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TMI Blog2018 (11) TMI 1843X X X X Extracts X X X X X X X X Extracts X X X X ..... om sales commission was paid and the details of the sales made through them, confirmation letter from the parties, agreements with the parties for rendering of services and payment of commission and income tax details of the commission agents i.e. their PAN Numbers. Tax was deducted at source for the commission paid and details of the same were furnished before the Assessing Officer. The Assessing Officer issued notice u/s 133(6) of the Act, to the commission agents and for the Assessment Year 2011-12, the commission agents have received the same. In reply to these notices, these parties have directly confirmed to the Assessing Officer, that they have received commission for the sales done through them. Thereafter, the Assessing Officer issued notice u/s 131 of the Act, summoning the parties for personal appearance. Some of these notices were returned unserved. Thereafter the Assessing Officer directed the assessee to produce these commission agents before him for examination. All the parties except one were produced before the Assessing Officer for, the Assessment Year 2011-12. The party which could not appear before the Assessing Officer was Sugam Vinimay Pvt. Ltd. The Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ld. CIT(A) at page 3 last para of his order held as follows:- "I have considered the submissions of the AR of the appellant. The notice as issued by the AO was returned unserved. The existence of the party has not been proved by the assessee. Mere filing the confirmation letter from the commission agents along with their PAN, bills evidencing the sale of goods through them mentioning therein the names of the parties to whom the goods were sold through the said commission agent; the evidence of payment by cheque, the Tax deducted, service tax charged and the bank statements and producing the copy of the agreement with the commission agent does not prove that the service was actually rendered. Hence, the action of the AO is confirmed. This ground of appeal is dismissed." 3.2.1. For the Assessment Year 2011-12, the revenue has filed this appeal and for the Assessment Year 2010-11, the assessee filed this appeal on the issue of allowability of commission paid. The other issues raised by for the Assessment Year 2010-11 in the assessee's appeal pertain to ad-hoc disallowance of certain expenses. The revenue has raised one more ground for the Assessment Year 2011-12 related to disall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deduction of TDS. There was an agreement also between the assessee company and its agent Sugam Vinimay Pvt. Ltd by which the agent had the right to receive commission and Sugam Vinimay also filed the return showing the commission income. The AO also has not alleged that assessee company and Sugam Vinimay are related to each other or that the payments were not genuine or that the payments having been made by the assessee to the recipient have found their way back to the assessee some way or the other. This being the case, AO cannot summarily reject the commission payment to Sugam Vinimay as 'shyam transaction', even though the agent did not respond to his summon. It is well settled law that once the assessee has discharged the primary onus, AO cannot hold a transaction bogus without bringing any material evidence on record to the contrary. In view of such, balance addition of Rs. 21,90,181/- is also deleted." I.T.A. No. 1266/Kol/2016 Assessment Year: 2010-11 I.T.A. No. 316/Kol/2016 Assessment Year: 2011-12 M/s. Sudarshan Paper & Board Pvt. Ltd 5.1. The ld. D/R, could not point out any infirmity in these findings of the ld. CIT(A). hence we uphold the same. For similar reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents for not appearing before the Ld. AO in response to the summons issued thereon. The Ld. AO is empowered under the law to take necessary action against these commission agents for non-compliance to the summons issued to Section 131 of the Act. The Statute provides for relevant remedial measures thereon. The ld AO without resorting to such measures, cannot proceed to disbelieve the claim of commission paid by the assessee when the same are supported by various documents and confirmed by the said parties. In the instant case, the primary onus has been duly discharged by the assessee proving the claim of commission payments made by the assessee. There is absolutely no reason for the ld AO to doubt the veracity of the said transactions. Admittedly none of the commission agents were relatives of the assessee or interested parties with the assessee so as to allege some mala fide on the part of the assessee. Hence, in our considered opinion, there is no case made out by the ld AO to treat the commission transactions as ingenuine transactions in these facts and circumstances. We hold that mere non- appearance of the said commission agents in person before the Ld. AO would I.T.A. No. 126 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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