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Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK
Before: S/SHRI N.S SAINI & PAVAN KUMAR GADALE
IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK
BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER
ITA No.435/CTK/2014 Assessment Year : 2009-2010
Vs. M/s. Hari Udyog Pvt Ltd., JCIT, Balasore Range, At/Po: O.T.Road, Dist: Balasore. Balasore. PAN/GIR No. AABCH 7243 Q (Appellant) .. ( Respondent)
Assessee by : Shri P.K.Mishra, AR Revenue by : Shri B.N. Das, DR
Date of Hearing : 08/06/ 2017 Date of Pronouncement : 12 /06/ 2017
O R D E R Per N.S.Saini, AM This is an appeal filed by the assessee against the order of CIT(A)-1,
Bhubaneswar, dated 5.5.2014, for the assessment year 2009-2010.
Ground Nos.1,2 & 8 of the appeal are general in nature and hence
requires no separate adjudication by us.
In Ground Nos.3,4, 5 & 6 of the appeal, the grievance of the assessee
is that the CIT(A) erred in confirming the disallowance made by the
Assessing Officer on commission payment of Rs.8,80,447/-.
2 ITA No. 435/CT K/ 2014 Asse ssment Year : 20 09- 201 0 4. Brief facts of the case are that the assessee derives income from
manufacturing and selling of PVC & HDPE pipes, PVC & JDPE fittings, Tara
Hand Pumps and spare parts, etc. The Assessing Officer observed from the
profit and loss account that the assessee has debited an amount of
Rs.72,24,261/- in the profit and loss account under the head “sales
commission”. The Assessing Officer added Rs.8,80,447/- as bogus
expenses under the head “sales commission” paid to following persons:
Sl.No. Name of the party Sales commission (Rs.)
Prakash Kumar Mohanty 6,53,240 2. Puspalata Parida 1,97,981 3. Gokul & Co. 19,548 4. Sumitra Traders 8,500 5. Binakar Supply Agency 1,178
The Assessing Officer observed that the assessee has paid
commission of Rs.6,53,240/- to one Prakash Kumar Mohanty, who
appeared before the Assessing Officer and was examined on oath u/s.131
of the Act. He submitted before the Assessing Officer that he works as a
General Manager in another company and, therefore, the Assessing Officer
was of the view that Shri Mohanty could have not have time to promote the
goods of the assessee company and, hence the Assessing Officer disallowed
the deduction for the same.
Regarding commission payment of Rs.1,97,981/- to Smt. Puspalata
Parida, the Assessing Officer observed that a letter was issued by RPAD,
which was returned unserved with the postal remarks “no such address”.
3 ITA No. 435/CT K/ 2014 Asse ssment Year : 20 09- 201 0 The assessee failed to produce Smt. Parida before the Assessing Officer to
prove the identity of the commission agent and genuineness of the
payment. Therefore, the Assessing Officer concluded that payment was
bogus and disallowed the deduction for the same.
In respect of commission payment of Rs.19,548/- to Gokul & Co., and
Rs.8,500/- to Sumitra Traders and Rs.1,178 to Binakar Supply Agency, the
Assessing Officer observed that detailed particulars were not furnished by
the assessee and, therefore, he held that the genuineness of the
transaction has not been established and disallowed deduction for the
same.
On appeal before the CIT(A), the assessee argued that the Director
of the assessee company Shri Sangram Kumar Das and Mr Prakash Kumar
Mohanty has stated before the Assessing Officer that the services rendered
by Shri Prakash Kumar Mohanty to whom commission payment was made
comprised of collection of orders of the company, follow up with
Government Departments for releasing payment in favour of the assessee,
existence of an agreement with the company for the aforesaid work, receipt
of commission in terms of the agreement from the company by cheque. It
was further submitted that Shri Prakash Kumar Mohanty was an income
tax assessee having PAN No.AJWPM 3507 F and the receipt of commission
was fully and truly disclosed in his return of income, copy of which was
submitted. It was further submitted that applicable amount of TDS was
deducted from the commission and duly deposited with the I.T.Authorities.
4 ITA No. 435/CT K/ 2014 Asse ssment Year : 20 09- 201 0 Further, regarding commission payment to Smt. Puspalata Parida, the
assessee submitted that she has procured orders and followed up with
various departments for facilitating release of payment. Copy of the
agreement and bills submitted with details of invoices for whom she
procured the orders and also followed up for payments were filed. It was
submitted that Puspalata Parida was an income tax assessee having PAN
No.AYGPP 2914 C and has filed the return of income disclosing receipt of
commission. Copy of agreement and bills with details of invoices for whom
she procured the orders were filed. It was submitted that the applicable
amount of TDS was deducted from the commission and duly deposited with
the I.T.authorities. Hence, it was submitted that the disallowance should
be deleted. Regarding commission payment of Rs.19,548 to Gokul & Co.,
Rs.8,500/- to Sumitra Traders and Rs.1,178/- to Binakar Supply Agency, it
was submitted that payments were small in nature and was not practical to
produce the parties to prove their identity.
The CIT(A) after considering the submissions of the assessee
observed that in view of detailed discussion by the Assessing Officer, it is
abundantly clear that commission has been paid in the name of Sri Prakash
Kumar Mohanty for no work done and genuineness of the payment has not
been established by the assessee. In the case of Smt. Puspalata Parida,
both existence of commission agent and genuineness of payment has not
been established by the assessee. In the case of commission payment to
Gokul & Co., Sumitra Traders and Binakar Supply Agency, the assessee
failed to provide vital particulars for which no enquiries could be done and
5 ITA No. 435/CT K/ 2014 Asse ssment Year : 20 09- 201 0 hence, existence of commission agents and genuineness of payment has
not been established. Therefore, he confirmed the disallowance of
Rs.8,80,447/-.
Before us, ld A.R. of the assessee reiterated the submissions made
before the lower authorities and ld D.R. supported the orders of lower
authorities.
We have heard the rival submissions and perused the orders of lower
authorities and materials available on record. We find that payment of
commission of Rs.8,80,447/- is not in doubt or debate. Further, the
genuineness of payment is proved from the fact that the assessee has
deducted TDS from the commission payment made to Mr Prakash Kumar
Mohanty and Smt. Puspalata Parida and deposited the same with
Government. The assessee during the course of hearing has also filed
copies of income tax returns of both the persons. The assessee has filed
details such as bills, details of orders procured before the Assessing Officer
and also submitted that they have followed up for payment in favour of the
assessee for the sales made. The Assessing Officer has not brought any
cogent and positive materials on record after verifying the details to show
that same are not genuine without bringing any adverse materials on
record, in our considered view, the Assessing Officer was not justified in
rejecting the details and evidence filed before him in respect of commission
payment. Ld A.R. of the assessee filed before us copy of assessment order
for the assessment year 2011-2012 in the case of the assessee, wherein,
6 ITA No. 435/CT K/ 2014 Asse ssment Year : 20 09- 201 0 assessment has been made u/s.143(3)/147 of the Act dated 30.12.2016
and submitted that commission payment made to very same persons has
been allowed by the Assessing Officer himself. Hence, in our considered
view on the very same set of facts when commission has been accepted by
the revenue in one year and in another year, they cannot turn around and
say that commission payments made to the very same persons are not
genuine and are bogus. Our view finds support from the decision of Hon’ble
Supreme Court in the case of RADHASOAMI SATSANG vs. COMMISSIONER
OF INCOME TAX, 193 ITR 321 (SC), wherein, it has been held that where
a fundamental aspect permeating through the different assessment years
has been found as a fact one way or the other and parties have allowed
that position to be sustained by not challenging the order, it would not be
at all appropriate to allow the position to be changed in a subsequent year.
To the same effect is the decision of Hon’ble Supreme Court in the case of
CIT Vs. Excel Industries Ltd. 358 ITR 295(SC), wherein, it has been held
as under:
“That a consistent view had been taken in favour of the assessee on the questions raised, starting with the assessment year 1992- 93, that the benefits under the advance licences or under the duty entitlement pass book did not represent the real income of the assessee. There was no reason for the court to take a different view unless there were very convincing reasons, which there were not.
Therefore, respectfully following the above decisions of Hon’ble
Supreme Court and keeping in view the fact that no change in facts has
been brought on record by the revenue during the year under appeal, we
7 ITA No. 435/CT K/ 2014 Asse ssment Year : 20 09- 201 0 set aside the orders of lower authorities and direct the Assessing Officer to
allow commission payment to Shri Prakash Kumar Mohanty and Smt.
Puspalata Parida. However, in respect of commission payment to Gokul &
Co., Sumitra Traders and Binakar Supply Agency, we find that the assessee
has failed to provide vital particulars regarding commission payment and
hence, we confirm the addition to that extent. Hence, this ground of appeal
is partly allowed.
In Ground No.7 of the appeal, the grievance of the assessee is that
the CIT(A) erred in confirming the disallowance of Rs,1,34,276/- under the
head “sales promotion expenses”.
Brief facts of the case are that the Assessing Officer found that the
assessee has claimed deduction of Rs.1,34,276/- under the head “sales
promotion expenses” which comprised of providing hotel facilities and
refreshment, etc to CIPET Inspectors and, therefore, held that same cannot
be treated as business expenditure as CIPET was a Central Government
Institution. The assessee submitted that it was incurred in the normal
course of business to the extend of courtesy and due to business exigency.
The Assessing Officer did not accept the explanation of the assessee and
disallowed the same.
On appeal, the CIT(A) confirmed the same.
Before us, ld A.R.of the assessee reiterated the submissions made
before the lower authorities. Ld D.R. supported the orders of lower
authorities.
8 ITA No. 435/CT K/ 2014 Asse ssment Year : 20 09- 201 0 17. After considering the rival submissions and perusing the materials on
record, we find that the assessee has claimed expenses of Rs.1,34,276/-
as sales promotion expenses. The said expenditure was incurred on
refreshment provided to CIPET Inspectors. The Assessing Officer
disallowed the deduction on the ground that it was not business
expenditure and was spent for providing hospitality to Government
servant. The claim of the assessee is that the expenditure has been
incurred for normal course of business and is business necessity and hence,
the deduction should be allowed for the same. In the above facts and
circumstances of the case, we are of the considered view that the amount
has been incurred for carrying out the business activities of the assessee
and for the business purposes and, therefore, the same is allowable as
deduction u/s.37(1) of the Act. Further, we find that it is not the case of
the Revenue that the expenditure incurred by the assessee is not genuine
or is excessive. Hence, we set aside the order of the CIT(A) on this issue
and delete the disallowance of Rs.1,34,276/- and allow the ground of
appeal of the assessee.
The assessee has also filed an additional ground, which reads as
under:
“That the ld Forum below should have allowed the credit of total “amount of TDS claimed by the assessee and should not have disallowed TDS to the tune of Rs.31,679/- ignoring the fact of production of TDS certificate.” 19. We find that the assessee had raised this ground as Ground No.6 of
the appeal before the CIT(A) filed in Form No.35 of appeal memo and the
9 ITA No. 435/CT K/ 2014 Asse ssment Year : 20 09- 201 0 CIT (A) has not adjudicated the same. Hence, we set aside this issue to
the file of the CIT(A) to adjudicate the issue as per law.
In the result, the appeal filed by the assessee is partly allowed. Order pronounced in the open court on 12 /06/2017 in the presence of parties. Sd/- sd/- (Pavan Kumar Gadale) (N.S Saini) JUDICIALMEMBER ACCOUNTANT MEMBER Cuttack; Dated 12/06/2017 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : M/s. Hari Udyog Pvt Ltd., At/Po: O.T.Road, Dist: Balasore 2. The Respondent. JCIT, Balasore Range, Balasore. 3. The CIT(A)-1, Bhubaneswar 4. Pr.CIT- 1, Bhubaneswar 5. DR, ITAT, Cuttack 6. Guard file. BY ORDER, //True Copy//
SR.PRIVATE SECRETARY ITAT, Cuttack