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TMI Blog2015 (6) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... lowance of set off of business loss comprising current depreciation and unabsorbed depreciation against the Commission Income - Held that:- In the circumstances and facts of the case order of ld. CIT(A) is not a speaking order and accordingly order of ld. CIT(A) on this issue is set aside to his file to decide the issue denovo and pass a speaking order and to deal with the decisions of various courts of law relied upon by the assessee along with the decisions of the Tribunal in the case of M/s. Jai Ushin Limited [2008 (1) TMI 441 - ITAT DELHI-F] and Suresh Industries Limited (2012 (11) TMI 674 - ITAT MUMBAI) relied upon before us and decide the issue de novo but after affording adequate opportunity of being heard to the assessee. - Decided in favour of assessee for statistical purposes. - I.T.A No. 2739/Kol/2013 - - - Dated:- 8-6-2015 - Hon ble Sri Rajpal Yadav Hon ble Sri B.P.Jain,JJ For the Petitioner : Shri V.N.Purohit, FCA Shri H.V.Bharadwaj, ACA For the Respondent : Shri Saboorul H.Usmani, JCIT, Sr.DR ORDER Per Shri B.P.Jain, AM This appeal of the assessee arises from the order of ld.CIT(A)-XX, Kolkata dated 02.09.2013 for Assessment Year 2003- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urcing of coke arrangement of shipment, supervision of discharge, movement and delivery of the same to Ispat Metallics Ltd. 25,00,000.00 31.03.03 Co-ordination Liasioning work with Supplier and Port Authorities for Chrome Ore/Concentration, Qty. 44681.850 MT 21,00,047.00 31.03.03 Co-ordination Liasioning work with Ispat Metallics Ltd. for sourcing of coke arrangement of shipment, supervision of discharge, movement and delivery of the same to Ispat Metallics Ltd. 25,00,000.00 Total 1,19,75,252.08 Suzion Energy Suzion Shrimati Society Near Shri Krishan Complex Narangpura 03.03.03 Sales Commission of services rendered in the sale/marketing of 1 No.1000/KW/1250 KW, Wind Turbine Generators to Sastha Paper Mills Ltd. ₹ 8,50,000/- per WTG as per the terms of Agreement dated 30.03.02. 8,50,000.00 04.03.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turned unserved on 01.03.2005 with postal remarks No such addressee . On receipt of reply a letter was written to the assessee on 07.04.2005 intimating the result of inquiry as mentioned and also requested to show cause why adverse inference should not be taken. 5. A.K.Verma, Ispat Industries Ltd.. AGM, Shipping on 10.02.2005 Reply received stating that Mr;.A.K.Verma left the job. 6. Mr.B.ravi Kumar, Visakhapattnam Steel Plant, on 10.02.2005 Came back unserved on 04.03.2005. On receipt of reply a letter was written to the assessee on 07.04.2005 intimating the result of inquiry as mentioned and also required to show cause why adverse inference should not be taken. 7. Mr.Pawan Kr.Kedia M/s. Jindal Vijayanagar Co.Ltd. on 10.02.2005 Reply was received on 14.02.2005 stating W have no transaction with M/s/. Rawmet Resources, 40/7, Ballygunge Circular Road, Kolkata-19 during F.Y. 2002-03 or any time before or after that period. On receipt of reply a letter was written to the assessee on 07.04.2005 intimating about the reply submitted by the assessee and also the result of inquiry as mentioned and also requested to show cause why adverse inference shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gle designated person. On the other hand the commission earned was the result of collective labour of the employees of the co. under the guidance of the management of the co. it has already been stated that the expenses incurred to ear n the commission are shown under the head traveling expenses and general expenses in the P L a/c but those cannot be isolated specifically because of the integrated in nature of the operation of the co. The assessee in its reply has submitted that the expenses have been shown under the head traveling expenses and general expenses. P L a/c were examined and found that under these two heads the expenses are for ₹ 23,053/- and ₹ 35,295/-. In other words, the assessee has tried to say that by making expenditure of less than ₹ 58,000/- approximately, commission of ₹ 1,20,87,469/- have been earned. It is worth to mention that expenditure of ₹ 58,000/- approximately is not exclusively for earning commission rather it is cumulative to the main business of manufacturing and sale of sponge iron for ₹ 3.73 crs. Approx. The assessee has not shown this commission income under the head commission but the same has been shown as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly the submissions made before both the authorities below and prayed the Bench to reverse the order of ld.CIT(A). 5. The ld. DR, on the other hand, relied upon the orders of both the authorities below. 6. We have heard the rival contentions and perused the facts of the case. The undisputed fact in the present case are that the assessee has declared ₹ 1,20,87,649/- under the head Miscellaneous Income but no nature of the said miscellaneous income was explained in the return of income. During the course of assessment proceedings it was submitted by the assessee that the same was commission income received from various persons. To verify the facts the AO issued notices u/s 133(6) of the Act to the persons concerned. In most of the cases notices were returned back unserved. It is surprising that Shri Pawan Kr.Kedia and Shri R.K.Khetrapal denied of having any transaction with the assessee. It is only in the case of Rawmet Commodities Pvt. Ltd. and M/s. Rawmet Resources reply were received but they confirmed of the payment of cheque but did not establish whether any services were rendered to them by the assessee. The assessee in each and every case was provided opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. The ld. DR, on the other hand, relied upon the orders of both the authorities below. 10.We have heard the rival contentions and perused the facts of the case. The disputed fact in the present case is that the ld. Counsel for the assessee in his written submission which has been reproduced in para 8.1. by the ld. CIT(A) has relied upon various court of law which have not been discussed or distinguished by ld. CIT(A) in his order at para 8.2. The relevant part of the ld. CIT(A) s order is reproduced herein below for the sake of convenience :- 8.2. I have perused the assessment order and considered the submission of the appellant. The fact of the case is that the appellant set off depreciation of ₹ 1,26,90,763/- against its income. However, the A.O. did not allow the same as there was no business income available with the appellant in the assessed income. After going through the facts and circumstances of the case, the A.O. was justified in not allowing the set off of depreciation as per section 32(2) of the I.T.Act. Further, the case laws relied upon by the appellant are not applicable in the present case as the facts in the appellant s case are different from those ..... X X X X Extracts X X X X X X X X Extracts X X X X
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