2021 (4) TMI 900 - AT - Income Tax

Disallowance of commission payment - According to assessee, the commission was paid to TCI as shopping commission to attract foreign tourists coming through TCI to the shop of the assessee - HELD THAT - While deciding this ground, the A.O. as well as the ld. CIT(A) has not considered the letter submitted by the TCI wherein the TCI had confirmed that amount of ₹ 15.00 lacs paid on 31/12/2007 and 01/06/2008 was for the F.Y. 2008-09 and had also not considered the decision of ld. CIT(A) in the case of sister concern of the assessee i.e. M/s Jaipur Gems Crafts wherein under identical circumstances, the additions were deleted. Considering the principles laid down by the Hon ble Supreme Court in the case of Kishanlal Chawla Vs State of Uttar Pradesh . 2021 (4) TMI 841 - SUPREME COURT wherein it was said that every trial is voyage of discovery in which the truth is the quest . Since in the income tax proceeding, the A.O. is considered as an adjudicator as well as investigator, therefore, it Was all the more duty of the A.O. to evaluate or consider all the documents placed on record by the respective parties. Therefore, considering the interest of justice, equity and fair play, we restore the matter back to the file of the A.O. for deciding the issue afresh after considering the letter submitted by the TCI wherein the TCI had confirmed that amount of ₹ 15.00 lacs paid on 31/12/2007 and 01/06/2008 was for the F.Y. 2008-09 and the decision of ld. CIT(A) in the case of sister concern of the assessee i.e. M/s Jaipur Gems Crafts wherein under identical circumstances, the additions were deleted. Addition u/s 69 - realization of the advance given to Shri Rohit Walter and Prabhu Kumar as unexplained cash introduced by the assessee in their name - HELD THAT - As per the assessee, the said additions were made on the basis of assumptions and surmises as the assessee was having turnover of ₹ 51,45,367/- and the payment was made two these persons through cheque and the assessee was having sufficient cash and bank balances and as and when some need arises to the assessee then in that eventuality the assessee used to withdraw cash from the bank and the revenue authorities have not seen or examined the cash book to find out that on the date of deposit of cash in these accounts, was there any necessity to meet the expenses. No such event/instance in this nature has been pointed out by the revenue rather the ld. CIT(A) in the operative portion of the order has mentioned that the A.O. had made additions as the necessary confirmation from the above two persons from whom the money was received as temporary loan were not produced. However, after examining the pleadings of both the parties, we have not found that at any stage, the assessee had ever claimed that they have received temporary loan from these two persons namely Rohit Walter and Prabhu Kumar, therefore, in such circumstances, we are unable to understand as to how the ld. CIT(A) had concluded that the assessee has received temporary loan from the above two persons. According to the assessee, there is some confusion on the part of the revenue in appreciating the facts of the present case. Therefore, considering the interest of justice, we also set aside this issue back to the file of A.O. with direction to decide the issue afresh after examining the cash book or any other documents as it deem fit for deciding this issue.

Summary

Issues Involved:
1. Disallowance of commission payment of ?3,00,000.
2. Addition of ?1,28,723 under Section 69 as unexplained cash.

Detailed Analysis:

1. Disallowance of Commission Payment of ?3,00,000:

The assessee challenged the order of the CIT(A) confirming the disallowance of a commission payment of ?3,00,000. The assessee argued that the commission was paid to Travel Corporation of India (TCI) for attracting foreign tourists to the assessee's shop. The assessee provided a copy of the agreement and confirmation from TCI stating that the entire amount of ?15,00,000 was for the financial year 2008-09. The AO disallowed ?3,00,000, attributing it to the preceding assessment year, which was confirmed by the CIT(A).

The ITAT noted that the AO and CIT(A) did not consider the confirmation letter from TCI and the decision in a similar case involving the assessee's sister concern, M/s Jaipur Gems Crafts, where similar additions were deleted. The ITAT emphasized that the AO should have evaluated all documents and restored the matter to the AO for fresh consideration, ensuring the TCI's confirmation and the precedent set by the sister concern's case are taken into account.

2. Addition of ?1,28,723 under Section 69 as Unexplained Cash:

The assessee contested the addition of ?1,28,723 under Section 69, arguing that these were recoveries of advances given to travel agents Rohit Walter and Prabhu Kumar, who repaid the advances in small amounts. The AO assumed that the assessee deposited cash in these agents' accounts to cover cash shortages, a stance upheld by the CIT(A).

The ITAT found that the revenue authorities did not consider the assessee's claim that the advances were repaid by the agents from their earnings and that there was no necessity for the assessee to adopt such means given the sufficient cash and bank balances. The ITAT noted a possible misunderstanding by the CIT(A) regarding the nature of the transactions and set aside the issue, directing the AO to re-examine the cash book and other relevant documents to decide the matter afresh.

Conclusion:

The ITAT restored both issues back to the AO for fresh adjudication, emphasizing the need for a thorough evaluation of all relevant documents and precedents. The decision to remit the matters back to the AO was made to ensure justice, equity, and fair play, without expressing any opinion on the merits of the disputes. The appeal was allowed for statistical purposes only.