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2016 (1) TMI 249 - AT - Income TaxDisallowance of brokerage charges paid on purchase of land - CIT(A) restricted addtion - Held that - The facts would show that the genuineness of the transaction; the existence of the party etc. stood accepted by the AO himself as brokerage to the extract of 2% has been allowed. However the basis for arbitrarily restricting the same based on suspicions to the extent of 2% as opposed to the claim of 2.8% duly supported by unrebutted evidences and facts on record is absent on record. In the absence of any material justifying the restriction to 2% in the facts of the case and considering the legal position thereon, of the view that the finding arrived at by the First Appellate Authority deserves to be upheld. The said order was pronounced on the date of hearing itself in the open Court. - Decided against revenue
Issues Involved:
1. Deletion of disallowance towards brokerage charges. 2. Erroneousness of the CIT(A)'s order on facts and law. 3. Potential addition, alteration, or amendment of grounds of appeal. Issue-Wise Detailed Analysis: 1. Deletion of Disallowance Towards Brokerage Charges: The Revenue challenged the CIT(A)'s decision to delete the disallowance of Rs. 19,19,247/- paid as brokerage charges to M/s. Ajanta Estate & Developers. The brokerage was for the purchase of land from Sh. Virender K Khosla. The AO had initially restricted the brokerage to 2% instead of the 2.8% claimed by the assessee, resulting in the disallowance. The AO's decision was based on the non-response to notices issued under section 133(6) of the Income Tax Act to the broker and the assessee's failure to produce the broker. The assessee argued that they had provided sufficient evidence, including the broker's address, PAN, invoice, TDS certificate, and bank statements showing payments through account payee cheques. The CIT(A) accepted the assessee's evidence, noting that the AO did not dispute the purchase of land or the payment of brokerage itself but arbitrarily restricted the brokerage rate without concrete evidence. The CIT(A) emphasized that the AO had ample powers to enforce the broker's attendance but failed to do so, and thus, the part disallowance based on conjecture and surmises was not justified. 2. Erroneousness of the CIT(A)'s Order on Facts and Law: The Revenue contended that the CIT(A)'s order was erroneous and untenable on facts and in law. However, the Tribunal found no infirmity in the CIT(A)'s order. The Tribunal noted that the AO had accepted the genuineness of the transaction and the existence of the broker, as evidenced by the acceptance of brokerage to the extent of 2%. The Tribunal agreed with the CIT(A) that the AO's restriction of brokerage to 2% was arbitrary and lacked justification, especially given the unrebutted evidence provided by the assessee. 3. Potential Addition, Alteration, or Amendment of Grounds of Appeal: The Revenue sought leave to add, alter, or amend any/all grounds of appeal before or during the hearing. However, no specific additional grounds were raised during the proceedings. The Tribunal proceeded with the appeal based on the existing grounds and found no merit in the Revenue's contentions. Conclusion: The Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s order. It concluded that the AO's restriction of brokerage to 2% was arbitrary and unsupported by evidence. The assessee had provided sufficient documentation to substantiate the brokerage payment, and the AO had not utilized available powers to enforce the broker's attendance. The Tribunal found no basis for the Revenue's claim that the CIT(A)'s order was erroneous on facts or in law. The appeal was dismissed in the absence of any material justifying the AO's decision to restrict the brokerage rate.
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