Shri Sudhir Madhusudan Lawate, Pune v. DCIT, Pune

ITA 1490/PUN/2013 | 2008-2009
Pronouncement Date: 26-11-2014 | Result: Partly Allowed

Appeal Details

RSA Number 149024514 RSA 2013
Assessee PAN AAZPL3875D
Bench Pune
Appeal Number ITA 1490/PUN/2013
Duration Of Justice 1 year(s) 4 month(s) 9 day(s)
Appellant Shri Sudhir Madhusudan Lawate, Pune
Respondent DCIT, Pune
Appeal Type Income Tax Appeal
Pronouncement Date 26-11-2014
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 26-11-2014
Assessment Year 2008-2009
Appeal Filed On 17-07-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B PUNE BEFORE SHRI G.S. PANNU ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR JUDICIAL MEMBER ITA NO.1490/PN/2013 (ASSESSMENT YEAR : 2008-09) SHRI SUDHIR MADHUSUDAN LAWATE 5 NINAD APARTMENTS AD PUNE 411 007. PAN : AAZPL3875D . APPELLANT VS. DY. COMMISSIONER OF INCOME TAX CIRCLE- 4 PUNE. . RESPONDENT ASSESSEE BY : MR. KISHOR PHADKE DEPARTMENT BY : MR. MAZHAR AKRAM DATE OF HEARING : 10-11-2014 DATE OF PRONOUNCEMENT : 26-11-2014 ORDER PER G. S. PANNU AM THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AG AINST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-II PUNE D ATED 15.02.2013 WHICH IN TURN HAS ARISEN FROM AN ORDER DATED 21.12.2010 PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME-TAX ACT 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEAR 2008-09. 2. IN THIS APPEAL ASSESSEE HAS RAISED THE FOLLOWIN G GROUNDS OF APPEAL :- 1. THE LEARNED CIT(A)-II PUNE ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION MADE BY THE LEARNED AO U/S 69C AMOUNTING TO RS.22 20 000/- PERTAINING TO COMMISSION EXPENSES BY CONSIDERING THE SAID EXPENSES AS UNEXPLAINED EXPENDITURE . 2. THE CIT(A)-II PUNE ERRED ON FACTS IN NOT GRANTI NG ADJOURNMENT TO THE APPELLANT AND ERRED IN DECIDING THE MATTER EX-PARTE . HE OUGHT TO HAVE APPRECIATED THE PENDENCY OF APPEAL FOR A.Y. 2008-09 IN THE CASE OF M/S MATRIX BIOMEDICS PVT. LTD. WHICH HAS A BEARING ON THE PRESENT CASE. ITA NO.1490/PN/2013 3. AT THE TIME OF HEARING THE PRELIMINARY PLEA OF THE APPELLANT IS THAT THE CIT(A) HAS PASSED AN EX-PARTE ORDER AND THAT THE APPEAL BE RESTORED BACK TO HIS FILE SO THAT THE ADJUDICATION BE MADE ON THE BA SIS OF THE MATERIAL AND SUBMISSIONS THAT THE ASSESSEE MAY PUT-FORTH BEFORE HIM. 4. THE LD. REPRESENTATIVE EXPLAINED THAT THE ASSESS EE WAS IN THE PROCESS OF COLLECTING INFORMATION TO COMPILE ITS SAY BEFOR E THE CIT(A) AND THEREFORE IT HAD SOUGHT ADJOURNMENT. HOWEVER THE CIT(A) DECLIN ED TO ADJOURN THE MATTER AND ON THE GROUND THAT THE ASSESSEE HAD SOUGHT ADJO URNMENT ON MORE THAN ONE OCCASION. THE LD. REPRESENTATIVE EXPLAINED THA T THE DISPUTE IS IN RELATION TO THE EXPENDITURE INCURRED BY THE ASSESSEE BY WAY OF COMMISSION WHICH HAS BEEN HELD TO BE UNEXPLAINED. THE LD. REPRESENTATIV E EXPLAINED THAT THE COMMISSION PAID BY THE ASSESSEE IS AGAINST THE INCO ME BY WAY OF COMMISSION RECEIVED ON THE BASIS OF HIS EARNINGS BY WAY OF COM MISSION AGENCY IN RESPECT OF MEDICAL GOODS OF VCPL AND M/S MATRIX BIO-MEDICS PVT. LTD.. IT HAS ALSO BEEN EXPLAINED THAT ASSESSEE IS A DIRECTOR OF VCPL. THE LD. REPRESENTATIVE EXPLAINED THAT IN THE COURSE OF SURVEY ACTION IN M/ S MATRIX BIO-MEDICS PVT. LTD. ONE OF THE DIRECTORS OF THE SAID CONCERN ACCE PTED THAT 70% COMMISSION PAID TO THE ASSOCIATED PARTIES WAS NOT JUSTIFIED AN D IT WAS ADMITTED AS ADDITIONAL INCOME. THE SAID STATEMENT WAS SUBSEQUE NTLY RETRACTED AND THEREAFTER THE SAID CONCERN APPROACHED THE INCOME T AX SETTLEMENT COMMISSION MUMBAI. THE SETTLEMENT COMMISSION MUM BAI VIDE ITS ORDER DATED 14.12.2011 HELD THAT ONLY 30% OF THE TOTAL CO MMISSION PAID BY SAID COMPANY TO ITS ASSOCIATED PARTIES SHOULD BE DISALLO WED. THE LD. REPRESENTATIVE SUBMITTED THAT THE AFORESAID DECISIO N OF THE INCOME TAX SETTLEMENT COMMISSION MUMBAI IN THE CASE OF M/S MA TRIX BIO-MEDICS PVT. LTD. HAS A BEARING ON THE IMPUGNED ADDITION MADE IN THE HANDS OF THE ASSESSEE. THE SAID ORDER OF THE INCOME TAX SETTLEM ENT COMMISSION WAS NOT ITA NO.1490/PN/2013 BEFORE THE CIT(A) AND NON-CONSIDERATION OF THE SAME HAS CAUSED PREJUDICE TO THE ASSESSEE. 5. BEFORE US ASSESSEE HAS FILED A PAPER BOOK WHERE IN THE ORDER OF THE SETTLEMENT COMMISSION MUMBAI IN THE CASE OF M/S MA TRIX BIO-MEDICS PVT. LTD. DATED 14.12.2011 AS ALSO THE ORDER OF THE TRIB UNAL IN THE CASE OF M/S MATRIX BIO-MEDICS PVT. LTD. VS. ACIT VIDE ITA NO.24 06 2407 & 2408/PN/2012 DATED 31.07.2013 FOR VARIOUS ASSESSMENT YEARS HAS B EEN PLACED WHEREIN ISSUE OF THE ALLOWABILITY OF COMMISSION EXPENSES HA S BEEN DECIDED IN THE LIGHT OF THE ORDER OF THE SETTLEMENT COMMISSION MUMBAI D ATED 14.12.2011. 6. IN THE COURSE OF HEARING BEFORE US THE LD. DEPA RTMENTAL REPRESENTATIVE APPEARING FOR THE REVENUE HAS NOT CO NTESTED ANY OF THE FACTUAL MATRIX BROUGHT OUT BY THE APPELLANT AND HAS ALSO NOT SERIOUSLY DISPUTED THE PLEA OF THE ASSESSEE FOR RESTORING THE MATTER B ACK TO THE FILE OF THE CIT(A) FOR ADJUDICATION AFRESH. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. IT IS QUITE EVIDENT THAT THE CIT(A) HAS TAKEN NOTE OF EXISTENCE OF THE ORDER OF THE SETTLEMENT COMMISSION MUMBAI DATED 14.12.2011 IN THE CASE OF M/S MATRIX BIO-MEDICS PVT. LTD.. SO HOWEVER THE CIT(A) COULD NOT CONSID ER THE SAME AS HE DID NOT HAVE THE BENEFIT OF HAVING THE COPY OF THE SAID ORD ER BEFORE HIM. IN OUR CONSIDERED OPINION IN THE INTEREST OF JUSTICE IT WOULD BE APPROPRIATE THAT THE MATTER IS RESTORED BACK TO THE FILE OF THE CIT(A) T O BE ADJUDICATED AFRESH AFTER ALLOWING THE ASSESSEE A REASONABLE OPPORTUNITY OF P UTTING FORTH HIS SUBMISSIONS BEFORE HIM. THE CIT(A) SHALL CONSIDER THE SUBMISSIONS OF THE ASSESSEE ONLY THEREAFTER HE SHALL ADJUDICATE THE IS SUE AFRESH AS PER LAW. ITA NO.1490/PN/2013 8. IN THE RESULT APPEAL OF THE ASSESSEE IS TREATED AS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH NOVEMBER 2014. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE DATED: 26 TH NOVEMBER 2014. SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-II PUNE; 4) THE CIT-II PUNE; 5) THE DR B BENCH I.T.A.T. PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T. PUNE