Income Tax Appellate Tribunal - Jaipur
Smt. Shachi Agarwal, Jaipur vs Jcit, Jaipur on 18 May, 2017
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM
vk;dj vihy la-@ITA No. 272/JP/2013
fu/kZkj.k o"kZ@Assessment Year : 2009-10
Smt. Shachi Agarwal cuke Joint Commissioner of
Plot No. 12, Rameswar Dham, Opp. Vs. Income Tax Circle-04, Jaipur
Kedia Palace, Murlipura, Jaipur
LFkk;h ys[kk la-@thvkbZvkj la-@PAN No. AGPPA5840F
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj ls@ Assessee by : Shri S.K.Sharma (CA)
jktLo dh vksj ls@ Revenue by: Shri Ajay Malik (JCIT)
lquokbZ dh rkjh[k@ Date of Hearing : 11/05/2017
?kks"k.kk dh rkjh[k@ Date of Pronouncement : 18/05/2017.
vkns'k@ ORDER
PER SHRI KUL BHARAT, J.M.
This appeal by the assessee is directed against the order of ld. CIT (A)-2, Jaipur dated 29.01.2013 pertaining to assessment year 2009-10. The assessee has raised the following grounds of appeal:-
"1. In holding that assessee could not proved that there was an agreement for sale of residential house as there is no such entry in cash book or elsewhere in accounts book and could not produced Shri Ram Bharosi Meena and thereby confirming the addition of Rs. 5,00,000/- made under section 68 of Income tax Act, 1961.
2. In confirming the disallowance of Rs. 8,89,323 which was commission paid to foreigners Mrs. Nam Gi Ok and Mr. Kim Young Ho on the ground that no TDS was deducted under section 40(a)(i) of the Income Tax Act.
2.1 in not considering the board Circular No. 786 dated 7th February, 2000 [(2000)158 CTR (St) 61] issued by CBDT which 2 ITA No. 272/JP/2013 Smt. Shachi Agarwal vs. Joint Commissioner of Income Tax was withdrawn vide Circular No. 7 of 22nd October, 2009 and as such, commission paid upto 22nd October 2009 was allowable. 2.2 the commission was paid to foreign nationals outside India and therefore, payment was not chargeable to tax in the hands of non-resident receipt as held by ITAT Mumbai Bench in the case of ACIT vs. Anchor Health & Beauty Card (P) Ltd.
(2012) 143 TTJ 566 (Mum) and ITAT Jaipur Bench in the case of ACIT vs. Modern Insulators Ltd. AM (2011) 140 TTJ (Jp) 715.
3. The appellant reserves the right to add, alter, amend or delete any of the grounds of appeal before hearing."
2. Briefly stated the facts are that the case of the assessee was picked up for assessment and the assessment under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the ''Act'') was framed vide order dated 13.12.2011. While framing the assessment, Assessing Officer made additions on account of unexplained cash u/s 68 of the Income Tax Act, 1961, and disallowance made on account of non deduction of tax on commission paid and disallowance of DEPB claimed.
3. Aggrieved by this, the assessee preferred an appeal before ld. CIT (A), who after considering the submissions, partly allowed the appeal deleting the amount on account of disallowance of credit and reduced the additions made on account of disallowance made u/s 40 (ia) of the Act from Rs. 16,48,510/- to 8,89,323/-. Further aggrieved, the assessee has preferred the present appeal.
4. Apropos ground no. 1, the ld. Counsel for the assessee reiterated the submissions as made before the ld. CIT (A) and submitted that the ld. CIT (A) was not justified in making the addition. He further reiterated the submission as made in the written submission. He submitted that before AO he had produced photo copy of sale agreement correspondence letters/ notices copy of ration card of Shri Ram 3 ITA No. 272/JP/2013 Smt. Shachi Agarwal vs. Joint Commissioner of Income Tax Bharosi Meena. He submitted that whatever he could furnish in support of the claim that the amount of Rs. 5,00,000/- was received from Shri Ram Bharosi Meena as advance was furnished to the authorities below. He drew our attention to the extract of cash book entry of Rs. 5,00,000/- dated 06.01.2009. He submitted that the finding of ld. CIT(A) is contrary to the records.
5. On the contrary, the ld. DR supported the orders of the authorities below and submitted that the ld. CIT (A) has passed reasoned order. He submitted that incumbent was upon the assessee to prove the genuineness of transactions identity and credit worthiness of the creditor.
6. We have heard rival contentions, perused the material available on record and gone through the orders of the authorities below. We find that in support of the claim, the assessee has furnished copy of the sale agreement notices issued by the advocates and also the extract of cash book wherein a transaction dated 06.01.2009 is reflected. However we find that ld. CIT(A) has stated that there is no balance in cash book for introduction of Rs. 5,00,000/-.The case of the assessee is that this amount was received as advance from Shri Ram Bharosi Meena, a copy of the sale agreement dated 06.01.2009 is enclosed in paper book acknowledge the advance Therefore, in our considered view, ld. CIT(A) ought to have verified the veracity of such claim by summoning Shri Ram Bharosi Meena. Therefore, we deem it proper in the interest of justice to restore this issue to the file of the Assessing Officer to decide the issue afresh in view of the written submissions and evidences filed by the assessee and also make an enquiry by summoning Shri Ram Bharosi Meena, the alleged purchaser of the property. This ground of the assessee is allowed for statistical purposes.
4ITA No. 272/JP/2013
Smt. Shachi Agarwal vs. Joint Commissioner of Income Tax
7. The ground No. 2 (2.1 to 2.2) of the assessee is regarding confirming the disallowance of Rs. 8,89,323/-. As regards the commission made to the foreign national, the ld. Counsel for the assessee reiterated the submissions made before the ld. CIT (A). The ld. Counsel for the assessee submitted that the assessee submitted a copy of the bills relating to commission before the Assessing Officer. For the sake of the identity, the copy of Passport was submitted to the Assessing Officer. He relied on the decision of Hon'ble Delhi High Court in the case reported at 246 CTR (Del) 40, and ITAT Jaipur Bench decision in the case of ACIT vs. Modern Insulators Ltd. A.M (2011) 140 TTJ (jp) 715.
8. On the contrary, the ld. D/R supported the orders of the authorities below.
9. We have heard rival contentions, perused the material available on record and gone through orders of the authorities below. The assessee has furnished bills of payment of commission demonstrating that the commission was paid to Foreign National. It is also stated that the other payment was made to the Indian National whose services was taken for the purpose of translation. It is the case of the assessee that the ld. CIT(A) has accepted the commission paid to the translator on which tax was deducted but has not accepted that the payment to the Foreign National. We find that the assessee has furnished invoice raised by the foreign national in support of the services rendered by them. However, the assessee has not furnished any evidence relating to the nature of service rendered by the Foreign Nationals outside India. The Assessee has not produced any evidence proving, employment and rendering of service. In the absence of such evidence, it is not established that any service was rendered. Therefore, we deem it proper in the 5 ITA No. 272/JP/2013 Smt. Shachi Agarwal vs. Joint Commissioner of Income Tax interest of justice to restore this issue to the file of AO for decision afresh. The AO would give sufficient opportunities to the assessee for placing evidence on record.
10. The ground no. 3, this ground is general in nature and requires no adjudication.
11. This ground of the assessee is partly allowed for statistical purposes.
12. In the result, appeal of the assessee is partly allowed for statistical purposes.
Order pronounced in the open court on 18/05/2017
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(BHAG CHAND ) ( KUL BHARAT )
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Jaipur
Dated:- 18/05/2017
Ganesh Kumar
vkns'k dh izfrfyfi vxzfs "kr@Copy of the order forwarded to:
1. The Appellant- Smt. Shachi Agarwal
2. The Respondent - Joint Commissioner of Income Tax, Jaipur
3. The CIT(A).
4. The CIT,
5. The DR, ITAT, Jaipur
6. Guard File (ITA No. 272/JP/2013) vkns'kkuqlkj@ By order, lgk;d iathdkj@ Assistant. Registrar