AASHIYANA JAIPUR DEVELOPERS (P) LIMITED, JAIPUR v. PR. COMMISSIONER OF INCOME TAX-III JAIPUR, JAIPUR

ITA 713/JPR/2019 | 2014-2015
Pronouncement Date: 25-11-2019 | Result: Dismissed

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Appeal Details

RSA Number 71323114 RSA 2019
Assessee PAN AAKCA8845Q
Bench Jaipur
Appeal Number ITA 713/JPR/2019
Duration Of Justice 6 month(s) 9 day(s)
Appellant AASHIYANA JAIPUR DEVELOPERS (P) LIMITED, JAIPUR
Respondent PR. COMMISSIONER OF INCOME TAX-III JAIPUR, JAIPUR
Appeal Type Income Tax Appeal
Pronouncement Date 25-11-2019
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 25-11-2019
Last Hearing Date 03-09-2019
First Hearing Date 03-09-2019
Assessment Year 2014-2015
Appeal Filed On 16-05-2019
Judgment Text
VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENC HES B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO JM & SHRI VIKRA M SINGH YADAV AM VK;DJ VIHY LA- @ ITA NO. 713/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2014-15 AASHIYANA JAIPUR DEVELOPERS (P) LIMITED OPP. CHAKSU THANA TONK ROAD CHAKSU JAIPUR CUKE VS. PR. CIT-III JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAKCA8845Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P. D. KARNANI (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI B. K. GUPTA (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 07/11/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 25/11/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. PR. CIT-III JAIPUR DATED 15.03.2019 WHEREIN THE ASSESSEE HAS TA KEN THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE A ND IN LAW THE LEARNED PR. COMMISSIONER OF INCOME TAX-III JAIPUR ERRED IN INVOKING THE PROVISION OF THE SECTION 263 OF THE INCOME TAX ACT WITHOUT APPRECIATING THE FACTS THAT THE ASSESSMENT ORDER UNDER CONSIDERA TION WAS PASSED AFTER THOROUGH EXAMINATION AND ENQUIRY REGARDING THE PAY MENT OF COMMISSION FOR SELLING THE RESIDENTIAL PLOT OF THE COMPANY. 2. THE LEARNED PR. COMMISSIONER OF THE INCOME TAX-I II JAIPUR ALSO ERRED IN BRUSHING ASIDE ALL OUR SUBMISSION MADE NOT ONLY AT THE TIME OF ASSESSMENT PROCEEDINGS BEFORE AO BUT ALSO DURING H EARING OPPORTUNITY GIVEN UNDER SECTION 263 OF INCOME TAX ACT. ITA NO. 713/JP/2019 AASHIYANA JAIPUR DEVELOPERS (P) LTD. JAIPUR VS. P R. CIT-III JAIPUR 2 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LEARNED PR. COMMISSIONER OF INCOME TAX-III JAIPUR WAS NOT JUST IFIED IN SETTING ASIDE THE ORDER OF THE ASSESSING OFFICER. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT T HE ASSESSMENT IN THIS CASE WAS COMPLETED U/S 143(3) ON 30.11.2016 ASSESSING TO TAL INCOME AT RS. 21 93 000/-. SUBSEQUENTLY A SHOW CAUSE U/S 26 3 WAS ISSUED BY THE PR. CIT ON 16.01.2019 AND AFTER TAKING INTO CONSIDERATI ON THE SUBMISSIONS OF THE ASSESSEE THE ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) WAS SET ASIDE FOR THE LIMITED PURPOSES OF EXAMINING THE ALLOWABIL ITY OF THE COMMISSION EXPENSES CLAIMED BY THE ASSESSEE COMPANY. AGAINST THE SAID FINDINGS OF THE LD. PR. CIT THE ASSESSEE IS NOW IN APPEAL BEFORE U S. 3. DURING THE COURSE OF HEARING THE LD. AR SUBMITT ED THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE. FURTHER THERE IS NEITHER LACK OF INQUIRY OR INADEQUATE INQUIRY REGARDING THE PAYMENT OF COMMISSION PAID BY THE ASSESSING OFFICER FOR SELLING ITS PLOTS OR SHOPS AN D THEREFORE THE CONDITIONS FOR INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT A RE ABSENT IN THE INSTANT CASE. IT WAS SUBMITTED THAT THE LD. PR. CIT HAS MISAPPREH END THE FACTS OF THE CASE THAT THE APPELLANT COMPANY HAS PAID THE COMMISSION IN THE YEAR UNDER CONSIDERATION AND NO COMMISSION WAS PAID IN THE PRE VIOUS FINANCIAL YEAR. IT WAS SUBMITTED THAT IN PREVIOUS FINANCIAL YEAR THE COMPANY HAS PAID A COMMISSION OF RS. 50 53 305/- AND THE SAME IS APPAR ENT FROM THE FINANCIAL STATEMENT OF THE ASSESSEE COMPANY. IT WAS FURTHER S UBMITTED THAT THE LD. PR. CIT JAIPUR HAS OPINED THAT PROPER INQUIRIES AND VE RIFICATION WAS NOT MADE BY THE ASSESSING OFFICER BEFORE PASSING THE ASSESSMENT ORDER REGARDING THE PAYMENT OF THE SELLING COMMISSION BY APPELLANT COMP ANY TO BROKERS/AGENTS FOR SELLING ITS PLOTS AND SHOPS. IN THIS REGARD OUR AT TENTION WAS DRAWN TO THE NOTICE ITA NO. 713/JP/2019 AASHIYANA JAIPUR DEVELOPERS (P) LTD. JAIPUR VS. P R. CIT-III JAIPUR 3 ISSUED BY THE ASSESSING OFFICER U/S 142(1) OF THE A CT DATED 24.06.2016 WHEREIN VIDE QUERY NO. 25 THE APPELLANT COMPANY WAS ASKED TO FILE THE DETAILS OF PAYMENTS OF COMMISSION IN THE PRESCRIBED FORMAT. I T WAS SUBMITTED THAT THE ASSESSEE COMPANY IN COMPLIANCE TO THE SAME HAS VIDE LETTER DATED 11.11.2016 SUBMITTED THE DETAILS OF COMMISSION. FURTHER DURIN G THE ASSESSMENT PROCEEDINGS THE ASSESSEE COMPANY PRODUCED ALL THE BOOKS OF ACCOUNTS AS WELL AS RELEVANT DOCUMENTS BEFORE THE ASSESSING OFFICER WHICH CONTAINED THE COMPLETE DETAILS LIKE NAME OF THE BROKER HIS ADDRE SS PAN DETAILS AMOUNT OF COMMISSION PAID DETAILS OF PLOTS/SHOPS SOLD BY RES PECTIVE BROKER AMOUNT OF TDS RATE OF COMMISSION AND REGISTERED VALUES OF TH E PLOTS/SHOP SOLD BY THESE BROKERS. IT WAS ACCORDINGLY SUBMITTED THAT THE ASSE SSING OFFICER HAS THOROUGHLY EXAMINED THE MATTER BY CALLING THE SPECIFIC DETAILS AND THE EXPLANATIONS ON THE ISSUE INVOLVED. REGARDING EXPLANATION-2 INSERTED BY FINANCE ACT 2015 WITH EFFECT FROM 01.06.2015 INVOKED BY THE LD PR CIT TH E LD. AR SUBMITTED THAT THE SAID EXPLANATION NO WAY MEANS THAT THE ENQUIRES SHO ULD HAVE BEEN MADE IN THE MANNER AS DESIRED BY PR. CIT. IT WAS SUBMITTED THAT THE SAID EXPLANATION DOES NOT AUTHORIZE OR GIVE UNFETTERED POWERS TO THE LD. PR. CIT TO REVISE EACH AND EVERY ORDER. IF THAT BE THE CASE THEN THE LD. PR. CIT CAN FIND FAULT WITH EACH AND EVERY ASSESSMENT ORDER. SHE CAN ALSO FORCE THE AO TO CONDUCT THE ENQUIRIES IN THE MANNER PREFERRED BY HER THUS PREJ UDICING THE INDEPENDENT APPLICATION OF MIND BY THE ASSESSING OFFICER. IT W AS SUBMITTED THAT THE SAME COULD NOT BE THE INTENTION OF THE LEGISLATURE IN IN SERTING EXPLANATION 2 TO SECTION 263 OF THE ACT SINCE IT WOULD LEAD TO UNENDING LIT IGATIONS AND THERE WOULD NOT BE ANY POINT OF FINALITY IN THE LEGAL PROCEEDINGS. IN THE PRESENT CASE THE ASSESSING OFFICER COLLECTED NECESSARY DETAILS EXAM INED THE SAME AND THEN FRAMED THE ASSESSMENT ORDER U/S 143(3) OF THE ACT. IT WAS FURTHER SUBMITTED THAT EVEN LD. PR. CIT IS ALSO NOT CONFIDENT ENOUGH IN HOLDING THE ASSESSMENT ORDER AS ERRONEOUS WHICH IS CAUSING PREJUDICE TO TH E INTEREST OF THE REVENUE AS SHE HAS GIVEN THE FINDINGS THAT SOME ASPECTS OF THE ISSUE SHOULD BE SEEN BY ITA NO. 713/JP/2019 AASHIYANA JAIPUR DEVELOPERS (P) LTD. JAIPUR VS. P R. CIT-III JAIPUR 4 THE AO AND THAT TOO ONLY ON TEST CHECK BASIS. FURTH ER RELIANCE WAS PLACED ON HONBLE SUPREME COURT DECISION IN CASE OF MALABAR I NDUSTRIAL CO. LTD VS CIT 109 TAXMAN 66 AND VARIOUS HIGH COURT DECISIONS. IT WAS ACCORDINGLY SUBMITTED THAT THE ORDER OF THE LD PR CIT SHOULD BE SET-ASIDE . 4. PER CONTRA THE LD. CIT DR SUBMITTED THAT THE CA SE OF THE ASSESSEE WAS SELECTED FOR COMPLETE SCRUTINY UNDER CASS AND REASO N FOR SUCH SELECTION IS LARGE COMMISSION AND LOW NET PROFIT. IN THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER CALLED FOR DETAILS OF COMMISS ION IN THE PRESCRIBED FORMAT AS PER WHICH NAME AND ADDRESS NATURE OF WORK DONE AMOUNT OF COMMISSION PAID AMOUNT OF TDS AND RATE OF TDS WERE ASKED. TH E ASSESSEE COMPANY IN RESPONSE THERETO DID NOT SUBMIT THE DETAILS IN THE REQUIRED FORMAT BUT SUBMITTED LEDGER ACCOUNT OF COMMISSION PAID FOR THE PERIOD 01.04.2013 TO 31.03.2014 A FEW CONFIRMATIONS OF LEDGER ACCOUNT A ND LATER SUBMITTED DETAILS SUCH AS NAME OF THE PARTIES PAN AMOUNT PAID AND T DS DEDUCTED. IT IS SEEN THAT EVEN COMPLETE ADDRESS OF EACH RECIPIENT WERE N OT MENTIONED NOR WAS THERE ANY MENTION OF WORK DONE/PLOTS SOLD/NAME & AD DRESS OF THE PURCHASERS INTRODUCED BY THESE BROKERS. THERE IS NO LINKAGE TO THE WORK DONE OR PLOTS SOLD ALONG WITH DOCUMENTARY EVIDENCE ON RECORD. THE ASS ESSING OFFICER ACCEPTED THE PAYMENT OF COMMISSION MERELY ON THE BASIS OF DE TAILS OF PAYMENT MADE AND TDS DEDUCTED THEREON. NO DOUBT THE ASSESSEE COM PANY SUBMITTED DETAILS IN RESPECT OF PAYMENTS MADE TOWARDS COMMISSION TDS DEDUCTED THEREFROM BUT THAT IS NOT ENOUGH FOR CLAIMING IT AS BUSINESS EXPENDITURE. THE PAYMENT OF COMMISSION BY CHEQUE DEDUCTION OF TDS THEREON ETC. ARE NOT ENOUGH FOR DECIDING THE ALLOWABILITY OF COMMISSION EXPENDITURE UNLESS ASSESSEE ESTABLISHES THAT THESE PAYMENTS WERE MADE FOR THE PURPOSE OF BU SINESS. THE ASSESSING OFFICER NEITHER COLLECTED ANY DETAIL NOR CONDUCTED ANY INQUIRY NOR MADE ANY FURTHER VERIFICATION WITH RESPECT TO SERVICES RENDE RED/PLOTS SOLD VIA COMMISSION AGENTS/BROKERS BEFORE COMPLETING THE ASSESSMENT WHI CH WAS ESSENTIAL IN THE ITA NO. 713/JP/2019 AASHIYANA JAIPUR DEVELOPERS (P) LTD. JAIPUR VS. P R. CIT-III JAIPUR 5 FACTS OF THIS CASE BEFORE ALLOWING THE CLAIM OF THE SAID EXPENDITURE. IT WAS FURTHER SUBMITTED THAT DURING THE COURSE OF REVISIO N PROCEEDING THE ASSESSEE COMPANY WAS ASKED TO JUSTIFY THE PAYMENT OF COMMISS ION ALONG WITH SUPPORTING DOCUMENTS BY RELATING THE SAME TO THE SA LE OF PLOTS. THE ASSESSEE COMPANY SUBMITTED THE DETAILS IN THE FORM OF A CHAR T VIDE LETTER DATED 18.02.2019 AND FURTHER SUBMISSIONS WERE FILED VIDE LETTER DATED 05.03.2019 AND THE SAME HAVE BEEN DULY EXAMINED BY THE LD PR CIT A ND SHE HAS GIVEN HER FINDINGS AT PARA 7 & 8 OF THE ORDER WHICH READS AS UNDER: 7. THE FOLLOWING POINTS ARE NOTED WITH REGARD TO T HE CLAIM OF COMMISSION BY THE ASSESSEE COMPANY: I. ASSESSEE COMPANY WAS INCORPORATED IN THE YEAR 2012 AND THIS BEING THE SECOND YEAR OF ITS OPERATIONS. II. ASSESSEE HAS PAID COMMISSION OF RS. 1 75 28 486/- AGAINST TURNOVER OF RS. 5 45 09 089/- WHICH CONSTIT UTES 32.15% OF THE TURNOVER AS AGAINST THE PAYMENT OF COMMISSION OF RS. 50 53 305/- ( 16 92% OF TURNOVER) IN A.YR. 2013-14. III. THE PAYMENT OF COMMISSION IS SPREAD ACROSS 70 PARTI ES AND MOST FROM OUTSIDE JAIPUR. IV RATE OF COMMISSION VARIES FROM RS. 80/SQ. YARD T O RS. 400/SQ. YARD. THE RATE EVEN WITHIN THE SAME SCHEME FOR EXAMPLE IN IPV SCHEME VARIES FROM RS. 100/SQ. YARD TO 400/SQ. YARD THEREFORE ASSESSEE'S REASONING THAT DEPENDING UPON THE LOCATION/AREA ETC. THE RATE OF COMMISSION VARIES IS NOT PRIMA-FACIE ACCEPTABLE. ITA NO. 713/JP/2019 AASHIYANA JAIPUR DEVELOPERS (P) LTD. JAIPUR VS. P R. CIT-III JAIPUR 6 V. ALL THESE DETAILS LINKING THE COMMISSION TO THE SALE OF PLOTS WAS NOT BEFORE THE AO AND AO DID NOT EXAMINE AND VERIFY THE FACTS STATED THEREIN. VI DURING THE COURSE OF PRESENT PROCEEDINGS NO DOCUMENTARY EVIDENCE WAS PRODUCED TO DEMONSTRATE THAT THE TRANSACTIONS OF SALE OF PLOTS WERE NEGOTIA TED THROUGH THE BROKER CONCERNED. ASSESSEE ONLY SUBMITT ED THAT AT THE BACK OF EACH REGISTRY THE NAME OF THE B ROKER AND AMOUNT OF COMMISSION IS WRITTEN. COPY OF FEW DEEDS WERE SUBMITTED WHEREIN ON THE BACKSIDE OF LAS T PAGE SUCH DETAILS WERE MENTIONED IN PENCIL. IT IS A LSO NOTED THAT IN THESE DEEDS THERE IS NO MENTION OF BR OKER CONCERNED NOR HAS HE SIGNED THERE AS WITNESS. VII DURING THE COURSE OF PRESENT PROCEEDINGS ASSESSEE ALSO SUBMITTED AFFIDAVIT FROM 4 PARTIES TO WHOM COMMISSI ON WAS PAID. THESE AFFIDAVITS ARE OF IDENTICAL FORMAT ACKNOWLEDGING THE RECEIPT OF COMMISSION FOR SELLING OF PLOTS BUT NO DETAILS OF SUCH PLOTS ARE GIVEN. IT DO ES NOT MENTION ANYTHING ABOUT THE PERSONS WHO WERE INTRODUCED BY HIM AND TO WHOM THE PLOTS WERE SOLD. 8. IN VIEW OF THE ABOVE STATED FACTS AND IN THE CIR CUMSTANCE AO SHOULD HAVE CARRIED OUT FURTHER ENQUIRIES BEFORE AC CEPTING THE CLAIM OF COMMISSION. THOUGH THE CASE WAS SELECTED ON THE REASONS OF PAYMENTS OF LARGE COMMISSION & LOW NET PROFIT AO N EITHER COLLECTED REQUISITE DETAILS NOR CONDUCTED ANY INQUIRY TO VERI FY THE CLAIM OF THE ASSESSEE. AO ACCEPTED THE CLAIM MERELY ON THE BASIS OF PAYMENT DETAILS AND TDS DEDUCTED THEREFROM AND COMPLETED TH E ASSESSMENT SIMPLY BY MAKING AD-HOC DISALLOWANCE OF RS. 60 000/ - FOR WANT OF ITA NO. 713/JP/2019 AASHIYANA JAIPUR DEVELOPERS (P) LTD. JAIPUR VS. P R. CIT-III JAIPUR 7 PROPER BILLS AND DISALLOWANCE OF RS. 74 000/-WAS MA DE OUT OF ADVERTISEMENT EXPENSES FOR NON-DEDUCTION OF TDS U/ S 40(A)(IA) OF THE ACT AND WITHOUT LOOKING INTO ALL THE ASPECTS RE LATING TO THE CLAIM OF COMMISSION WHICH CLEARLY SHOWS NON-APPLICATION OF MIND BY THE AO. IT IS NOT A CASE WHERE AO ENQUIRED INTO ALL ASP ECTS COLLECTED REQUISITE DETAILS AND THEN HE HAS TAKEN A VIEW ON T HE ISSUE IN HAND. IN VIEW OF THE ABOVE IT IS EVIDENT THAT THE AO PAS SED THE ORDER WITHOUT MAKING NECESSARY INQUIRIES/VERIFICATION WHI CH OUGHT TO HAVE BEEN MADE' IN THIS CASE BEFORE ALLOWING THE CLAIM O F COMMISSION. THE ASSESSMENT ORDER PASSED BY THE AO IS THEREFORE HELD TO BE ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT EREST OF REVENUE. THE ORDER PASSED BY THE AO IS ALSO HELD TO BE ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE IN TERM OF C LAUSE (A) OF EXPLANATION 2 TO SEC. 263 OF THE ACT. IT WAS ACCORDINGLY SUBMITTED THAT THERE IS NO ILLEG ALITY IN THE EXERCISE OF JURISDICTION BY THE LD. PR. CIT U/S 263 AND THE ORD ER SO PASSED BY THE PR. CIT MAY ACCORDINGLY BE CONFIRMED. FURTHER RELIANCE WAS PLACED ON THE DECISION OF HONBLE SUPREME COURT IN CASE OF DANIEL MERCHANTS P RIVATE LIMITED AND OTHERS (SLP NO. 23976/2017 DATED 29.11.2017). 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE CASE OF THE ASSESSEE COMPANY WAS SELEC TED FOR SCRUTINY FOR THE PURPOSES OF VERIFICATION OF LARGE COMMISSION EXPEND ITURE CLAIMED WHILE FILING ITS RETURN OF INCOME. THEREFORE IT WAS INCUMBENT ON P ART OF THE ASSESSING OFFICER TO CARRY OUT THE NECESSARY EXAMINATION AND INVESTIG ATION WHICH ANY OFFICER WITH A REASONABLE INTELLECT FACED WITH A SIMILAR MATTER WOULD HAVE CARRIED OUT. IN THE INSTANT CASE THE ASSESSING OFFICER ISSUED NOTICE U /S 142(1) DATED 24.06.2016 AND AS PART OF THE STANDARD QUESTIONNAIRE ATTACHED THERETO AT POINT NO. 25 HAD ASKED THE ASSESSEE TO SUBMIT THE DETAILS SUCH AS NA ME AND ADDRESS OF THE ITA NO. 713/JP/2019 AASHIYANA JAIPUR DEVELOPERS (P) LTD. JAIPUR VS. P R. CIT-III JAIPUR 8 PERSON TO WHOM THE COMMISSION WAS PAID NATURE OF W ORK DONE AMOUNT OF COMMISSION PAID TDS AND RATE OF TDS AND THE MATTER WAS FIXED FOR HEARING ON 8.7.2016. THEREAFTER ON 11.11.2016 THE ASSESSEE SUBMITTED THE DETAILS OF COMMISSION EXPENSES AND TDS THEREON. THE KIND OF D ETAILS WHICH WERE SUBMITTED AND THE LINE OF ENQUIRY BY THE ASSESSING OFFICER CAN BE APPRECIATED BY SUBSEQUENT ASSESSEES LETTER DATED 25.11.2016 AN D THE RELEVANT EXTRACT THEREOF READS AS UNDER: WITH REFERENCE TO ABOVE SAID SUBJECT IN CONTINUOU S TO OUR LAST HEARING AND AS DESIRED BY YOUR HONOR WE ARE PLEASED TO SUBM IT AS FOLLOWS: AT THE TIME OF LAST HEARING YOUR HONOR HAS ASKED US GIVE THE PERSON WISE LIST OF THE PERSONS TO WHOM WE HAVE PAID THE COMMIS SION. IN THIS REGARD WE ARE ENCLOSING HEREWITH A SEPARATE STATEMENT CONT AINING THE NAME OF THE PERSONS AS WELL AS AMOUNT PAID TO HIM. WE ARE A LSO MENTIONING THE INDIVIDUAL PAN OF ALL THE PERSONS. YOUR HONOR HAS ALSO ASKED TO US TO GET THE AMOUNT P AID CONFIRMED FROM THESE PERSONS. IN THIS REGARD PLEASE NOTE THAT WE H AVE ALREADY FILED THE COPIES OF CONFIRMATIONS LETTERS FROM SOME OF THE PE RSONS. 6. THEREFORE THE DETAILS SO SUBMITTED ARE NAME OF THE PERSONS THEIR PAN NUMBER AMOUNT OF COMMISSION PAID AND TDS THEREON A ND THAT TOO AS PART OF LATTER SUBMISSION DATED 25.11.2016 AND SOME CONFIRM ATION LETTERS WERE FILED EARLIER. TAKING THE SAID BARE MINIMUM INFORMATION ON FACE VALUE THE ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFICER A ND ORDER UNDER SECTION 143(3) WAS PASSED ON 30.11.2016 WITHIN FIVE DAYS OF RECEIPTS OF SUCH INFORMATION. THERE IS NO INFORMATION WHICH HAS BEE N SUBMITTED REGARDING THE PAYMENT OF COMMISSION AND ITS LINKAGE WITH WHICH PL OTS AND SCHEME LAUNCHED BY THE ASSESSEE COMPANY AND WHETHER SUCH PLOTS HAVE BEEN SOLD OR MERELY BOOKED AND ANY DOCUMENTATION TO CORROBORATE THE SAM E. WE THEREFORE FIND ITA NO. 713/JP/2019 AASHIYANA JAIPUR DEVELOPERS (P) LTD. JAIPUR VS. P R. CIT-III JAIPUR 9 THAT FIRSTLY THE ASSESSEE HAS NOT SUBMITTED COMPLE TE DETAILS AS SOUGHT BY THE ASSESSING OFFICER INITIALLY AND LATER WHEN PART IN FORMATION WAS RECEIVED THE SAME WAS KEPT ON FILE AND ASSESSMENT ORDER PASSED W ITHIN FIVE DAYS OF RECEIPT THEREOF. THERE IS NOTHING ON RECORD WHICH SUGGESTS THAT THE ASSESSING OFFICER CARRIED OUT ANY THOROUGH EXAMINATION OF THESE TRANS ACTIONS. THE ASSESSING OFFICER SIMPLY ACCEPTED THE SUBMISSIONS OF THE ASSE SSEE THAT COMMISSION PAYMENTS HAVE BEEN MADE TO RESPECTIVE INDIVIDUALS A ND TDS DEDUCTED THEREON. THE PAYMENT OF COMMISSION AND DEDUCTION OF TDS THEREON IS NOT ENOUGH FOR DECIDING THE ALLOWABILITY OF COMMISSION EXPENDITURE UNLESS ASSESSEE ESTABLISHES THAT THESE PAYMENTS WERE MADE FOR THE P URPOSE OF BUSINESS. THEREFORE WE AGREE WITH THE CONTENTION OF THE LD C IT DR THAT ASSESSING OFFICER NEITHER COLLECTED RELEVANT DETAIL NOR CONDUCTED ANY INQUIRY NOR MADE ANY FURTHER VERIFICATION WITH RESPECT TO SERVICES RENDE RED/PLOTS SOLD VIA COMMISSION AGENTS/BROKERS BEFORE COMPLETING THE ASSESSMENT WHI CH WAS ESSENTIAL IN THE FACTS OF THIS CASE BEFORE ALLOWING THE CLAIM OF THE SAID EXPENDITURE. 7. FURTHER WE FIND THAT IT IS ONLY DURING THE REVI SIONARY PROCEEDINGS BEFORE THE LD PR CIT THAT THE ASSESSEE HAS SUBMITTED FURTH ER DETAILS AS LISTED AT PAGE 44-61 OF THE PAPER BOOK AND WHICH HAVE BEEN EXAMINE D BY THE LD PR CIT WHERE SHE HAS HIGHLIGHTED GLARING DISCREPANCIES IN PARA 7 & 8 OF HER ORDER AS WE HAVE NOTED ABOVE. WE THEREFORE FIND THAT IT IS C LEARLY A CASE OF LACK OF ENQUIRY AND REFERENCE CAN BE DRAWN TO OBSERVATIONS OF THE COORDINATE BENCH IN CASE OF SUBHLAKSHMI VANIJYA (P.) LTD. VS COMMISSION ER OF INCOME-TAX-I KOLKATA REPORTED IN 60 TAXMANN.COM 60 (KOLKATA - T RIB.) WHEREIN IT WAS HELD UNDER: IT IS IMPERATIVE FOR THE ASSESSING OFFICER TO COND UCT ENQUIRY TO SATISFY HIMSELF ABOUT THE GENUINENESS OF TRANSACTIONS. SCOP E OF THE TERM 'ENQUIRY' CAN BE DIVERSE IN DIFFERENT CIRCUMSTANCES . THERE CANNOT BE STRAIGHT JACKET FORMULA TO POSITIVELY CONCLUDE AS T O CONDUCTING OR NON- ITA NO. 713/JP/2019 AASHIYANA JAIPUR DEVELOPERS (P) LTD. JAIPUR VS. P R. CIT-III JAIPUR 10 CONDUCTING OF 'ENQUIRY' BY THE ASSESSING OFFICER. I T DEPENDS ON THE FACTS AND CIRCUMSTANCES OF EACH CASE. WHERE THE FACTS ARE JUST ORDINARY AND PRIMA FACIE THERE IS NOTHING UNTOWARD THE RECORDED TRANSACTION IN SUCH CIRCUMSTANCES THE OBTAINING OF THE DOCUMENTS AND T HE APPLICATION OF MIND THEREON WITHOUT A FURTHER OUTSIDE ENQUIRY MA Y MEAN THAT THE ASSESSING OFFICER DID CONDUCT ENQUIRY LEAVING THE QUESTION OPEN AS TO WHETHER IT WAS A PROPER OR AN IMPROPER ENQUIRY. BUT WHERE THE FACTUAL SCENARIO OF A CASE PRIMA FACIE INDICATES ABNORMALIT IES AND CRY FOR LOOKING DEEP INTO IT THEN A MERE COLLECTION OF DOCUMENTS C ANNOT BE HELD AS CONDUCTING ENQUIRY LEAVE ASIDE ADEQUATE OR INADEQ UATE. IN SUCH LATER CASES ONLY WHEN THE ASSESSING OFFICER AFTER COLLE CTION OF THE INITIAL DOCUMENTS EMBARKS UPON FURTHER INVESTIGATION THAT IT CAN BE SAID THAT HE INITIATED ENQUIRY. WHERE THE FACTS OF A PARTICUL AR TRANSACTION CRY HOARSE ABOUT ITS NON-GENUINENESS AND EVEN A CASUAL LOOK AT SUCH FACTS PRIMA FACIE DIVULGES FOUL PLAY THEN THE ALARM BEL L MUST RING IN THE MIND OF THE ASSESSING OFFICER FOR MAKING FURTHER EXAMINA TION. COLLECTION OF PAPERS ON RECORD IN SUCH CIRCUMSTANCES CANNOT BE CO NSTRUED AS CONDUCTING A PROPER ENQUIRY. IF IN SUCH CIRCUMSTANC ES THE ASSESSING OFFICER SIMPLY GATHERS DOCUMENTS AND KEEPS THEM ON RECORD THEN SUCH NOMINAL ENQUIRY FALLS WITHIN THE OVERALL CATEGORY O F 'NO ENQUIRY' BECAUSE OF THE INACTION ON THE PART OF THE ASSESSING OFFICE R TO READ A WRITING ON THE WALL. 8. IN THE INSTANT CASE WHERE THERE ARE COMMISSION PAYMENTS WHICH CONSTITUTE 32.15% OF ASSESSEES TURNOVER WHICH SEEM S QUITE UNUSUAL IN THE ASSESSEES LINE OF BUSINESS AND RATE OF COMMISSION WITHIN THE SAME PROJECT/SCHEME VARIOUS FROM RS 100/SQ YARD TO RS 40 0/SQ YD AND THE COMMISSION PAYMENT HAVE BEEN MADE TO OVER 70 PARTIE S MOSTLY OUTSIDE THE CITY OF JAIPUR AND MORE SO WHEN THE MATTER WAS SEL ECTED FOR THE PRECISE ITA NO. 713/JP/2019 AASHIYANA JAIPUR DEVELOPERS (P) LTD. JAIPUR VS. P R. CIT-III JAIPUR 11 REASON OF EXAMINATION OF SUCH HUGE COMMISSION PAYME NTS IT IS ORDINARILY EXPECTED THAT THE ASSESSING OFFICER EXAMINE THESE T RANSACTIONS THOROUGHLY RATHER THAN JUST RELYING ON THE INFORMATION SUBMITT ED BY THE ASSESSEE COMPANY. IT IS NOT A QUESTION OF KIND AND EXTENT OF ENQUIRY AND HENCE A DIFFERENCE OF APPROACH AND METHODOLOGY OF EXAMINATION OF A PARTIC ULAR TRANSACTION AS DONE BY THE AO AND AS SUGGESTED BY THE LD PR CIT. NO DO UBT EVERY ASSESSING OFFICER HAS HIS UNIQUE STYLE OF FUNCTIONING AND NO HARD AND FAST RULE CAN BE LAID DOWN AS TO HOW HE SHOULD CONDUCT THE ENQUIRY IN DISCHARG E OF HIS STATUTORY FUNCTIONS. HOWEVER WHERE THE FACTUAL SCENARIO OF A CASE PRIMA FACIE INDICATES ABNORMALITIES AND CRY FOR LOOKING DEEP INTO IT THE N A MERE COLLECTION OF DOCUMENTS CANNOT BE HELD AS CONDUCTING AN ENQUIRY. IN OUR CONSIDERED VIEW IT IS A CLEAR CASE OF LACK OF ENQUIRY ON PART OF THE A SSESSING OFFICER AND THE ORDER THUS PASSED IS CLEARLY ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 9. IN LIGHT OF ABOVE DISCUSSIONS WHERE THE AO SHUT S HIS EYES AND THE LD PCIT DISCOVERS THE GLARING DISCREPANCIES LEADING TO NON-SATISFACTION OF CARDINAL TEST OF ADMISSIBILITY AND ALLOWABILITY OF COMMISSIO N EXPENDITURE DURING THE COURSE OF HIS EXAMINATION OF RECORDS WE DONOT THIN K THERE IS ANY INFIRMITY OR ILLEGALITY IN LD PR CIT EXERCISING HER REVISIONARY JURISDICTION U/S 263 OF THE ACT. IT IS NOT A CASE WHERE THE PR. CIT HAS SET-ASIDE TH E ASSESSMENT ORDER RATHER SHE HAS EXAMINED THESE TRANSACTIONS AND HAS CARRIED OUT BROAD ANALYSIS OF THE DOCUMENTATION SO SUBMITTED BY THE ASSESSEE COMPANY AND HAS COME TO A CONCLUSION THAT THE AO HAS FAILED TO CARRY OUT ADE QUATE ENQUIRIES WHICH HE SHOULD HAVE CONDUCTED ESPECIALLY IN LIGHT OF GLARIN G DISCREPANCIES IN THE DOCUMENTATION SO SUBMITTED BY THE ASSESSEE COMPANY. OUR VIEW IS FORTIFIED BY THE JUDGEMENT OF THE HONBLE SUPREME COURT IN CASE OF DANIEL MERCHANTS PRIVATE LIMITED AND OTHERS (SUPRA) WHERE THE HONBL E SUPREME COURT HAS DISMISSED THE SLP HOLDING AS UNDER: ITA NO. 713/JP/2019 AASHIYANA JAIPUR DEVELOPERS (P) LTD. JAIPUR VS. P R. CIT-III JAIPUR 12 IN ALL THESE CASES WE FIND THAT THE COMMISSIONER OF INCOME TAX HAD PASSED AN ORDER UNDER SECTION 263 OF THE INCOME TAX ACT 1961 WITH THE OBSERVATIONS THAT THE ASSESSING OFFICER DID NOT MAK E ANY PROPER ENQUIRY WHILE MAKING THE ASSESSMENT AND ACCEPTING THE EXPLA NATION OF THE ASSESSEE(S) IN SO FAR AS RECEIPT OF SHARE APPLICATI ON MONEY IS CONCERNED. ON THAT BASIS THE COMMISSIONER OF INCOME TAX HAD AFTER SETTING ASIDE THE ORDER OF THE ASSESSING OFFICER SIMPLY DIRECTED THE ASSESSING OFFICER TO CARRY THOROUGH AND DETAILED ENQUIRY. IT IS THIS OR DER WHICH IS UPHELD BY THE HIGH COURT. WE SEE NO REASON TO INTERFERE WITH THE ORDER OF THE HIGH COURT. 10. BEFORE PARTING WE MAY ADD THAT WE HAVE ALSO G ONE THROUGH OTHER LEGAL AUTHORITIES ON THE SUBJECT AS BROUGHT TO OUR NOTICE BY THE LD AR WHICH HAVE BEEN RENDERED IN THE CONTEXT OF SPECIFIC FACTS AND CIRCUMSTANCES OF THE INDIVIDUAL CASES HOWEVER THE SAME DOESNT SUPPORT THE CASE OF THE ASSESSEE COMPANY. 11. WE ACCORDINGLY UPHELD THE ORDER PASSED BY THE LD PR CIT U/S 263 OF THE ACT SETTING ASIDE THE ASSESSMENT ORDER PASSED BY TH E ASSESSING OFFICER FOR THE LIMITED PURPOSES OF EXAMINING THE ALLOWABILITY OF T HE COMMISSION EXPENSES CLAIMED BY THE ASSESSEE COMPANY. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25/11/2019. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER ITA NO. 713/JP/2019 AASHIYANA JAIPUR DEVELOPERS (P) LTD. JAIPUR VS. P R. CIT-III JAIPUR 13 TK;IQJ@ JAIPUR FNUKAD@ DATED:- 25/11/2019 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- AASHIYANA JAIPUR DEVELOPERS (P) LTD. JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- PR. CIT-III JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR ITAT JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 713/JP/2019} VKNS'KKUQLKJ@ BY ORDER LGK;D IATHDKJ@ ASST. REGISTRAR