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TMI Blog2016 (1) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... No.-94/Del/2015 - - - Dated:- 9-11-2015 - SMT DIVA SINGH, JUDICIAL MEMBER For The Appellant : Sh. Raman Kant Garg,Sr.DR For The Respondent : Sh.Gaurav Goel, CA ORDER The present appeal has been filed by the Revenue assailing the correctness of the order dated 08.10.2014 of CIT(A)-III, New Delhi pertaining to 2008-09 assessment year on the following grounds:- 1. On the facts and in the circumstances of the case, the CIT(A) has erred in deleting the disallowance made towards brokerage charges of ₹ 19,19,247/- paid to M/s. Ajanta Estate Developers on purchase of land. 2. The order of the CIT(A is erroneous and is not tenable on facts and in law. 3. The appellant craves leave to add, alter or amend any/all of the grounds of appeal before or during the course of the hearing of the appeal. 2. However, at the time of hearing no one was present on behalf of the assessee. Accordingly, the appeal was passed over twice. In view of the fact that even in the third round, no one was present. Considering the material available on record it was considered appropriate to proceed with the present appeal exparte qua the assessee responded on merit a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtract is reproduced from the assessment order:- Assessee company has already discharged its primary onus to substantiate the genuineness of the expenditure by furnishing his address, PAN, copy of invoice, TDS certificate the very fact that all the payments have been made vide account payee cheques through proper banking channel systems after making proper TDS at the applicable rates. Your good office will appreciate the fact that the payment of brokerage is a quite common phenomenon in real estate industry and everybody accepts that involvement of brokers in the real estate deal is very common. There is no standard rate of brokerage for all kind of real estate deals, its wholly depends upon the facts circumstances of the case like location, size of the land parcels, level of competition in the market, utility, need of the seller, name goodwill of the parties etc. (emphasis provided) 3.1. However, not convinced with the claim of the assessee the AO rejected it holding that notice u/s 133(6) of the Act had been issued to the broker and he had not responded. Further, the claim was also rejected as the assessee had not produced the broker. Accordingly the brok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot been disputed as brokerage to the extent of 2% has been allowed thus simply because broker does not respond to the notice u/s 133(6) the AO cannot upset the evidence and apply brokerage as per his will. The extract of the further arguments advanced before the CIT(A) found extracted in the impugned order are reproduced for ready-reference:- 1.5.2. Moreover during assessment proceedings Appellant submitted the copy of Sale Deeds, which clearly contains the name of Mr.Pawan Kumar proprietor of Ajanta Estate as one of the witness to the sale deed done before the Sub-registrar, New Delhi. Therefore, the identity and existence of Mr. Pawan Kumar, Proprietor of Ajanta Estate and Developer gets established by the fact that he is one of the witness to the sale deed registered with Registrar and even his Photograph was also clicked which forms part of the sale deed. The sale deed was a material available on record, hence his identity stands established and clearly establishes his nexus with the land purchase transaction. We are enclosing herewith the copy of sale deed as Annexure 3 which substantiates the identity of Broker. It may further be clarified that even though the Ld.AO ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rokerage @ 2.80%. To prove the genuineness of the payment of brokerage expenses of ₹ 66,63,987, the appellant filed the income tax particulars, TDS certificates and copy of bank account from which it is seen that the payments have been made through an account payee cheque and on such brokerage payment, TDS has also been deducted. The AO has not doubted the payment of brokerage expenses but he has restricted the expenses to the extent of 2% instead of 2.80% paid by the appellant. This part disallowance is primarily made because notice under section 133(6) was not complied with by M/s. Ajanta Estate Developer and also failure on the part of the appellant to produce the representative of M/s. Ajanta Estate. In my humble view, the onus was duly discharged by the appellant by filing the requisite details with the AO and the AO had ample powers under the Act to enforce the attendance of M/s Ajanta Estate Developer and I find that instead of using the powers available to the AO to enforce the attendance of M/s Ajanta Estate, the disallowance of the part of brokerage expenditure is not on sound footing but is purely based on conjecture and surmises. The AO admits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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