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Income Tax Officer & Others Versus Shri Deepak Popatlal Gala & Others

2015 (6) TMI 944 - ITAT MUMBAI

Disallowance of export commission - Held that:- The assessee has failed to furnish the details relating to commission payments and the services rendered by the agent to the assessee. In the absence of such details, one cannot ascertain about the nature of payment, whether Shri Pinkesh Gala has rendered services from outside India, whether the commission payment is chargeable as income in his hands in India. Without ascertaining about the nature of payment, it would be difficult to apply the Circ .....

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o the facts prevailing in the instant case. - Decided in favour of assessee for statistical purposes.

Allowing interest expenditure claimed against the house property income - Held that:- The assessment order shows that the assessee has agreed for the disallowance of the interest so claimed, since it was pointed to him by the AO that the housing loan was not taken in respect of house against which the interest expenditure was claimed. However, the ld. CIT(A) has allowed the claim with .....

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e addition especially in a case where the assessee has discharged its primary onus of showing books of account, payment by way of account payee cheque and producing vouchers for sale of goods, such an addition could not be sustained. On a careful perusal of the decision rendered by Ld CIT(A) would show that the first appellate authority has analysed the issue in all angles and applied the ratio laid down by the High Courts and Tribunals in deciding this issue. Hence, we do not find any reason to .....

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CIT(A): a) in confirming the disallowance of export commission; b) in deleting the interest u/s 234B, 234C and 234D and setting aside the initiation of penalty proceedings u/s 271(1)(c) of the Income Tax Act, 1961 (the Act). 3. The Revenue is also in appeal in respect of following issues : a) Allowing interest expenditure claimed against the house property income; b) Deleting the addition made u/s 69C of the Act relating to purchases. 4. We have heard the parties and perused the records. The ass .....

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8377; 14.39 lakhs claimed by the assessee. The AO noticed that the assessee has not deduced tax at source on the commission expenses claimed by him. It was noticed that the commission payment was made to one Shri Pinkesh Gala. The AO asked the assessee to furnish the details of commission paid along with the details of services rendered by the agent and also the reasons for not deducting the tax at source. The assessee submitted that the Shri Pinkesh Gala is a non-resident and he is operating fr .....

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and further the AO also invoked Explanation-II given below to Section 195 of the Act. Accordingly, the AO took the view that the assessee should have deducted tax at source from the Commission payment and since there was failure to do so, he disallowed commission expenditure of ₹ 14.39 lakhs by invoking the provisions of section 40(a)(i) of the Act. The AO also placed reliance on the decision rendered by Authority for Advance Ruling in the case of M/s SKF Boilers and Driers Pvt.Ltd. The ld .....

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hnology Pvt Ltd (343 ITR 366) (Del) and also the decision rendered by the Hon ble Supreme Court in the case of GE India Technology Centre Private Limited reported in 327 ITR 456 (SC). On the other hand, the Ld D.R placed strong reliance on the order of the Ld CIT(A) and also submitted that the assessee has failed to furnish the details relating to alleged commission payment. 7. The Hon ble Supreme Court in the case of GE India Technology Centre Private Ltd (supra) has made it clear that the TDS .....

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the absence of such details, one cannot ascertain about the nature of payment, whether Shri Pinkesh Gala has rendered services from outside India, whether the commission payment is chargeable as income in his hands in India. Without ascertaining about the nature of payment, it would be difficult to apply the Circulars of CBDT and also the decisions of Hon ble Supreme Court or High Courts or Tribunal. Accordingly, we are of the view that this issue requires fresh examination at the end of the AO. .....

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ating to initiation of penalty proceedings is premature and hence they do not require any adjudication at this juncture. 9. In the appeal by the Revenue, the first issue relates to the allowance of interest of ₹ 1,50,000/- claimed by the assessee against the House property income. The assessment order shows that the assessee has agreed for the disallowance of the interest so claimed, since it was pointed to him by the AO that the housing loan was not taken in respect of house against which .....

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e assessee during the year under consideration was ₹ 7,36,27,555/-. The AO noticed that the Sales Tax Department of Government of Maharashtra has listed out names of certain dealers, who were alleged to have been providing accommodation entries without doing actual business. The AO noticed that the assessee made purchases to the tune of ₹ 38.69 lakhs from two parties named M/s Umiya Sales Agency Pvt Ltd and M/s Mercury Enterprises, whose names found place in the list provided by the .....

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er. 13. On the other hand, the ld. AR submitted that the additions made in the case of some other assesses on identical reasons have been deleted by the Co-ordinate Benches of the Tribunal in the following cases : a) Ramesh Kumar and Co V/s ACIT in ITA No.2959/Mum/2014 (AY-2010-11) dated 28.11.2014; b) DCIT V/s Shri Rajeev G Kalathil in ITA No.6727/Mum/2012 (AY-2009-10) dated 20.8.2014; and c) Shri Ganpatraj A Sanghavi V/s ACIT in ITA No. 2826/Mum/2013 (AY-2009-10) dated 5.11.2014 In all the abo .....

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