Dinesh V. Bahinwani, Mumbai vs Department Of Income Tax

ी संजय अरोड़ा, लेखा सद य एवं ी अ मत शु ला, या यक सद य के सम ।

BEFORE SHRI SANJAY ARORA, AM AND SHRI AMIT SHUKLA, JM

आयकर अपील सं./I.T.A. No. 128/Mum/2014 ( नधारण वष / Assessment Year: 2009-10)

Dinesh V. Bahirwani Dy. CIT-20(2), Unit No. 605, Business Suites 9, 612, Piramal Chambers, Lalbaug, बनाम/ Plot No. 83, S. V. Road, Santacruz (W), Mumbai-400 012 Mumbai-400 054 Vs.

थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. ABRPB 3559 K ( नधा रती/Assessee) : (राज व /Revenue)

& आयकर अपील सं./I.T.A. No. 711/Mum/2014 ( नधारण वष / Assessment Year: 2009-10)

Dy. CIT-20(2), Dinesh V. Bahirwani 612, Piramal Chambers, Lalbaug, Unit No. 605, Business Suites 9, बनाम/ Mumbai-400 012 Plot No. 83, S. V. Road, Santacruz Vs. (W), Mumbai-400 054

थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. ABRPB 3559 K (राज व /Revenue) : ( नधा रती/Assessee)

नधा रती क ओर से / Assessee by : Shri Vipul Shah राज व क ओर से/Revenue by : Shri Sachchidanand Dube

सुनवाई क तार ख / : 25.02.2015 Date of Hearing घोषणा क तार ख / : 08.05.2015 Date of Pronouncement 2 ITA Nos. 128/Mum/ 2014 & 711/Mum/2014 (A.Y. 2009-10) Dinesh V. Bahirwani

आदे श / O R D E R Per Sanjay Arora, A. M.:

These are cross appeals, i.e., by the Assessee and the Revenue, agitating the part allowance of the assessee's appeal contesting its assessment u/s. 143(3) of the Income Tax Act, 1961 ('the Act' hereinafter) for the assessment year (A.Y.) 2009-10 vide order dated 29.11.2013, by the Commissioner of Income Tax (Appeals)-20, Mumbai ('CIT(A)' for short) vide his order dated 27.12.2011.

Assessee's Appeal (in ITA No. 128/Mum/2014)

2. The appeal raises two grounds, both in respect of advances made and sustained u/s.68 of the Act, which we shall take up in seriatim. The facts in relation to the first addition, agitated per its ground no. 1 is that the assessee, on being called upon to furnish evidence/s toward establishing the identity, creditworthiness and genuineness of the gift of Rs.4 lacs, during the assessment proceedings, failed to do so, so that the same came to be brought to tax by the Assessing Officer (A.O.) u/s.68 of the Act (refer paras 4 and 5 of the assessment order). The assessee carried the matter in appeal, contending that the copy of the notarized gift deed from the donor, the assessee's brother, was submitted in the assessment proceedings. The copy of the income-tax returns, bank statement, and balance-sheet, also called for, could not be furnished as Shri Arun V. Bahirwani, was a non-resident, so that the said donor was not readily available. The donor was the assessee's brother, with his income being in excess of Rs.10 lacs for the last three years, and which was, therefore, prayed for being accepted. The same did not find favour with the ld. CIT(A). The donor, as per the assessee's submissions, was only in India, filing his returns of income up to A.Y. 2009-10, so that the reason for non-furnishing of the relevant materials before the Assessing Officer (A.O.) was unexplained. The genuineness and creditworthiness could not be assessed without the bank statement, balance-sheet (i.e., the statement as to the financial position), etc., so that the assessee had failed to discharge the burden of proof that lay on him u/s.68 of the Act. He, accordingly, 3 ITA Nos. 128/Mum/ 2014 & 711/Mum/2014 (A.Y. 2009-10) Dinesh V. Bahirwani

confirmed the invocation of section 68 by the A.O. in the facts and circumstances of the case. Aggrieved, the assessee is in second appeal.

3. Before us, the case of the parties remains the same. The assessee, in addition, filed a paper-book, containing the following:

 copy of gift deed/declaration of gift dated 17.08.2011;  copy of income-tax return of Shri Arun V. Bahirwani for A.Ys. 2007-08, 2008-09 and 2009-10, disclosing income at Rs.13.08 lacs, Rs.18.93 lacs and Rs.10.29 lacs respectively; and  copy of the assessee's bank account, marking the receipt of gift amount per a cheque number as stated in the gift deed.

It is further stated that none of the documents were submitted before the ld. CIT(A).

4. We have heard the parties, and perused the material on record.

Our first observation in the matter is that except for the gift deed, which, as contended before the ld. CIT(A), has been submitted before the A.O., no other documents stand furnished at either the assessment or the first appellate stage. The said documents, save the declaration of gift, cannot thus be said to constitute or form part of the assessee's paper-book before us. The same are also not certified as true copies, so that the documents can even otherwise not be regarded as authentic and, accordingly, fit to be placed reliance on. It is also not clear if the copy of the gift deed submitted to the A.O., i.e., where so, stood certified as true copy, and why, if at all, the original was not produced along with, or rather, even submitted. Even considering the same to have to been furnished before him (the A.O.) in an authentic (reliable) form, even the same does not as much as prove the donors' identity, i.e., as a donor. It is only his bank statement, bearing a corresponding debit for the gift cheque, which, together with the assessee's bank account, reflecting a credit in respect of the said cheque, that would link the two bank accounts and, accordingly, establish them as payer and payee, i.e., show him as the payer qua the sum under reference. As such, much less capacity and genuineness, even the identity of the donor is not proved on the basis of the materials before the A.O., 4 ITA Nos. 128/Mum/ 2014 & 711/Mum/2014 (A.Y. 2009-10) Dinesh V. Bahirwani

whose satisfaction on the three parameters afore-said, and on the anvil of reasonableness, the law contemplates, for a credit in the assessee's books of account for the year to be not deemed as income. No reason for not furnishing the same during the assessment proceedings stands furnished, with the gift deed dated 17.08.2011, in fact, disproving the assessee's claim of the inability to furnish the documents being now adduced before the A.O. Again, we find no reason for not furnishing the same before the first appellate authority. Even no reason toward the same, which is to be based on facts, was forthcoming before us.

At the same time, however, we are, on the basis of the said documents, sufficiently moved, so that it could not be said to be worth dismissing at the threshold, i.e., without being tested u/s.68. The same, after all, is prima facie a case of a gift by an elder brother, not uncommon in Indian households, even as the same may not be necessarily be taken at face value, with the gift deed being also silent on the occasion marking or the reason behind the gift, viz. to meet some unexpected or heavy expenditure; business needs, etc. Though the credit shall have to be proved on the three parameters afore-said, with the genuineness factor getting accentuated in case of gift in-as-much as the donor unconditionally relinquishes his rights in the gifted property, irrecoverably, we, as a final fact finding authority, are inclined to consider it as a fit case to allow the assessee an opportunity to establish its case in-as-much as there is a ring of truthfulness to the transaction, with the omission/s in proper representation of its case perhaps on account of a delinquent/indifferent counsel. Though admittedly purely a surmise, we are unable to see any valid reason for an assessee, properly instructed - and a reasonable person, who would therefore act in self interest, to withhold the tax returns, etc. in the assessment proceedings, or not to submit the same even before the first appellate authority. That is, taking the conspectus of the case into account, the same, in our view, deserves a fair trial before the assessing authority.

We, accordingly, restore the matter back to the file of the assessing authority to allow the assessee a reasonable opportunity to present its case before him, and adjudicate in accordance with law, issuing definite findings of fact. We, simultaneously, also 5 ITA Nos. 128/Mum/ 2014 & 711/Mum/2014 (A.Y. 2009-10) Dinesh V. Bahirwani

consider it to be a fit case to impose a cost on the assessee, at Rs.10,000/-, to be paid to the credit of the Central Government, in the Department of Income Tax, for causing avoidable expenditure of time/public resources, which are already subject to heavy demand on them, even as the same cannot be a reason to not act in a manner consistent with the dispensation of justice. This forms part of our decision, and toward which reference may be made to r. 32A of the Appellate Tribunal Rules, 1963. Needless to add, we do not imply or be construed to have issued any finding on the merits or demerits of the case, which the A.O. only shall. We decide accordingly.

5. The second ground of the assessee's appeal concerns an addition, similarly, in respect of a credit for Rs.10 lacs, ascribed to be assessee's mother, Smt. Rukmini Bahirwani, by way of a loan. The facts being pari materia, with the documents toward establishing the same being adduced before us vide pgs. 6 to 10 of the assessee's paper book, we have no reason to take a different view in the matter. Our decision qua the first ground shall, therefore, mutati mutandis apply to this ground as well. So, however, no separate cost shall be required to be paid by the assessee. We consider it relevant to clarify this as the imposition of cost, as also clarified earlier, forms an integral part of our decision, i.e., upon finding the assessee's conduct as lackadaisical and wholly irresponsible. We decide accordingly.

Revenue's Appeal (in ITA No. 711/Mum/2014)

6. The only issue raised, alluding to the various aspects of the matter, viz. non- adherence to the procedure prescribed under rule 46A of the Income-tax Rules, 1962, mandatory in character, per its various grounds by the Revenue, is the deletion of disallowance of commission expenditure, made by the A.O. in the sum of Rs.21,14,619/-. The facts of the case in brief are that the assessee was, in examination of its return of income, required by the A.O. to file confirmations along with the return of income in the case of some of the persons to whom commission was paid. The assessee did not file confirmations from two of them, i.e., Shri Prakash Jumani and Darshan Shah (HUF), 6 ITA Nos. 128/Mum/ 2014 & 711/Mum/2014 (A.Y. 2009-10) Dinesh V. Bahirwani

while of those filed, three, being in the case of Shri Amrutlal C. Shah, Shri Ashish A. Shah and Devraj Agencies, the confirmations were not proper in-as-much as the same were only xerox copies. The assessee was thereupon required to file confirmations (in original) from all the persons, with details of purchase and sales transaction qua which commission was paid; their returns of income; balance-sheet; bank statement, etc. The assessee not filing any, the A.O. disallowed the entire expenditure, observing that no evidence toward rendering of services had been produced, with in fact commission in the case of Parul Bahirwani being to a relative, further relying on the decisions in the case of Sumati Dayal vs. CIT [1995] 214 ITR 801 (SC) (qua the validity of the test of preponderance of human probabilities) and Asst. CIT vs. Mehru Electrical & Engg. (P) Ltd. [2011] 128 ITD 247 (Jp) (qua the production of proof being on the assessee).

In appeal, the assessee explained that the commission was an integral part of its business of trading in fancy fabrics, being paid regularly from year to year. Person-wise details of the commission, along with rate thereof, ranging from 1% to 3%, was furnished, which was paid through the banking channel and, further, subject to TDS. The parties were located outside Mumbai, and which explained the non-furnishing of the confirmations in original. The ld. CIT(A) noting the said facts, was of the view that no disallowance of any expenditure, in the facts and circumstances of the case, was made out. Aggrieved, the Revenue is in appeal.

7. We have heard the parties, and perused the material on record.

The case of both the parties before us was along with the same lines. We firstly observe that the primary reason of the A.O. in disallowing the expenditure, which he does in toto, is the non-furnishing of any evidence toward the rendering of the services for which commission on sales has been paid. In other words, the assessee's case was found deficient by him insofar as satisfactorily proving its claim was concerned. The A.O. nowhere doubted the genuineness of the expenditure, except, as it appears, in the case of Parul Bahirwani, a relative, whose place of residence; the assessee contending the payees to be out station parties, had not been specified. In fact, the doubt apparently arose in the 7 ITA Nos. 128/Mum/ 2014 & 711/Mum/2014 (A.Y. 2009-10) Dinesh V. Bahirwani

mind of the A.O., as we infer from his calling for confirmations and supporting documents in all cases, as against from a selected few initially, on account of assessee furnishing xerox copies of the confirmations, and which are definitely not admissible. How could, then, the A.O. be said to have faulted in holding the assessee to have not satisfactorily proved its claim for the relevant year. The ld. CIT(A) reversed his findings without in any manner showing the same as infirm. It is not the question of the A.O. bringing contrary material on record, as stated by him. The law does not enjoin upon the assessing authority to, in order to disallow a claim for expenditure, disprove the same, but the assessee to prove the same; the payment through banking channel, which would only be proved by submission of bank statement/s (or the bank certificate, or the like), and which was not furnished despite being called for, would though a positive attribute, is not sacrosanct, nor is the fact of the same being subject to TDS. The primary charge of the A.O. as afore-stated, is toward non-evidencing the rendering of service, and which has not been rebutted in any manner. The assessee has no-where explained the modus operandi or even the manner in which the services were rendered, which is sine qua non for the claim of the commission, being only the service charges in relation thereto. Some of the classical cases in respect of expenditure in general (refer: Ram Bahadur Thakur Ltd. vs. CIT [2003] 261 ITR 390 (Ker); CIT vs. Navsari Cotton & Silk Mills [1982] 135 ITR 546 (Guj)), and commission expenditure in particular (refer: Lachminarayan Madan Lal vs. CIT [1972] 86 ITR 439 (SC); Lakshmiratan Cotton Mills Co. Ltd. vs. CIT [1969] 73 ITR 634 (SC)) are referred to draw home the point.

The findings by the ld. CIT(A) are based on bald claims, de hors any material on record. Merely making general statements, without basis in any material on record, which has moved the ld. CIT(A), would not prove a claim. His taking cognizance of the copies of the confirmations, i.e., which are inadmissible in evidence, cannot also to be regarded as valid. Even no finding qua commission to Parul Bahirwani, a relative, stands issued. We, accordingly, vacating his findings, restore the matter back to the file of the A.O. to allow the assessee an opportunity to present its case before him. The A.O. shall, on his part, proceed reasonably; that being the hallmark of any good assessment, sustainable in 8 ITA Nos. 128/Mum/ 2014 & 711/Mum/2014 (A.Y. 2009-10) Dinesh V. Bahirwani

law. The backdrop under which the expenditure stands incurred, is, as overly emphasized by the ld. CIT(A), nevertheless, relevant, and to be accorded due regard. Commercial expediency is an important ingredient, and which gets no doubt supported by the fact of regular expenditure, which we observe to vary over a wide range, and which may itself not be determinative, being rather in some circumstances a pointer to genuineness. Again, are the persons to whom the commission is paid the same from year to year, which would, where so, also establish them as regular commission agents, and toward which the A.O. had in fact called for their returns, etc. We leave it at that; the same being the purview of the assessing authority, only adding that his adjudication should satisfy the test of reasonableness and in accordance with the law in the facts and circumstances of the case, as validated by the material on record. We decide accordingly.

8. In the result, both the assessee's and the Revenue's appeals are allowed for statistical purposes.

Order pronounced in the open court on May 08, 2015 Sd/- Sd/- (Amit Shukla) (Sanjay Arora) या यक सद य / Judicial Member लेखा सद य / Accountant Member मुंबई Mumbai; दनांक Dated : 08.05.2015 व. न.स./Roshani, Sr. PS आदे श क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent 3. आयकर आयु त(अपील) / The CIT(A) 4. आयकर आयु त / CIT - concerned 5. वभागीय त न ध, आयकर अपील य अ धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड फाईल / Guard File आदे शानुसार/ BY ORDER,

उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai