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Income Tax Appellate Tribunal, KOLKATA ‘C(SMC
Before: Shri P.M. Jagtap
This appeal filed by the assessee is directed against the order of ld. Commissioner of Income Tax (Appeals), Siliguri dated 13.07.2015.
The issue raised in Grounds No. 1 & 2 relates to the addition of Rs.11,16,426/- made by the Assessing Officer and confirmed by the ld. CIT(Appeals) on account of alleged undisclosed commission.
The assessee in the present case is an individual, who is carrying on a business as commission agent of M/s. Unipay2U Marketing Private Limited, Chennai. The return of income for the year under consideration was filed by her on 29.03.2011 declaring total income of Rs.11,16,750/-. During the course of assessment proceedings, it was noticed by the Assessing Officer from TDS certificates issued by M/s. Unipay2U
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Marketing Private Limited that total commission of Rs.21,82,585/- was paid to the assessee, whereas in her return of income, the assessee had shown commission income of Rs.10,66,159/- only. The assessee, therefore, was called upon by the Assessing Officer to explain this difference. In reply, the following explanation was offered by the assessee in writing:- “I was an investor cum commission holder of a company called Unipay2U Marketing Pvt. Ltd. of No. 5, Vinayagam Pet street Saidapeet, Chennai, Pin-600015, Tamil Nadu.The business of the company was non banking financial activity operated through internet. They used to collect the investments with the promise of some exceptional high rate of return. All the promise as well as activities of the company became fake and fraudulent. The modus operandi of the company was such that the interested proposed investor has to invest money to the company through the existing investor as an investor. The existing investor used to receive some-commission from the said company out of the said amount received and deposited by him on behalf of the fresh investor. The entire documents, details, particulars, accounts, information and others were maintained by the company never was communicated to any investor properly. Some of them were available in their official web site, but were not available to take the print of the same. Now the company has shut down their official website and totally has stopped any communication with the investor. Actually I have earned a sum of Rs.10,66,159/= as commission from the said company for The AY. 2010-11 out of which a sum of Rs.2,39,133/- was paid to me during the said year and the balance amount of Rs.8,27,026/- was still receivable by me as on 31/0312010. The details furnished by the company in Form No. 16A, showed mot a sum of Rs. 21,82,585/= was credited in my name as commission, the same is totally false, baseless and never been paid to me. Myself is never accountable for the false particulars furnished by the others and should not be taxed on that. The truth of my claim could be observed from my bank transaction. Any contrary of the same, your honour is hereby requested to arrange cross examination by me of the said company or rely on my statement and documents submitted by me”.
The above explanation of the assessee was not found acceptable by the Assessing Officer. According to him, the books of account and Bank
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statements produced by the assessee did not show the actual business created by the assessee on behalf of M/s. Unipay2U Marketing Private Limited. He was also of the opinion that the books of account produced by the assessee did not show the clear picture as regards the basis of which the commission was paid to her by the said Company. The assessee also could not furnish the details of actual understanding and agreement with the said Company. The Assessing Officer, therefore, proceeded to take the amount of commission received by the assessee from M/s. Unipay2U Marketing Private Limited at Rs.21,82,585/- as shown in the relevant TDS certificates and made an addition of Rs.11,16,426/- to the total income of the assessee on account of the undisclosed commission income.
The addition made by the Assessing Officer on account of alleged undisclosed commission income was challenged by the assessee in the appeal filed before the ld. CIT(Appeals) and in support of her case on this case, the following submissions were made on behalf of the assesese before the ld. CIT(Appeals):- “(i) The ld. ACIT relied on the erroneous and baseless details provided in Form No. 16A by the Unipay 2U Marketing Pvt. Ltd. of No. 5, Vinayagam Pet Street, Saidapet,Chennai, PIN- 600015, Tamilnadu (page no. 3 to 8 of paper book). The said Co, mentioned in three Form No.16As that a sum of Rs.21,82,585/- in total was paid or credited to me. The claim was proved false from my Form 26AS (Page No. I to 2 of Paper Book) because the same Co. in their TD.S. returns submitted to the Income Tax Department shown a different amount as Rs.3,95,030/- in total as paid or credited to me by them.
ii) The ld. A.C.I.T. never allowed reasonable opportunity to me to confront by issuing Notice under section 131 or / and under section 133(6) to the said Unipay 2U Marketing Pvt. Ltd. and / or to the Tax Deductor, issued those said Form No.16As to arrange cross examination by me as demanded vide submission dated 08-03-2013 (Page No. 9 to 10 of Paper Book).
iii) The Ld. A.C.l.T. never tried to collect and verify the actual transaction details of mine with the said Co. from the said Unipay 2U Marketing Pvt. Ltd. by asking them to
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provide the same. Instead of tind out the fact she completely relied on the mare surmise and failed to provide any verified document 1 evidence in support of that addition.
iv) The Ld. ACIT completely misunderstood the nature of business of the said Unipay 2U Marketing Pvt, Ltd. and the method of calculation of commission paid or payable by them to me. It was repeatedly explained to her that the modus operandi of them was based on binary system. In this system every investor is an investor cum agent and has to invest money as well as join the business using the code provided by the Co. to an existing investor. The Co. had distributed commission out of the money collected by them to the said code holder and to every investor cum agent of the upper slab of the pyramid under whose chain the code holder has invested or joined as per different slabs. Hence the commission distributed to me was not only on the basis of the amount collected by me from the new investor but of the other new investors who had joined and invested by using the code of the persons of my down line.
Hence, the addition made based on the doubt put by the Ld. A.C.I.T. in Para No.- 2 of Page No.- 4 of the Assessment Order as "It is hard to accept that the said company had given commission of Rs.10,66,159/- only on investment deposited of Rs.7,17,488/- collected by the assessee" is totally baseless”.
The ld. CIT(Appeals) did not find merit in the above submissions made on behalf of the assessee and rejecting the same, he proceeded to confirm the addition of Rs.11,16,426/- made by the Assessing Officer on account of alleged undisclosed commission income for the following reasons given in paragraph nos. 4.2 & 4.3 of his impugned order:- “4.2. I have duly considered the submission of the Ld. AR and consulted the assessment records. The appellant filed her return on 29/03/2001, declaring total income of Rs.11,16,750/- under the head 'Profit & Gains from business' and computed tax liability at Rs.2,43,325/-. In the said return, the appellant computed tax payments as (i) Advance Tax - Rs.25,000/- and (ii) TDS - Rs.2,18,325/-. In support of the TDS credit, appellant filed three Form 16A alongwith the return under her own signature. From the figure of TOS mentioned in the return and the supporting evidences filed alongwith the return, the AO found out that the appellant though earned commission income to the tune of Rs.21,82,585/- from Unipay2U Marketing Pvt. Ltd but
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disclosed only Rs.10,66, 159/. The AO had not collected any information from anywhere besides relying upon the return of income and the documents filed alongwith the return.
4.3. The ld. A.R. of the appellant in his submission slated that the AO, in spite of his request, did not issue notice u/s. 131 or u/s. 133(6) of the Income Tax Act, so that the appellant could confront or cross-examine LJnipay2U Marketing Pvt. Ltd. In fact, same argument has been made during the appeal proceedings also. This is a bizarre argument. Collection of information from business associates or from third parties by issuing notice u/s. 133(6) or summoning them Ior interrogation is solely AO's prerogative. The assessee can only insist for cross- examination if the AO decides to use any information collected from business associates or third parties against the assessee. In this case, AO had not collected any information from outside. She only used the data available in the return of income filed by the appellant under her own signature. Thus, there existed no issue for allowing cross-examination. Onus was squarely on the appellant to establish her claim that she received less commission than what was mentioned in Form 16A, especially when she claimed full credit or TDS of Rs.2,18,325/- in her return of income and set off the tax liability accordingly”.
While confirming the addition made by the Assessing Officer on account of alleged undisclosed commission income, the ld. CIT(Appeals), however, directed the Assessing Officer to allow full credit of TDS amounting to Rs.2,18,325/- as shown in the relevant TDS certificates issued by M/s. Unipay2U Marketing Private Limited.
I have heard the arguments of both the sides on this issue and also perused the relevant material available on record. As submitted by the ld counsel for the assessee, information given by M/s. Unipay2U Marketing Private Limited in the relevant TDS certificates regarding the commission paid to the assessee was not correct and this position was clear even from the TDS returns filed by the said party, wherein altogether different figures were furnished. He contended that the Assessing Officer, however, relied on wrong TDS certificates issued by the said party to draw an adverse inference against the assessee in the matter of alleged
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undisclosed commission income without making any further enquiry with the said party or without giving any opportunity to the assessee to cross examine the said party. He has contended that this matter may, therefore, be sent back to the Assessing Officer for giving such opportunity to the assessee. Keeping in view all the facts of the case as well as the relevant material placed on record, I find merit in this contention of the ld. counsel for the assessee and since even the ld. D.R. has not raised any objection in this regard, I set aside the impugned order of the ld. CIT(Appeals) on this issue and restore the matter to the file of the Assessing Officer for deciding the same afresh after giving the assessee proper and sufficient opportunity of being heard. Grounds No. 1 & 2 of the assessee’s appeal are accordingly treated as allowed for statistical purposes.
The issue raised in Ground No. 3 relates to the addition of Rs.5,92,100/- made by the Assessing Officer and confirmed by the ld. CIT(Appeals) on account of unexplained cash deposits found to be made in the Bank account of the assessee.
During the course of assessment proceedings, it was noticed by the Assessing Officer from the relevant Bank statements of the assessee with Axis Bank that there were four cash deposits made on different dates aggregating to Rs.5,92,100/-. Since the said deposits were not reflected in the cash book of the assessee and no satisfactory explanation in this regard could be offered by the assessee, he treated the said cash deposits as unexplained and made an addition of Rs.5,92,100/- to the total income of the assessee. The addition of Rs.5,92,100/- made by the Assessing officer on account of unexplained cash deposits in the Bank accounts was challenged by the assessee in the appeal filed before the ld. CIT(Appeals) and the following submission was made by the assessee before him in support of her case:- “The reason for not showing those cash deposits mentioned in the Para 1.2. in Page No. 5 of the Assessment Order in my
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cash book is that, the amounts were deposited by the new investors directly by them to my given bank accounts. The said investors actually have deposited those amounts with an intention to invest in the company called Unipay 2U Marketing Pvt. Ltd. of No. 5, Vinayagarn Pet Street, Saidapet, Chennai, PIN- 600015, Tamilnadu as an investment deposit. I have only collected those amounts on behalf of the company to perform my duty as a commission agent. The company had paid me commission for such act. The payment of commission by the company is a clear evidence of the same. The particulars of those investors were furnished before the Ld. A.C.I.T. Since I have never received those amounts in my hand, the receipts wasn't shown in cash book as per norms of accountancy. But the same were perfectly shown elsewhere in the said books of accounts and produced before the Ld. A.C.I.T. for verification. The addition in absence of any contrary evidence is unlawful”.
The above submission made by the assesee was not found acceptable by the ld. CIT(Appeals) and he proceeded to confirm the addition made by the Assessing Officer on account of unexplained cash deposits for the following reasons given in paragraph no. 5.2 of his impugned order:- “5.2. I have duly considered the submission of the appellant. The AO found that a sum of Rs.5,92,100/- were deposited in appellant's bank accounts by cash without having any corresponding entries in the cash book and added the same as unexplained cash credit. The appellant explained that some new investors deposited the said cash directly in her bank accounts for investments in Unipay2U Marketing Pvt. Ltd. However, Ld. AR did not file any corroborative evidence in support of his claim. The reconciliation statement of cash book vis-a-vis bank deposits also could not be presented for verification. In any case, all cash deposits in hank, whatever may he name or source, should have corresponding entries in the cash book. Otherwise, accounts cannot be properly tallied. In case of mistake or omission or commission, onus is on the appellant to reconcile the same with corroborative evidences. The appellant could not do so. In the circumstances, I have no other option but to confirm the decision of the AO. The addition of Rs.5,92,100/- is therefore, sustained”.
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I have heard the arguments of both the sides on this issue and also perused the relevant material available on record. As submitted by the ld. counsel for the assessee before the ld. CIT(Appeals) and further reiterated before me at the time of hearing, the relevant cash deposits were made by the new investors directly in the Bank accounts of the assessee with an intention to invest the said amounts with M/s. Unipay2U Marketing Private Limited. According to him, these amounts thus were collected by the assessee on behalf of the said Company as a commission agent and since the said amounts were directly credited to the concerned parties account, the same were not reflected as cash deposits in the cash book of the assessee. As rightly contended by the ld. counsel for the assessee, it appears that the authorities below, however, have failed to appreciate this stand of the assessee and proceeded to add the amounts in question found deposited in the Bank accounts of the assessee in her hand without proper verification. At the time of hearing before me, even the ld. D.R. has not been able to dispute this position. He, however, has contended that this matter may be sent back to the Assessing officer for verifying the stand of the assessee from the relevant record. I find merit in this contention of the ld. D.R. The impugned order of the ld. CIT(Appeals) on this issue is accordingly set aside and the matter is restored to the file of the Assessing Officer for deciding the same afresh after verifying the stand of the assessee from the relevant record. Ground No. 3 of the assessee’s appeal is accordingly treated as allowed for statistical purposes.
In the result, the appeal of the assessee is treated as allowed for statistical purposes. Order pronounced in the open Court on October 04, 2016.
Sd/- (P.M. Jagtap) Accountant Member Kolkata, the 4th day of October, 2016 Copies to : (1) Smt. Nirmali Bhadra Ghosh,
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C/o. Mr. Sanjib Chakraborty, Ashirbad Apartment, 113, Rishi Aurobindo Road, Hakikpara, P.O. Siliguri, Dist. Darjeeling-734 001
(2) Assistant Commissioner of Income Tax, Circle-3, Siliguri, Aayakar Bhawan, Matigara (Siliguri), Dist. Darjeeling-734 010
(3) Commissioner of Income Tax(Appeals), Siliguri; (4) Commissioner of Income Tax- , (5) The Departmental Representative (6) Guard File By order
Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.