Shri Ujjal Golui, Howrah v. ITO, Ward - 47(4), Kolkata, Kolkata

ITA 1283/KOL/2011 | 2007-2008
Pronouncement Date: 31-07-2012 | Result: Allowed

Appeal Details

RSA Number 128323514 RSA 2011
Assessee PAN AFKPG8184Q
Bench Kolkata
Appeal Number ITA 1283/KOL/2011
Duration Of Justice 10 month(s)
Appellant Shri Ujjal Golui, Howrah
Respondent ITO, Ward - 47(4), Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 31-07-2012
Assessment Year 2007-2008
Appeal Filed On 30-09-2011
Judgment Text
I.T.A. NO.:1283/ KOL. / 2011 ASSESSMENT YEAR : 2007-08 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA B BENCH KOLKATA BEFORE SHRI PRAMOD KUMAR (ACCOUNTANT MEMBER) AND SHRI MAHAVIR SINGH (JUDICIAL MEMBER) I.T.A. NO.: 1283/ KOL. / 2011 ASSESSMENT YEAR : 2007-08 SRI UJJAL GOLUI . ...APPELLANT BARGACHIA. HOWRAH-711 404 [PAN :AFKPG 8184 Q] -VS.- INCOME TAX OFFICER.....RESPONDENT WARD-47(4) KOLKATA 3 GOVT. PLACE (WEST) KOLKATA-700 001 APPEARANCES BY: SHRI DIPAK KAR FOR THE APPELLANT SHRI A.K. MAITRA D.R. FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : MAY 21 2012 DATE OF PRONOUNCING THE ORDER : MAY 21 2 012 O R D E R PER PRAMOD KUMAR: 1. THE SHORT ISSUE THAT WE ARE REQUIRED TO ADJUDICA TE IN THIS APPEAL IS WHETHER OR NOT THE COMMISSIONER OF INCOME TAX (A PPEALS) WAS JUSTIFIED IN SUSTAINING THE DISALLOWANCE OF RS.3 71 700/- IN RESPECT OF COMMISSION PAID. THE ASSESSMENT YEAR INVOLVED IS 20 07-08 AND THE IMPUGNED CIT(APPEALS)S ORDER DATED 27 TH JULY 2011 WAS PASSED IN THE MATTER OF ASSESSMENT U/S. 143(3) OF THE INCOME TAX ACT 1961. I.T.A. NO.:1283/ KOL. / 2011 ASSESSMENT YEAR : 2007-08 PAGE 2 OF 5 2. THE ISSUE IN APPEAL LIES IN A RATHER NARROW COMP ASS OF MATERIAL FACTS. THE ASSESSEE EARNS HIS LIVELIHOOD FROM COMMI SSION ON POST OFFICE SAVINGS ETC. DURING THE COURSE OF ASSESSMENT PROCEE DINGS THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS CLAIM ED A DEDUCTION OF RS.3 71 700/- IN RESPECT OF COMMISSION PAID TO THE SAVINGS HOLDERS I.E. THE PERSONS MAKING DEPOSIT IN VARIOUS SAVINGS SCHEM E IN THE POST OFFICE BUT HAS NOT BEEN ABLE TO SUBSTANTIATE THE S AME BY PRODUCING THE BOOKS OF ACCOUNTS OR BY FILING THEIR FULL PARTICULA RS. IT WAS IN THIS BACKDROP THAT THE COMMISSION PAYMENT OF RS.3 71 700 /- WAS DISALLOWED. AGGRIEVED ASSESSEE CARRIED THE MATTER IN APPEAL BE FORE THE CIT(APPEALS) BUT WITHOUT ANY SUCCESS EVEN THOUGH A SSESSEE FILED EVIDENCE OF PAYMENT AND OFFERED TO PRODUCE THE BOOK S OF ACCOUNTS WHILE CONFIRMING THE ACTION OF THE ASSESSING OFFICE R THE CIT(APPEALS) OBSERVED AS FOLLOWS :- 1.4. NOW IN APPEAL IT IS SUBMITTED THAT THE BOOKS OF ACCOUNTS WERE AVAILABLE AND THE AR HAD PLEADED FOR SHORT ADJ OURNMENT TO PRODUCE THE SAME AS WELL AS COPY OF DOCUMENTS IN SU PPORT OF PAYMENT OF COMMISSION. HOWEVER THIS ASSERTION IS NO T REFLECTED IN THE ASSESSMENT ORDER WHERE THE AC HAS CLEARLY ME NTIONED THAT THE AR OF THE APPELLANT HAD STATED DURING ASSE SSMENT PROCEEDINGS THAT NO BOOKS OF ACCOUNTS ARE MAINTAINE D AND PRODUCTION OF EVIDENCE IN RESPECT OF THE COMMISSION PAID WILL NOT BE POSSIBLE. IN APPEAL THE STATEMENT OF COMMISSION PAID TO 627 PERSONS (NOT 625 AS MENTIONED BY THE AO) WAS SUBMIT TED WITH SIGNATURE/THUMB IMPRESSION OF SAVING HOLDER. HOWEVE R NO EVIDENCE IN RESPECT OF THE RECORD MAINTAINED BY THE APPELLANT WAS PRODUCED IN ASSESSMENT PROCEEDINGS. THERE ALSO IS N O EXPLANATION FORTHCOMING AS TO WHY DESPITE BEING GIV EN SEVERAL OPPORTUNITIES TO DO SO SUCH RECORDS IF MAINTAINED WERE NOT PRODUCED BEFORE THE AO. IN REMAND PROCEEDINGS AGAIN IT WAS SUBMITTED BY THE APPELLANT THAT THE RECORDS WHICH I AM MAINTAINING AT THE TIME OF PAYMENT OF COMMISSION IS SUFFICIENT HOWEVER SINCE NO SUCH RECORDS WERE PRODUCED BEFORE THE AO THE CONTENTION OF THE APPELLANT THAT H AD MAINTAINED AN Y SUCH RECORD I.T.A. NO.:1283/ KOL. / 2011 ASSESSMENT YEAR : 2007-08 PAGE 3 OF 5 CAN NOT BE ACCEPTED. IT IS SEEN FROM HIS PROFIT AND LOSS ACCOUNT THAT HE HAS RECEIVED RS.4 80 770/- AS COMMISSION FR OM POST OFFICE AND CASH REWARD OF RS.1 70 172/-. AGAINST THIS HE H AS SHOWN COMMISSION PAYMENT TO SAVINGS HOLDERS OF RS.3 71 70 0/- I.E. MAJOR PORTION OF THE COMMISSION RECEIVED IS CLAIMED TO HAVE BEEN PAID AS COMMISSION TO SAVINGS HOLDERS. IN FACT THES E COMMISSION PAYMENTS FORM NEARLY 50% OF HIS TOTAL RECEIPT. IT I S POSSIBLE THAT THE APPELLANT MIGHT HAVE SHARED THE CASH REWARD OF RS.1 70 172/- BUT A MAJOR PORTION OF COMMISSION RECEIPT BEING PAI D TO SAVINGS HOLDERS IS DIFFICULT TO ACCEPT WITHOUT ANY ORIGINAL RECORDS BEING MAINTAINED BY THE APPELLANT TO THIS EFFECT. 1.5. IN RESPECT OF THE LIST PROVIDED IN APPEAL PRO CEEDINGS OF PAYMENT TO SAVING HOLDER THE A.O HAD ASKED FOR FULL DETAIL OF THIS PERSONS IN RESPECT OF FATHERS HUSBANDS NAME VILL AGE AND POST OFFICE DETAILS ETC. AND ALTHOUGH IT WAS CLAIMED THA T IN SUFFICIENT TIME WAS GIVEN BY THE AO TO SUBMIT THE SAME NO SUC H DETAILS HAVE BEEN PROVIDED EVEN AFTER A PASSAGE MORE THAN O NE YEAR WHEN THE APPEAL PROCEEDINGS WERE TAKEN UP BY ME. IT IS N OT ENOUGH TO SAY THAT THE APPELLANT HAS SUFFICIENT EVIDENCE REGA RDING PAYMENT OF COMMISSION AND THEN NOT PRODUCE HIS RECORDS. IN FACT HE HAS BEEN ABLE TO OBTAIN A SIGN LIST OF 627 PERSONS BUT IS UNABLE TO GIVE THEIR ADDRESS TO THE AO FOR VERIFICATION. IT M AY ALSO BE MENTIONED HERE THAT WHEN IT WAS SUBMITTED IN APPEAL BEFORE MY PREDECESSOR DURING HEARING ON 20.04.2010 THAT COMPL ETE POSTAL ADDRESS CAN NOT BE SUBMITTED THE A.R WAS ASKED TO FILE DETAILS OF COMMISSION PAYMENT IN PREVIOUS TWO YEARS. HOWEVER I T IS SEEN FROM THE RECORD THAT NO SUCH DETAILS HAVE BEEN FLIE D. CONSIDERING ALL THE ABOVE THE CONTENTIONS OF THE APPELLANT REG ARDING PAYMENT OF COMMISSION CAN NOT BE ACCEPTED AND THE ADDITION MADE ON THIS ACCOUNT OF RS.3 71 700/- IS SUSTAINED. 3. THE ASSESSEE IS NOT SATISFIED AND IS IN FURTHER APPEAL BEFORE US. 4. WE HAVE NOTED THAT THE COMPLETE LIST OF PERSONS TO WHOM COMMISSION WAS PAID WAS DULY FILED BEFORE THE CIT( APPEALS) AND THE ASSESSEE ALSO OFFERED TO PRODUCE THE BOOKS OF ACCOU NTS. WE HAVE ALSO NOTED THAT AT THE ASSESSMENT STAGE THE ASSESSEE WA S ASKED TO FILE THIS I.T.A. NO.:1283/ KOL. / 2011 ASSESSMENT YEAR : 2007-08 PAGE 4 OF 5 INFORMATION ONLY AT THE FAG END OF THE ASSESSMENT P ROCEEDINGS I.E. ON 25 TH MARCH 2010 AND THE ASSESSEE WAS ONLY GIVEN THREE DAYS TIME TO PRODUCE THE SAME. THESE FACTS ARE CLEARLY EVIDENT F ROM ASSESSING OFFICERS LETTER DATED 25 TH MARCH 2010 A COPY OF WHICH IS FILED BEFORE US AT PAGE 2 OF THE PAPER BOOK. THE REASON OF DISAL LOWANCE WAS THUS VITIATED IN LAW AND IN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE. WE HAVE ALSO NOTED THAT IT IS A COMMON PRACTICE THAT A PART OF COMMISSION RECEIVED BY POST OFFICE AGENT IS SHARED WITH THE DE POSITORS AND THE MARKET IS QUITE COMPETITIVE IN THIS REGARD. WE HAVE ALSO NOTED AS SUBMITTED BY THE ASSESSEE VIDE SUBMISSION DATED 26 TH JULY 2011 BEFORE THE CIT(APPEALS) THE ADDRESSES GIVEN BY THE ASSESSEE IN STATEMENT A RE COMPLETE AND SUFFICIENT FOR THE PURPOSE OF VERIFICA TION IF SO REQUIRED BY THE ASSESSING OFFICER BUT THE ASSESSING OFFICER HAS NOT EVEN MADE ANY EFFORTS TO ENQUIRE FURTHER INTO THE MATTER. KEEPING IN VIEW ALL THESE FACTORS AND HEARING IN MIND SMALLNESS OF AMOUNT IN VOLVED AND THE TAXPAYER BEING A SMALL TUNE POST OFFICE COMMISSION AGENT WE DO NOT THINK SENDING THE MATTER BACK AT THIS STAGE IS CALL ED FOR- PARTICULARLY AS THE ASSESSEE HAS FILED THE COMPLETE LIST OF RECIPIE NTS BEFORE THE CIT(APPEALS) AND NO SPECIFIC DEFECTS ARE NOT POINTE D OUT IN THE SAME. WE THEREFORE DELETE THE IMPUGNED DISALLOWANCE. TH E ASSESSEE GETS THE RELIEF ACCORDINGLY. 5. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST DAY OF JULY 2012. SD/- SD/- MAHAVIR SINGH PRAMOD KUMAR (JUDICIAL MEMBER) (ACC OUNTANT MEMBER) KOLKATA THE 31 ST DAY OF JULY 2012 I.T.A. NO.:1283/ KOL. / 2011 ASSESSMENT YEAR : 2007-08 PAGE 5 OF 5 COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES KOLKATA LAHA/SR. P.S.