TMI Blog2022 (11) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... light of the fact that all the land owners/payees herein are agriculturists who randomly joined the assessee cause of clubbing the lands for setting up windmills and allied activities for M/s. Suzlon Gujrat Wind Park Ltd (an undisputed fact in assessment), we hold that a lump sum commission disallowance of Rs.12.21 lakhs cash component out of that in issue of Rs.1,68,33,800/- would be just and proper with a rider that the same shall not be treated as a precedent. The CIT(A) details findings deleting the impugned commission/expenditure disallowance of Rs.1,56,12,800/- are upheld in very terms. - Revenue s appeal is partly allowed. - ITA No. 102/PUN/2018 - - - Dated:- 4-11-2022 - SHRI S. S. GODARA , JUDICIAL MEMBER AND SHRI G. D. PADMAHSHALI , ACCOUNTANT MEMBER Assessee by : Shri Pramod Shingte Revenue by : Shri M.G. Jasnani ORDER PER S. S. GODARA , JM : This Revenue s appeal for assessment year 2013-14 arises against the CIT(A)-4, Pune s order dated 16-08-2017 passed in case No. PN/CIT(A)- 4/ACIT, Satara Circle/42/2016-17, in proceedings u/s. 143(3) of the Income Tax Act, 1961; in short the Act . Heard both the parties. Case file perused. 2. The Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account that the appellant had claimed an amount of Rs.1,68,33,800/- on account of Commission Brokerage paid to various persons in connection with purchase of land from land owners, which were subsequently transferred to M/ s. Suzlon Gujarat Wind Part Ltd. It was submitted by the appellant before the AO that the said commission and brokerage were paid for smooth transfer of the land, as the assessee had no knowledge about the land owners individually. It was also contended before the AO that the payments were made by cheques but TDS was not deducted as the assessee was not liable to deduct TDS as per provisions of section 194A as his accounts for immediately preceding assessment year were not required to be audited u/s. 44AB of the Act. The AO, further asked the assessee to furnish the details of such payment along with complete postal addresses of such persons. The assessee furnished certain details on the basis of which letters were issued to 9 persons out of 74 persons u/s. 133(6) of the Act on 07/01/2016 to verify the claim of the assessee. However, no reply was received from the said persons. The AO, therefore, issue reminder letter on 08/03/2016 to all the persons again but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er ID and PAN Cards only established the identity of the persons but could not prove the transaction as genuine. The AO also notice that payments were also made in cash to the commission agent and therefore such transaction were not amenable to verification. The appellant also failed to furnish any copy of bills raise by the aforesaid commission agent claiming commission or brokerage. The AO, accordingly, supporting documentary evidences since not confirm on not enquiry as not acceptable and in absence of the evidences as he sought for, had disallowed the entire commission or brokerage payment of Rs.1,68,33,800/- and added the same to the total income. 5.3.2 During the appellate proceedings, the appellant more or less made the identical submission and the summary of such submission as given in the letter filed on 10/08/2017 have been quoted above. The appellant contended that the payments were supported by vouchers agreements. Substantial amount of the payments was made by account payee cheques. The appellant also proved the identity of the payees by producing their Aadhaar cards / PAN Cards / Election cards / Driving license also 7/12 extracts of their lands. In spite of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds in the unknown locality of the said company. Referring to the above decisions, the appellant contended that the addition so made on account of disallowance of commission and brokerage of Rs.1,68,33,800/- was not warranted, as the payments made were genuine and incurred for my business exclusively. 5.4 I find merit in the submission and contention of the appellant. It is seen from the assessment order that the appellant had discharged his onus by providing all the necessary details and information such as, names addresses of all 74 persons, copies of their PAN cards, Adhar cards, Election cards and Driving Licenses, copies of notarized agreements as in the cases could be. In other words, as far as the identity of the persons, there was no dispute and doubts. The also did not give any adverse findings in this regard. The AO's contention was that letters u/s. 133(6) of the Act were issued to 9 persons to whom major payments were made to verify the assessee s claim, however, none of them filed any reply confirming such payments received by the said persons. Again reminders were issued but still there was no response. The assessee was brought to notice of the above facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appellant had discharged his onus of payments towards commission and brokerage and has rightly contended that the disallowance was made on the basis of preponderance of probabilities and suspicion could not form the basis of addition. I am inclined with the contention of the appellant for the reasons as detailed above. I therefore, hold that the AO was not justified in disallowing the amount of Rs.1,68,33,800/- on account of payments towards brokerage and commission, thereby adding the same to the total income. The addition so made is therefore deleted. Ground no. 1 raised by the appellant is accordingly allowed. 4. Mr. Jasnani vehemently argued in the light of the Revenue s pleadings that the assessee had failed to prove the impugned commission payments by way of relevant supportive evidence which made the Assessing Officer to invoke this disallowance. He also quoted Premier Breweries Ltd. Vs. CIT reported in (2015) 372 ITR 180 (SC) in support. 5. The assessee had strongly supported the order of CIT(A) s invoking detailed discussion in the light of his paper book running into 219 pages containing all the documentary evidences of commission payments, bank statements ..... X X X X Extracts X X X X X X X X Extracts X X X X
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