saini, AM:
This is an appeal by the Department against the order dated 25/01/2011 of CIT(A)-II, Delhi on the following grounds of appeal: 1. “On the facts and circumstances of the case, the ld. CIT(A) has erred in deleting the addition of Rs. 1,01,16,360/- (including service tax of Rs. 9,36,360/-) on account of accommodation bills issued by M/s Swen Television Ltd., which was controlled by an admitted entry provider Sh. S.K. Gupta to the assessee.
2. On the facts and in the circumstances of the case, the ld. CIT(A) has erred in admitting additional evidence in the form of rate card without according any opportunity to the Assessing Officer under Rule 46A(2).
3. On the facts and in the circumstances of the case the ld. CIT(A) has erred in ignoring the non production of the rate card and TRP rating of the telecaster M/s Jhankar TV as also of any evidence to establish any payment made by M/s Swen Television Ltd. to the said telecaster in respect of telecasting of the assessee’s advertisement on its TV channel. 4. (a) The order of the CIT(A) is erroneous and not tenable in law and on facts. (b) The appellant craves leave to add, alter or amend any/all of the grounds of appeal before or during the course of the hearing of the appeal.”
The facts of the case in brief are that the assessee filed the return of income on 28/11/2006 declaring total income of Rs. 14,45,29,530/-, later on the case was selected for scrutiny. In this case a search and seizure action was conducted on 12/12/2006 at the business and residential premises of Shri S.K. Gupta along with the various concerns in which he and his family members were interested. 2.1 During the course of search certain sale bills issued by M/s Swen Television Ltd., one of the company of Shri S.K. Gupta Group to the assessee had been found by the search party. Those sale bills had been issued for sponsorship charges amounting to Rs. 1,01,16,306/- and the same were seized.
3. The Assessing Officer made the addition of the said amount by considering it an accommodation entry. The relevant discussion has been made in para 2 to 4 of the assessment order dated 29/12/2008. For the cost of repetition the same is not reproduced herein. 4. Being aggrieved the assessee carried the matter to the ld. CIT(A) who deleted the addition by observing in para 19 to 24 of the impugned order are as under: 19. “In the instant case admittedly bills are issued from M/s Swen Television Ltd. for Rs. 91,80,000/-. M/s Swen Television Ltd. is in existence also and is assessed by the same Assessing Officer who is Assessing Officer of the appellant. M/s Swen Television Ltd. has confirmed of having issued these bills. In none of the statements recorded by Shri S.K. Gupta it has been stated that the bills issued in the name of Swen Television Ltd. to the appellant are in the nature of accommodation bills. Confirmation has also been issued by said Sh. S.K. Gupta which was filed before Assessing Officer confirming that bills are raised by M/s Swen Television Ltd. for the agency services rendered by them. 20. The Assessing Officer has not given any such finding in his order that Swen Television Ltd. has not offered this income in its books of account. The Assessing Officer of the appellant is the Assessing Officer of M/s Swen Television Ltd. also and in the case of Swen Television Ltd. also assessment has been completed for this year under scrutiny. The Assessing Officer has assessed the income so offered by M/s Swen Television Ltd. on substantive basis. 21. The payment of these bills have been made by the appellant through account payee cheques. The total payment is of Rs. 1,01,16,360/- out of which Rs. 9,36,360/- pertains to service tax and TDS of Rs. 1,13,508/- has also been made and deposited to the credit of Central Government. Thus, the payment is also verifiable independently.
The only issue now remains to be verified as to whether or not services has actually been rendered by M/s Swen Television Ltd. for which the bills under reference have been raised and payments made and as to whether or not the advertisement has actually been released by Jhankar T.V. It is seen that Assessing Officer has raised this query wherein the Assessing Officer has asked the appellant to submit a certificate from the Telecaster i.e. Jhankar T.V. that they have telecasted their programme on the relevant dates and also they have received payments against all these programmes. The Assessing Officer has not made any specific mention in the assessment order as to whether such details were produced or not. As it is not clear from the order as to whether the proof of service rendered i.e. whether M/s Swen Television Ltd. has actually worked as agent for release of advertisement of the appellant on Jhankar T.V. or not, for which the payment under reference has been made, the appellant was asked specifically during appellate proceedings to furnish all the details. It is seen that M/s Swen Television Ltd. while submitting the bills for every month has enclosed the proof of release of the advertisement of the appellant on Jhankar T.V., daily twice. The appellant has also produced before the Assessing Officer the CD containing the text of advertisement released on Jhankar TV. A copy of telecast certificate issued by Hamar Samay TV News Network Pvt. Ltd. to Swen Television Ltd. (A/c Almondz Global Securities Ltd.) has also been filed. It is claimed and certified that this certificate was produced before the Assessing Officer also during assessment proceedings. From perusal of these certificates it is noticed that in programs namely SMS BUZZ & Music Highway the release has been made twice everyday for 30 seconds each. Thus, the proof of release of advertisement on Jhankar TV and services rendered by M/s Swen Television Ltd. as agent is also established. (Incidentally the appellant filed the rate card also which is in the form of presentation which tallies with the rates for which the bills has also been issued). In the circumstances, in my opinion the appellant has discharged its onus of proving that the payment to Swen Television Ltd. was towards actual release of advertisement on Jhankar T.V. for which Swen Television Ltd. has worked as Agent.
It is, therefore, held that there is no ground to hold that the expenses claimed by the appellant in the name of Swen Television Ltd. amounting to Rs. 91,80,000/- are not genuine. Therefore, the disallowance made by the Assessing Officer cannot be upheld. Thus, ground nos. 1, 2, 2.2 and 2.3 are allowed in favour of the appellant.
As regards ground no. 3, it is seen that Assessing Officer has made total disallowance of Rs. 1,01,16,360/- pertaining to bills from M/s Swen Television Ltd. which according to appellant consists of Rs. 91,80,000/- being towards bills from Swen Television Ltd. and Rs. 9,36,360/- being towards service tax on the same. It is the submission of the appellant that the service tax was not debited in the books of account of the appellant and was directly paid and, therefore, there is no justification of disallowance to that extent. As discussed in the preceding paras, Assessing Officer has made total disallowance of Rs. 1,01,16,360/- based on the bills received from Swen Television Ltd. which is inclusive of Service Tax also. Since it is held that the bills from Swen Television Ltd. is allowable, therefore, if service tax is debited then it has also to be allowed. If it has not been debited then there is no question of disallowance. Thus, in any case, the disallowance made to that extent of Rs. 9,36,360/- is also held allowable.”
Being aggrieved the Department is in appeal before us.
6. The ld. CIT DR reiterated the observations made by the Assessing Officer and further submitted that the ld. CIT(A) admitted the additional evidences without giving an opportunity of being heard to the Assessing Officer. Therefore, the deletion of addition made by the Assessing Officer was not justified.
In his rival submissions the ld. Counsel for the assessee reiterated the submissions made before the ld. CIT(A) and strongly supported the impugned order. It was further submitted that no new evidence was furnished by the assessee before the ld. CIT(A) and that all the relevant material was already furnished before the Assessing Officer which had been considered by the ld. CIT(A) and thereafter the arbitrary addition made by the Assessing Officer was deleted. It was also submitted that this issue is squarely covered in favour of the assessee vide order dated 02/09/2015 in for the A.Y. 2007-08 in the assessee’s own case, wherein the Departmental appeal on the identical issue having similar facts was dismissed. 7.1 We have considered the submissions of both the parties and perused the material available on record. It is noticed that in the preceding year an identical issue having similar facts was involved in the Departmental appeal in wherein by following the other decisions of the Coordinate Bench the appeal of the Department was dismissed. The relevant findings have been given in para 4 & 5 of the order dated 02/09/2015 in ITA No. 3306/Del/2011 which read as under: “4. During the course of hearing, it was submitted by ld. Counsel that the issue in appeal is covered by the following decisions of the coordinate bench of ITAT, Delhi: 1. JCIT vs. M/s Ajay Home Products P. Ltd. (ITA No. 2249/Del/2011, dt. 12.04.2013) wherein it was held as under: “9. We have carefully considered the arguments of both the sides and perused the material placed before us. After considering the facts of the case and the arguments of both the sides, we do not find any infirmity in the order of ld. CIT(A). The main basis of the Assessing Officer for making the disallowance is the statement of Shri S.K. Gupta recorded by the Assessing Officer. However, ld. CIT(A) has recorded the finding that in his statement Shri S.K. Gupta has never mentioned that the bills issued by M/s ERA Advertising and Marketing Co. Pvt. Ltd. and M/s Hamara Samay T. V. News Network P. Ltd. to Ajay Home Products P. Ltd., i.e., the assessee, were in the nature of accommodation entries. The assessee has filed confirmation certificate from M/s Hamara Samay T.V. News Network P. Ltd. in which the details of telecast of the advertisement of the appellant were given. The assessee had filed the confirmation of both the parties, copy of CD of the advertisement film, copy of the bills of advertisement; all the payments were made by cheque, copy of bank statement and complete vouchers relating to advertisement expenses were furnished. It was also stated by the ld. Counsel that on these payments of advertisement expenses, TDS was deducted at source and moreover, service tax was also paid. The CD containing the text of advertisement was also produced. Considering these facts, in our opinion, the ld. CIT(A) rightly held that the assessee has discharged its onus of proving that the payment to M/s ERA Advertising and Marketing Co. P. Ltd. and M/s Hamara Samay T. V. News Network P. Ltd. was towards actual advertisement expenses and not accommodation entries. In view of the totality of the above facts, we do not find any infirmity in the order of ld. CIT(A). The same is sustained and the Revenue’s appeal is dismissed.”
2. DCIT vs. M/s ASL Insurance Brokers P. Ltd.(ITA No. 2713 & 3579/Del/10, dt. 09.04.2012) “5. We have considered the facts of the case and submissions made before us. It is seen that the revenue collected information in the course of search of Sh. S.K. Gupta and his Companies that they were carrying on the business of providing accommodation entries. Thereafter his statement was recorded on 27.12.2006 which is more specific in relation to their transaction with the assessee. It has been deposed that the bills issued by M/s Era Advertisement and Marketing P. Ltd. are in the nature of accommodation entries but M/s Swen Television Ltd. has provided advertising services to the assessee company for which agency commission @ 15% has been charged. The payments made by the assessee and received by M/s Swen Television Ltd. have been verified from both the ends. There is no discrepancy found in this matter. The verification has also led to the fact that the payments include service tax and tax deduction at source. M/s Swen Television Ltd. has offered the receipt for taxation in its return of income. In these circumstances, we are of the view that disallowing the expenditure on grounds of lack of rate card, TRP rating and sample agreement of M/s Swen Television Ltd. with its client is not justified. Thus, we are in agreement with the ld. CIT(A) that the assessee was entitled to the deduction of expenditure incurred for advertising on Jhankar TV through advertisement agent, M/s Swen Television Ltd.”
DCIT vs. M/s ASL Insurance Brokers P. Ltd. (ITA No. 2713 & 3579/Del/2010, dt. 09.04.2012): “5. We have considered the facts of the case and submissions made before us. It is seen that the revenue collected information in the course of search of Sh. S.K. Gupta and his Companies that they were carrying on the business of providing accommodation entries. Thereafter his statement was recorded on 27.12.2006 which is more specific in relation to their transaction with the assessee. It has been deposed that the bills issued by M/s Era Advertisement and Marketing P. Ltd. are in the nature of accommodation entries but M/s Swen Television Ltd. has provided advertising services to the assessee company for which agency commission @ 15% has been charged. The payments made by the assessee and received by M/s Swen Television Ltd. have been verified from both the ends. There is no discrepancy found in this matter. The verification has also led to the fact that the payments include service tax and tax deduction at source. M/s Swen Television Ltd. has offered the receipt for taxation in its return of income. In these circumstances, we are of the view that disallowing the expenditure on grounds of lack of rate card, TRP rating and sample agreement of M/s Swen Television Ltd. with its client is not justified. Thus, we are in agreement with the ld. CIT(A) that the assessee was entitled to the deduction of expenditure incurred for advertising on Jhankar TV through advertisement agent, M/s Swen Television Ltd.”
The facts of A.Y. 2007-08 are admittedly identical to the facts of AY 2006-07. Therefore, the findings given in that year (supra) are made applicable to this year also.”
5. Since the identical issues are involved in the present case, respectfully following the decisions in the above cases, we hold that the order of CIT(A) is reasonable and based on the evidence and does not call for any interference. Hence, the appeal filed by the Revenue is dismissed.”
Since the facts of the present case are identical to the facts involved in for the A.Y. 2007-08 in assessee’s own case so respectfully following the aforesaid order dt. 02/09/2015, we do not see any merit in this appeal of the Department.