9911796707
TMI Blog2016 (1) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... cord it was considered appropriate to proceed with the present appeal exparte qua the assessee responded on merit after hearing the Ld. Sr.DR. However, the Ld. Sr.DR filed an adjournment petition stating that it needs to be argued by CIT DR. Considering the material available on record, the said request was rejected. The record shows that in the facts of the present case pursuant to the search conducted on 19.10.2010 in IREO Group of cases wherein the assessee was also covered notice u/s 153A was issued to the assessee on 30.12.2011 requiring the assessee to furnish its return. In pursuance thereto the return as originally filed u/s 139 on 23.09.2008 declaring NIL income with loss in the year under consideration at Rs. 1,46,225/- was again filed. In the course of the assessment proceedings, the assessee was required to substantiate the claim of brokerage charges paid to M/s Ajanta Estate & Developers on account of purchase of land from Sh. Virender K Khosla measuring 29 Bigha 04 Biswa at Vill.-Chhawla, Delhi. The assessee claimed that it has paid brokerage charges amount to Rs. 66,63,987/- beside other expenses. The AO in order to verify the brokerage charges issued a letter u/s 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim was also rejected as the assessee had not produced the broker. Accordingly the brokerage was restricted to 2% instead of 2.8% as claimed by the assessee resulting in the addition by way of a disallowance amounting to Rs. 19,19,247/-. 4. In appeal before the First Appellate Authority, the detailed submissions of the assessee are found reproduced at pages 3 to 8 of the order. A perusal of the same shows that apart from reiterating the facts as canvassed before the AO it was further pleaded that no evidence has been placed on record to justify the estimate at 2%. The adhoc disallowance in the absence of any evidence was assailed. The genuineness of the payment it was submitted has not been questioned and for restricting expenses no evidence has been placed on record. Reliance was placed upon CIT vs Walchand & Co. (P.) Ltd. [1967] 65 ITR 381 (SC);Jamna Auto Industries v CIT [2008] 167 Taxmann 192 (Punjab & Haryana High Court); CIT v Chandulal Keshavlal & Co. p[1960] 38 ITR 601 (SC); and J.K. Commercial Corporation Ltd. v CIT [1969] 72 ITR 296 (Allahabad High Court). The following evidences which remained unrebutted on record was relied upon:- (a) "Copy of Invoice raised by Aja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Broker. It may further be clarified that even though the Ld.AO has alleged that the notice u/s 133(6) went unserved but still he was satisfied regarding the genuineness of brokerage as he has very well accepted the presence of broker in the land deal and has allowed brokerage to the extent of Rs. 4744740/- paid to Ajanta Estate and Developer but arbitrarily on adhoc basis disallowed the brokerage of Rs. 19,19,247/- by restricting the rate of brokerage paid from @ 2.80% to 2%. The appellant had produced more than sufficient evidences like PAN, Invoice, TDS returns to prove the genuineness of brokerage." 1.5.3. "The appellant had entered into a single transaction only with this broker and is not having any other relationship with him therefore appellant company is not in contact with him for the last 5 years so it was not possible for it to enforce his personal attendance. As it has no pressure or influence on the broker. But the office of Ld.AO is empowered by civil court powers to enforce the attendance of any person but it may be noted that in the instant case the Ld.AO has not issued notice u/s 131 of the Act to enforce the attendance of this person. Therefore, it is unlawfu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surmises. The AO admits that the payment of brokerage expenses to the extent of 2% is wholly and exclusively towards his business but an adhoc and part disallowance is not as per the cannon of natural justice. There was no concrete evidence and material available with the AO to hold that the brokerage expenses are excessive and it being the search case, no evidence was either found during the search regarding the bogus or disproportionate expenses. Hence, in view of the above discussion and also without any inquiry and any adverse material, an adhoc disallowance made by the AD towards the brokerage expenses deserves to be deleted." (emphasis provided) 6. Aggrieved by which the Revenue is in appeal before the Tribunal. Ld. Sr. DR sought time. The findings in the entire order were read out alongwith the Sr. DR and he was required to address whether the Revenue would be in a position to rebut the evidences as in that eventuality time would be granted as otherwise adjournment would not be granted. On going through the entire order the Ld. Sr. DR still did not make any request seeking time to rebut the facts on record. Thus considering the peculiar facts and circumstances of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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