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TMI Blog2012 (9) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside to the CIT(A) for fresh adjudication - Decided in favor of Revenue for statistical purposes - I.T.A. No.4363/Del/2011 - - - Dated:- 27-7-2012 - SHRI I.C. SUDHIR AND T.S. KAPOOR, JJ. Appellant by : Smt. Veena Joshi, Sr. DR. Respondent by : Shri Sanjay Mehra, FCA. ORDER PER TS KAPOOR, AM: This is an appeal filed by the revenue against the order of Ld CIT(A) dated 28.7.2011. The grounds raised by the revenue are as under:- 1. On the facts and in circumstances of the case, the Ld CIT(A) XXV, new Delhi has erred in allowing the appeal of assessee i.e. treating the income of Rs..1,62,02,904/- as commission income under the head business income which was assessed by the Assessing Officer under the head income from other sources. 2. The appellant craves leave for reserving the right to amend, modify, alter add or forego any ground(s) of appeal at any time before nor during the hearing of this appeal. 2. The brief facts of the case are that as per income tax return filed by the assessee, the business of the assessee is trading in shares and debentures and as per assessee s own admission, he has been doing the business of trading in shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidual capacity and not on behalf of either of the alleged importers or of the alleged exporters. vii) That the assessee has not traveled so as to reach out to the party who had paid him the alleged commission. viii) That the assessee had failed to substantiate his credential for having any knowledge, experience or expertise regarding export of iron ore or getting reliable supplier of iron ore. ix) That the assessee himself admit that he has not earned commission from the alleged importers and in fact some individuals had remitted the amount. x) That the assessee had failed to establish that Mr. Jhad Jin Hua and Ms. Hao Weiqun had made the payment of alleged commission on behalf of the alleged importers. Not even a single evidence to this effect was produced by the assessee. In fact, the assessee himself admitted that he has no knowledge about the designation/stake of Mr.Zhao Jinajun or Mr. Hao Weiqun in any of the alleged importer company. xi) That all the amounts of so-called commission have been received during very short period of 16 days i.e. from 16.1.2008 to 1.2.2008. xii) That the assessee had not filed any document to substantiate the nature of remittance which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set off business losses of earlier years against current s year business income. 4. The Ld CIT(A) after considering the submissions made by the Ld AR reversed the order of Assessing Officer and held that the income of assessee be assessed under the head business income instead of income from other sources. The relevant portion of Ld CIT(A) s order is reproduced below as under:- I have considered the addition of the Assessing Officer and the submission of the assessee and I find considerable merit in the submission of the assessee. There is no dispute that the assessee has been filing the regular return of income for a long time and has also been a WT assessee. There is also no dispute that the assessee has earned the commission income which has been credited and reflected in the bank account of the assessee with the OBC and the same has been included in the books of accounts of the assessee and the same has been audited u/s 44AB of the Act. So, there is no dispute so far as the earning of the commission income is concerned. There is also no dispute that the assessee has carried forward business losses which has been assessed u/s 143(3) in the preceding assessment years of ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly the appeal of the assessee is allowed. 5. Aggrieved, the revenue has filed appeal before this Tribunal. 6. The Ld DR at the outset, argued that remand report was not called for but Ld AR intervened that violation of Rule 46A if any is not part of grounds of appeal. The Ld DR then argued that Ld CIT(A) had not commented/countered reasons taken by the Assessing Officer for treating the income under the head income from other sources., He further argued that nature of receipt was not got confirmed from the bank. In this respect, he took us to page 33 of paper book wherein a hand written letter written by the Chief Manager, Oriental Bank of Commerce addressed to AGM New Delhi was placed. The Ld DR stated that this is a just a request letter and not a proof of explaining the nature of receipt of amount in the bank. Therefore, in view of the above fact and in view of the Assessing Officer s detailed assessment order he argued that Assessing Officer was right in holding the income under the head income from other sources. 7. The Ld AR, on the other hand, argued that assessee has been doing business since long and has sufficient experience in the business. In this respec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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