PARESH V SHAH, Mumbai v. DCIT-29(2(, Mumbai

MA 253/MUM/2020 | 2013-2014
Pronouncement Date: 04-03-2021 | Result: Allowed

Appeal Details

RSA Number 25319924 RSA 2020
Assessee PAN AAEPS6162P
Bench Mumbai
Appeal Number MA 253/MUM/2020
Duration Of Justice 5 month(s) 4 day(s)
Appellant PARESH V SHAH, Mumbai
Respondent DCIT-29(2(, Mumbai
Appeal Type Miscellaneous Application
Pronouncement Date 04-03-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 04-03-2021
Last Hearing Date 08-01-2021
First Hearing Date 08-01-2021
Assessment Year 2013-2014
Appeal Filed On 28-09-2020
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH M UMBAI BEFORE SHRI SHAMIM YAHYA ACCOUNTANT MEMBER M.A. NO. 253/MUM/2020 (ARISING OUT OF ITA NO. 799/MUM/2019) (ASSESSMENT YEAR: 2013-14) PARESH V. SHAH 1402 14 TH FLOOR CENTRE POINT 90 FT ROAD MULUND (E) MUMBAI-400 081 VS. DY. CIT-29(2) MUMBAI PAN/GIR NO. AAEPS 6162 P ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : MS. RADHA HALBE RESPONDENT BY : MS. SMITA VARMA DATE OF HEARING : 22.01.2021 DATE OF PRONOUNCEMENT : 04.03. 2021 ORDER U/S. 254(2) OF THE INCOME TAX ACT 1961 PER SHAMIM YAHYA A. M.: BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSESS EE SEEKS RECTIFICATION OF MISTAKE U/S. 254(2) OF THE INCOME TAX ACT 1961 (T HE ACT' FOR SHORT) IN THE ORDER OF THIS TRIBUNAL IN ITA NO. 799/MUM/2019 FOR ASSESSMENT YEA R 2013-14 VIDE ORDER DATED 06.02.2020. 2. IN THE MISCELLANEOUS APPLICATION FOLLOWING AVERM ENTS HAVE BEEN DONE: VIDE AN ORDER DATED 06.02.2020 APPLICANT'S APPEAL FOR A.Y. 2013-14 WAS DISPOSED OF AS DISMISSED. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE W AS ENGAGED IN THE BUSINESS OF WHOLESALE OF FERROUS AND NONFERROUS METAL AND ALLOYS. DURING THE COURSE OF SCRUTINY ASSESSMENT THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS PAID COMMISSION TOTALING TO RS.4 37 370/- TO THE FOLLOWING PARTIES WHICH WERE CLAIMED AS EXPE NDITURE: (I) SHRI JITEN N SHAH OF RS. 2 19 255/- (II) SHRI NARENDRA G SHAH OF RS. 2 18 11S/- 2 M.A. NO. 253/MUM/2020 (ASSESSMENT YEAR: 2013-14) THE ASSESSING OFFICER ISSUED A NOTICE U/S 133(6) IN ORDER TO VERIFY THE APPLICANT'S CLAIM OF COMMISSION EXPENDITURE. THE SAID NOTICE U/S 133( 6) RETURNED UNSERVED AS THE SAID PARTIES WERE OUT OF TOWN AT THE TIME WHEN THE NOTIC E WAS INTENDED TO BE SERVED. THE ASSESSEE CONTENDED THAT THE SOLE FACT THAT NOTICE U /S 133(6) RETURNED UNSERVED DOES NOT FORM A VALID GROUND FOR DISALLOWING THE ENTIRE COMM ISSION EXPENDITURE. WITHOUT CONSIDERING THE ASSESSEE'S CONTENTIONS THE ASSESSI NG OFFICER/PASSED AN ORDER MAKING ADDITIONS OF THE ENTIRE AMOUNT OF THE COMMISSION EX PENDITURE AS NON GENUINE AND ALSO MADE ADDITION OF CERTAIN OTHER EXPENSES CONSIDERING THEM TO BE PERSONAL IN NATURE. IN THE COURSE OF APPEAL BEFORE THE CIT(A) / THE APPLICANT SUBMITTED A PAPERBOOK DATED 13.11.2018 CONSISTING OF THE FOLLOWING: (I) WRITTEN SUBMISSION (II) CREDIT NOTE ISSUED TO COMMISSION AGENTS (I II) PAN OF THE SAID PARTIES (IV) FORM 16A DEPICTING TAX DEDUCTED AT SOURCE WHILE MAKING PAYMENTS TO THESE PARTIES (V) BANK STATEMENTS HIGHLIGHTING PAYMENTS MADE TO THE SAID PARTIES. WITHOUT CONSIDERING THE ABOVE AND WITHOUT POINTING OUT ANY DEFECT IN THE ABOVE SUBMISSIONS THE CIT(A) IN ITS ORDER ERRONEOUSLY ST ATED THAT THE APPLICANT COULD NOT SUBMIT ANY EXPLANATION OR EVIDENCE TO SUBSTANTIATE ITS CLAIM FOR COMMISSION EXPENDITURE AND THEREBY DISMISSED THE APPLICANT'S APPEAL. BEFORE THE HON'BLE BENCH APPLICANT CHALLENGED THE CIT(A)'S ORDER ON THE GROUND OF NON CONSIDERATION OF MODIFIED FACTS AND GROUNDS AND MAK ING ADDITIONS TO THE APPLICANT'S INCOME WITHOUT ISSUING A SHOW CAUSE NOTICE AS MANDA TED VIDE INSTRUCTION NO. 20/2015 DATED 29.12.2015 NON CONSIDERATION OF EVIDENCE AND MATERIAL ON RECORD AND ADHOC DISALLOWANCE OF VALIDLY CLAIMED EXPENSES. IN THE CO URSE OF HEARING ON 05.02.2020 BEFORE YOUR HONOURS AUTHORISED REPRESENTATIVE ('AR') OF T HE ASSESSEE TENDERED A COPY OF THE ABOVEMENTIONED PAPERBOOK DATED 13.11.2018 SUBMITTED IN THE COURSE OF HEARING BEFORE THE CIT(A) WHICH ESTABLISHED THE IDENTITY OF THE PA RTIES AND GENUINENESS OF THE TRANSACTION. THE AR IN THE COURSE OF HER ARGUMENTS RAN THROUGH THIS PAPERBOOK DEMONSTRATING THAT THE CREDIT NOTES PAN AND BANK S TATEMENTS OF THE ALLEGED NON GENUINE PARTIES WERE SUBMITTED BEFORE THE CIT(A). SHE ALSO ARGUED THAT THE FINDING OF THE LD. CIT(A) THAT 'THE IDENTITY ADDRESS OR CONFIRMATIONS OF THE ALLEGED NON GENUINE PARTIES COULD NOT BE PRODUCED BY THE ASSESSEE WAS ERRONEOUS . WHILE GIVING THE FINDINGS IN PARA 5 OF THE IMPUGNED ORDER THE HON'BLE BENCH HELD THAT: 'ASSESSEE COULD NOT PROVIDE ANY PROOF OF IDENTITY A ND ADDRESS OF THE TWO PARTIES NOR ANY CONFIRMATION FOR HAVING RECEIVED THE COMMISSION PAY MENT TO THE EXTENT OF 4 37 370/-. I FOUND THAT EVEN BEFORE THE ID. CIT(A) THE ASSESSEE COULD NOT FILE ANY EVIDENCE OR PROOF OF HAVING PAID THE COMMISSION. EVEN BEFORE THE TRIBUNA L THE ID AR CANNOT PLACE ON RECORD ANY EVIDENCE TO SUBSTANTIATE THE IDENTITY AND GENUI NENESS OF THE TRANSACTION OF COMMISSION PAYMENT.' THEREFORE IT IS HUMBLY PRAYED THAT THERE IS A MIST AKE APPARENT FROM RECORD IN THE IMPUGNED ORDER IN PARA 5 WHICH STATES THAT ASSESSEE COULD NOT PROVIDE ANY PROOF OF IDENTITY AND ADDRESS OF THE TWO PARTIES BEFORE THE HON'BLE BENCH AS WELL AS THE CIT(A). MOREOVER THE APPLICANT HAD ALSO RAISED THE FOLLOWI NG GROUND VIDE ITS FORM 36: GROUND NO. 3 : 'ON THE FACTS AND CIRCUMSTANCES AND IN LAW THE LD. CIT(A) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF RS. 52 276/- MADE BY AO OUT OF EXPENSES CLAIMED UNDER VARIOUS HEADS.' 3 M.A. NO. 253/MUM/2020 (ASSESSMENT YEAR: 2013-14) THIS GROUND WAS NEVER ADJUDICATED BY THE BENCH WHIC H ALSO QUALIFIES AS A MISTAKE APPARENT FROM RECORD. I REQUEST THE HONORABLE TRIBUNAL TO KINDLY EXERCISE THE POWERS U/S 254(2) TO RECALL THE ORDER DATED FEBRUARY 02 2020 IN THE INTEREST O F JUSTICE. 3. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RE CORDS. 4. I FIND THAT BY WAY OF THIS MISCELLANEOUS APPLICA TION IT IS THE CONTENTION OF THE LEARNED COUNSEL OF THE ASSESSEE THAT THE ITAT HAS F ELT INTO APPARENT ERROR WHILE UPHOLDING THE DISALLOWANCE OF COMMISSION PAYMENT BY NOT TAKIN G INTO ACCOUNT THE DOCUMENT WHICH WERE SUBMITTED. 5. IT IS THE CONTENTION OF THE LD. COUNSEL OF THE A SSESSEE THAT THE ITAT HAS COMMITTED ERROR IN APPRECIATING THE EVIDENCES BY WAY OF PAPER BOOK WHICH WAS DULY SUBMITTED AND TRIBUNAL MISTAKENLY NOTED THAT NO EVIDENCE HAS BEEN SUBMITTED IN SUPPORT OF THE CLAIM. 6. UPON CAREFUL CONSIDERATION I FIND THAT AS REFLE CTED IN ADJUDICATION BY THE TRIBUNAL AS QUOTED IN THE ABOVE SUBMISSIONS THE TRIBUNAL HA S MISTAKENLY NOTED THAT NOTHING HAS BEEN SUBMITTED BEFORE TRIBUNAL. 7. THUS I NOTE THAT THERE IS AN APPARENT MISTAKE I NASMUCH AS THE TRIBUNAL HAS MISSED OUT THE PAPERBOOK SUBMITTED. MOREOVER THE LAST GRO UND HAS ALSO REMAINED UNADJUDICATED. HENCE I AGREE THAT THE ORDER OF THE TRIBUNAL DESER VES TO BE RECALLED. HENCE THE ORDER OF THE TRIBUNAL IS RECALLED. REGISTRY IS DIRECTED TO F IX THE APPEAL IN NORMAL COURSE ON 17.05.2021. ISSUE NOTICE TO THE PARTIES. 8. ACCORDINGLY THIS MISCELLANEOUS APPLICATION FILE D BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04.03.2021 SD/- (SHAMIM YAHYA) ACCOUNTANT MEMBER MUMBAI; DATED : 04.03.2021 ROSHANI SR. PS 4 M.A. NO. 253/MUM/2020 (ASSESSMENT YEAR: 2013-14) COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR ITAT MUMBAI 6. GUARD FILE BY ORDER (DY./ASSTT. REGISTRAR) ITAT MUMBAI