2012 (9) TMI 724 - AT - Income Tax

Dis-allowance of commission expenses - alleged accommodation entries - survey u/s 133A undertaken at assessee s business premises on the basis of statement given by one Mr. Gupta alleging that the said Mr. Gupta was merely providing bills and entries and that he had been charging commission for his services @ 0.25% of the aggregate transactions - denial of cross examination of Mr Gupta - Held that - In absence of any contrary material placed on record by the Revenue to show that the cross examination of Mr. K.K. Gupta was provided to the assessee, and keeping in view that the assessee had been showing profit ranging between 40 to 45% on the said purchases with Mr Gupta has not been uncontroverted by the Revenue even at this stage and also keeping in view the books of accounts have not been rejected, it is held that CIT(A) was not justified in sustaining the addition of commission and accordingly we delete the same. Dis-allowance of depreciation on certain P&M purchased from said Mr Gupta - Revenue contended such purchases of capital assets as fictitious - Held that - It is not the case of the Revenue that the plant and machinery were not installed at the assessee s business premises or the same were not used for the purpose of the business of the assessee or the rate of depreciation claimed by the assessee is not according to the Rules. Estimated disallowance of depreciation made by the A.O. is not sustainable in law and accordingly order of CIT(A) in deleting the same is upheld - Decided in favor of assessee.

Summary

Issues Involved:
1. Validity of the assessment under sections 147/148 of the Income Tax Act.
2. Addition of commission income.
3. Disallowance of deduction under section 10B of the Income Tax Act.
4. Disallowance of depreciation on alleged over-invoiced assets.

Detailed Analysis:

1. Validity of the assessment under sections 147/148 of the Act:
- For A.Y. 2004-05, A.Y. 2005-06, and A.Y. 2006-07, the assessee did not press the ground challenging the validity of the assessment under sections 147/148. Consequently, this ground was rejected for all the years mentioned.

2. Addition of commission income:
- A.Y. 2004-05: The Assessing Officer (A.O.) added Rs. 2,51,698/- as commission income based on a statement given by Mr. K.K. Gupta, who claimed he provided bills and entries for a commission of 0.25% of aggregate transactions. The A.O. calculated the commission based on total purchases and sales. The assessee contended that no cross-examination of Mr. Gupta was provided and that the purchases and sales were genuine, showing a profit margin of 40-45%. The Tribunal found that the A.O. accepted the purchases and sales and did not reject the books of accounts. Citing the Supreme Court's decision in Kishinchand Chellaram v. CIT, the Tribunal held that the addition was not justified without providing cross-examination and deleted the commission addition.
- A.Y. 2005-06 and A.Y. 2006-07: The facts and issues were similar to A.Y. 2004-05. Following the same reasoning, the Tribunal deleted the commission additions of Rs. 2,00,229/- and Rs. 14,50,790/- for A.Y. 2005-06 and A.Y. 2006-07, respectively.

3. Disallowance of deduction under section 10B of the Act:
- A.Y. 2005-06 and A.Y. 2006-07: The assessee admitted that the purchases were not for the unit eligible for deduction under section 10B. Consequently, the Tribunal rejected the grounds related to the disallowance of the deduction under section 10B for both years.

4. Disallowance of depreciation on alleged over-invoiced assets:
- A.Y. 2005-06 and A.Y. 2006-07: The A.O. disallowed 35% of the depreciation on certain capital goods purchased from entities controlled by Mr. K.K. Gupta, suspecting over-invoicing. The assessee provided evidence of the genuineness of the purchases, including due diligence reports from Ernst & Young, installation reports, and High Court records. The CIT(A) deleted the disallowance, noting the substantial evidence supporting the genuineness of the assets and their installation. The Tribunal upheld the CIT(A)'s decision, finding no basis for the A.O.'s adhoc disallowance and confirming that the assets were used for business purposes and the depreciation rate was as per rules.

Conclusion:
- The appeals by the assessee were partly allowed, resulting in the deletion of commission additions and upholding the genuineness of the depreciation claims. The Revenue's appeals were dismissed, confirming the deletion of the adhoc disallowance of depreciation.