ITO Ward-12(3), Kolkata v. M/s Jai Vikshu Niketan Pvt. Ltd
[Citation -2016-LL-0923-76]

Citation 2016-LL-0923-76
Appellant Name ITO Ward-12(3), Kolkata
Respondent Name M/s Jai Vikshu Niketan Pvt. Ltd.
Court ITAT-Kolkata
Relevant Act Income-tax
Date of Order 23/09/2016
Assessment Year 2009-10
Judgment View Judgment
Keyword Tags deduction of tax at source • payment to non-resident • permanent establishment • deduct tax at source • statutory obligation • business connection • commission on sale • commission payment • payment of royalty • agency commission • technical service • audited accounts • commission agent • foreign exchange • export business • export turnover • trading company • trading receipt
Bot Summary: Vs. M/s Jai Vikshu Niketan Pvt. Ltd. Page 4 v) The assessee has shown the commission payable under the head Sundry Creditors for goods although there is no import claimed by the assessee during the year. In view of above the AO treated the commission expense claimed by the assessee amounting to Rs.4,29,46,229/- as not genuine expense and added back to the total income of the assessee. Aggrieved, assessee preferred an appeal before Ld.CIT(A) for the stern action of the AO. The assessee before the CIT(A) submitted the Agency Agreement, certificate that the party does not have any permanent establishment in India as well as Details of commission payments made to the parties after 31.03.2009 pertaining to the relevant assessment year 2009-10. The assessee has also paid major portion of the commission to M/s Shakeel Ahmed Trading Co., thus, it is clear from the remand report that the assessee has made payment of commission and has produced all relevant documents to the AO for verification. DR the assessee is into the business of electronics products whereas the assessee deals into the business of fabric export business. Vs. M/s Jai Vikshu Niketan Pvt. Ltd. Page 11 Similarly for the grounds of appeal of the Revenue that the assessee failed to substantiate the genuineness of the expenses we find that the payment has been paid through banking channel, the assessee has produced the copies of the bills of the commission agents. The mere fact that recipient did not reply in some cases or they were not found at the address furnished by the assessee does not in the least prove the fact that they were non existent or that the payments shown to have been made by the assessee were imaginary.


IN INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH KOLKATA Before Shri Waseem Ahmed, Accountant Member and Shri S.S.Viswanethra Ravi, Judicial Member ITA No.1133/Kol/2013 Assessment Years:2009-10 ITO Ward-12(3), M/s Jai Vikshu Niketan P-7, Chowringhee Pvt. Ltd., 132/1, Mahatma V/s. Square, 7 t h Floor, Gandhi Road, 4 t h Floor, Kolkta-700 069 Kaveri House, Burrabazar, Kolkata-700 007 PAN No. AABCJ3771F Appellant .. Respondent By Appellant Shri Debasish Lahiri Addl. CIT-DR By Respondent Shri Subash Agarwal, Advocate Date of Hearing 10-08-2016 Date of Pronouncement 23-09-2016 ORDER PER Waseem Ahmed, Accountant Member:- This appeal by Revenue is against order of Commissioner of Income Tax (Appeals)-XII, Kolkata dated 21.01.2013. Assessment was framed by ITO Ward- 12(3), Kolkata u/s 143(3) of Income Tax Act, 1961 (hereinafter referred to as Act ) vide his order dated 27.12.2011 for assessment year 2009-10. grounds raised by Revenue per its appeal are as under:- 1. That on facts and in circumstances of case, Ld. CIT(A) has erred in directing A.O to delete disallowance of expenses under head commission of Rs.4,29,46,229/- while assessee failed to substantiate that these are genuine expenses. ITA No.1133/Kol/2013 A.Y.2009-10 ITO Wd-12(3) Kol. vs. M/s Jai Vikshu Niketan Pvt. Ltd. Page 2 2. That on facts and in circumstances of case, Ld. CIT(A) has erred in observing that TDS was not required to be deducted on payments of Rs.4,29,46,229/-, which have been claimed by assessee as expenses towards commission paid to foreign parties. Shri Debasish Lahiri, Ld. Addl. CIT DR represented on behalf of Revenue and Shri Subash Agarwal, Ld. Advocate appeared on behalf of assessee. 2. Brief facts of case as per record are that assessee in present case is Private Limited Company and engaged in business of exporting of fabrics, sarees, baby wear etc. assessee has filed its return of income for AY 2009-10 showing total income of Rs. 19,34,220/- under head business & profession on dated 30.09.2009. Thereafter case was selected for scrutiny under CASS module and accordingly notices u/s 143(2) and 142(1) of Act were duly served to assessee. Assessing Officer framed assessment at Rs. 4,48,80,450/- u/s 143(3) of Act. 3. solitary issue raised in this appeal by Revenue in ground no. 1 & 2 is that ld. CIT(A) erred in deleting addition of commission expense of Rs. 4,29,46,229/- made by AO on account of in-genuine expenses and non-deduction of TDS on commission expenses. assessee claimed commission expenses of Rs. 4,29,46,229.00 in Profit & Loss account as Agency Commission on sale which was paid to following parties : S. Name of party Address Commission No. claimed 1 Aaypee International 15/F,Rm E, Nathan Road, 32,48,223 Ltd. Kowloon, Hong Kong 2 Shakeel Ahmed Trading P.O.Box 28706, Dubai, UAE 3,96,98,006 CO LLC TOTAL 4,29,46,229 ITA No.1133/Kol/2013 A.Y.2009-10 ITO Wd-12(3) Kol. vs. M/s Jai Vikshu Niketan Pvt. Ltd. Page 3 On question by AO for genuineness and non-deduction of TDS on commission expenses assessee submitted that it was necessary to appoint foreign agents for getting export orders in competitive markets. Regarding genuineness of commission expenses assessee submitted copies of commission bills, transaction wise details of commission along with rate of commission and payment details of commission. Regarding non-deduction of TDS assessee submitted that TDS has not been deducted from commission expenses on basis of following reasons:- 1. commission agents are non resident person. 2. commission agents are providing services outside India. 3. commission paid or payable to commission agents are related to services provided out of India. 4. commission agents are not having any permanent establishment in India. 5. commission was paid directly to agent outside India. As commission was not taxable in India therefore question of deduction of TDS does not arise. However, AO disallowed commission expenses by observing that i) assessee failed to substantiate whether above companies are actually in existence. ii) foreign companies do not have any permanent establishment in India as well as business connection in India. Provision for Non deduction of TDS will be applicable only after fulfilling criteria as discussed above. iii) rate of commission paid to agents was worked out @ 8% to 10% of export order which is quite higher than market rate. iv) Out of total commission due i.e. Rs 4,29,46,229.00 sum of Rs. 3,96,98,006.00 is unpaid till date for FY 2008-09 which is not common scenario. There was not any documentary evidence that agents are putting effort to get release their payments. ITA No.1133/Kol/2013 A.Y.2009-10 ITO Wd-12(3) Kol. vs. M/s Jai Vikshu Niketan Pvt. Ltd. Page 4 v) assessee has shown commission payable under head Sundry Creditors for goods although there is no import claimed by assessee during year. In view of above AO treated commission expense claimed by assessee amounting to Rs.4,29,46,229/- as not genuine expense and added back to total income of assessee. 4. Aggrieved, assessee preferred appeal before Ld.CIT(A) for stern action of AO. assessee before CIT(A) submitted Agency Agreement, certificate that party does not have any permanent establishment in India as well as Details of commission payments made to parties after 31.03.2009 pertaining to relevant assessment year 2009-10. In Remand Report, AO admits that agency agreements tallies with claim of assessee. It was also admitted by AO that there is difference in amounts paid by assessee as well as appearing in bank statement which was explained due to foreign exchange fluctuation. It was also admitted in Remand Report that assessee has paid Rs 2,69,84,278/- out of total outstanding amount of Rs. 3,96,98,006/- to Shakeel Ahmed Trading Co. LLC. As assessee followed mercantile accounting system so booking of entire liability in that particular year was correct treatment. Aaypee International is not registered with MCA as well as AO was not able to find any Delhi postal address from website of same party. Ld.CIT(A) considered submission of Ld. AR of assessee as well as of Remand Report and deleted addition made by AO by observing as under:- 4. I have considered finding of AO in his order dt. 27.12.2011 and written submission made by AR during appellate proceeding. Appeal on ground no. 1 is general in nature. Appeal on grounds no. 2 and 4 are against addition of commission expenses of rs.4,29,46,229/-. fact of case is that assessee is engaged in business of synthetic fabrics, sarere, arna, baby wear etc. AO found from audited accounts that assessee has made payment of Rs.4,29,46,229/- as commission to different parties. AO in his assessment order has given finding that it is unbelievable that for sales made during FY 2008-09 commission to foreign agents have not been paid till date. further ITA No.1133/Kol/2013 A.Y.2009-10 ITO Wd-12(3) Kol. vs. M/s Jai Vikshu Niketan Pvt. Ltd. Page 5 observed that it is not known whether sold said party is pursuing for payments or not. assessee could not furnish documentary evidences in support of that. Therefore, AO added amount of commission of Rs.42946229/-. During appellate proceeding AR submitted many documents showing payment of commission etc. since AO has written in his assessment order that all particulars details and document were not furnished during assessment proceeding. Therefore, documents and details filed by AR were sent to AO for remand report. AO has submitted his remand report vide letter no. ITO Wd-12(3)/Kol/AABCJ3771F/12-13/1141 dt. 19-12-2012. In his remand report AO has mentioned that assessee has claimed to have paid Rs.3248223/- to Aaypee International Ltd. and Rs.3,96,98,006/- to M/s Shakeel Ahmed Trading Co. LC. AO in remand report has submitted that As parties are not maintaining head office in India, verification has been restricted to study of documentary evidences produced and from internet surfing. assessee could not produce original copies of number of documents furnished e.g. commission bills, agreement copies etc. assessee vide letter dt. 118-12-2012, has stated that these were received over fax or e-mails either in MS Word format or JPEG format and it is not possible for assessee to furnish original print out of these documents. existence of above two parties has been found from internet surfing and print out of 23 pages of documents downloaded from internet have been served on A/R of assessee during course of hearing for furnishing of written explanation in this regard. AO has also mentioned in his remand report that out of total amount of Rs.39698006/- against Shakeel Ahmed Trading Co. amount of Rs.26984278/- have already been paid as per ledger maintained by assessee. Regarding Aaypee International Ltd., total amount of commission of Rs.3248223/- has been paid as per assessee s ledger. I have considered finding of AO in assessment order where he had rejected claim of assessee of commission payment as assessee could not produce details. I have also considered finding given by AO in remand report as well as written submission filed by AR. I find that from remand report it is clear that assessee filed all relevant documents to satisfaction of AO and AO has verified them and he has given his finding that total commission payment to M/s Aapyee International Ltd. was made. assessee has also paid major portion of commission to M/s Shakeel Ahmed Trading Co., thus, it is clear from remand report that assessee has made payment of commission and has produced all relevant documents to AO for verification. Keeping in view finding of AO in remand report, assessee s appeal on grounds no. 2 and 4 are allowed. 5. Appeal on ground no. 3 is against Assessing Officer' finding that assessee did not deduct TDS on commission payments. AO in his ITA No.1133/Kol/2013 A.Y.2009-10 ITO Wd-12(3) Kol. vs. M/s Jai Vikshu Niketan Pvt. Ltd. Page 6 assessment order has mentioned that assessee failed to deduct tax at source on commission payment to parties already mentioned above. AR in his written submission has mentioned that both parties to whom commission has been paid, are foreign companies and they don t have any office establishment anywhere in India. In remand report also AO has pointed out that Aayppe International ltd. is Hong Kong based trading company M/s Shakeel Ahmed Trading Company is based in Dubai UAE. In remand report AO has downloaded details of Aaypee International Ltd. From Internet which shows that office of this company has been opened in Delhi and it is member of Web Hosting Organization since 2009. AR has submitted that this company might have opened it office in Delhi in or after 2009, but definitely as it is clear from internet site it did not have any office in India during FY 2008-09. AR has further submitted that as both companies are foreign companies having no office in India, therefore, there is no question of deducting tax from them. AR has submitted case of Transmission Corporation of India 239 ITR 587 wherein Hon'ble Supreme Court has held if payment to non-resident is not chargeable to tax under Indian Income Tax Act, then no TD has to be deducted. . I have considered finding of AO in assessment order and remand report and submission filed by AR. It is clear that commission was paid to foreign companies which had no agent or office in India as it is clear from remand report of AO. Therefore, AO's finding in assessment order that assessee failed to deduct tax at source on commission payment is not justified. Hence, assessee s appeal on ground no. 3 is allowed. Being aggrieved by order of ld. CIT(A), Revenue is in appeal before us. 6. Before us Ld. DR submitted that activities of business of Shakeel Ahmed Trading Co. LLC are not matching with business of assessee. As per ld. DR assessee is into business of electronics products whereas assessee deals into business of fabric export business. Therefore commission paid/payable is bogus and liable to be disallowed. Similarly ld. DR submitted that commission agent Aaypee International Limited has its branch office in India as evidenced from print out taken from website of party. Therefore assessee was liable to deduct tax which it failed to do so. In view of above expenses of commission needs to be disallowed. ld. DR vehemently supported order of AO. ITA No.1133/Kol/2013 A.Y.2009-10 ITO Wd-12(3) Kol. vs. M/s Jai Vikshu Niketan Pvt. Ltd. Page 7 On other hand ld. AR filed paper book comprising of pages from 1 to 136 and submitted that export business of assessee has increased many folds after taking services from commission agents. commission expenses to M/s SATC cannot be subject to dispute on ground that activities as depicted on its website are not matching with assessee. ld. AR in support of his claim has submitted ledger copies, bills, bank payment advices, copy of bank statement, certificate that parties have no permanent establishment in India from both above stated parties which are placed on record in form of paper book. ld. AR relied on order of ld. CIT(A). 7. We have heard rival contention of both parties and perused materials available before us. Assessee in present case has paid commission to two foreign parties. AO has disallowed same on two counts i.e. without deduction of TDS and genuineness of parties to whom commission was paid. However ld. CIT(A) has deleted addition for reasons as specified in Para no.4 & 5 of his order. Now issues before us arise so as to whether : 1. commission paid to foreign parties who are rendering services outside India and having no permanent establishment in India are eligible for payment without TDS as per provisions of Act. 2. parties to whom payment of commission paid /to be paid are genuine. From above facts, we find that question of TDS from payment of commission arises in aforesaid facts & circumstances when payee has some permanent establishment in India. In instant case ld. DR failed to bring any substantive evidence to prove that payee has any permanent establishment in India. Similarly, we also find that services were rendered by aforesaid commission agents outside India. Therefore income to these commission agents has not accrued or arose in India. Accordingly payment of commission to foreign agents is governed by provisions of section 195 of Act. Therefore in our considered view we hold that assessee was not liable to deduct TDS from payment of commission. In this connection we rely in case of GE India ITA No.1133/Kol/2013 A.Y.2009-10 ITO Wd-12(3) Kol. vs. M/s Jai Vikshu Niketan Pvt. Ltd. Page 8 Technology Centre Pvt. Ltd. Vs. CIT & ANR 327 ITR 456 where Hon ble Supreme Court of India has held as under:- most important expression in s. 195(1) consists of words "chargeable under provisions of Act". person paying interest or any other sum to non-resident is not liable to deduct tax if such sum is not chargeable to tax under IT Act. For instance, where there is no obligation on part of payer and no right to receive sum by recipient and that payment does not arise out of any contract or obligation between payer and recipient but is made voluntarily, such payments cannot be regarded as income under IT Act. It may be noted that s. 195 contemplates not merely amounts, whole of which are pure income payments, it also covers composite payments which has element of income embedded or incorporated in them. Thus, where amount is payable to non-resident, payer is under obligation to deduct tax at source in respect of such composite payments. obligation to deduct tax at source is, however, limited to appropriate proportion of income chargeable under Act forming part of gross sum of money payable to non-resident. This obligation being limited to appropriate proportion of income flows from words used in s. 195(1), namely, "chargeable under provisions of Act". It is for this reason that vide Circular No. 728, dt. 30th Oct., 1995 CBDT has clarified that tax deductor can take into consideration effect of DTAA in respect of payment of royalties and technical fees while deducting tax at source. application of s. 195(2) pre-supposes that person responsible for making payment to non-resident is in no doubt that tax is payable in respect of some part of amount to be remitted to non-resident but is not sure as to what should be portion so taxable or is not sure as to amount of tax to be deducted. In such situation, he is required to make application to ITO(TDS) for determining amount. It is only when these conditions are satisfied and application is made to ITO(TDS) that question of making order under s. 195(2) will arise. While deciding scope of s. 195(2) it is important to note that tax which is required to be deducted at source is deductible only out of chargeable sum. This is underlying principle of s. 195. Hence, apart from s. 9(1), ss. 4, 5, 9, 90, 91 as well as provisions of DTAA are also relevant, while applying TDS provisions. Reference to ITO(TDS) under s. 195(2) or s. 195(3) either by non-resident or by resident payer is to avoid any future hassles for both resident as well as non-resident. Secs. 195(2) and 195(3) are safeguards. said provisions are of practical importance. From this it follows that where person responsible for deduction is fairly certain then he can make his own determination as to whether tax was deductible at source and, if so, what should be amount thereof. If contention of Department that moment there is remittance obligation to deduct tax at source arises is to be accepted then words "chargeable under provisions of Act" in s. 195(1) would be obliterated. said expression in s. 195(1) shows that remittance has got to be of trading receipt, whole or part of which is liable to tax in India. ITA No.1133/Kol/2013 A.Y.2009-10 ITO Wd-12(3) Kol. vs. M/s Jai Vikshu Niketan Pvt. Ltd. Page 9 payer is bound to deduct tax at source only if income is assessable in India. If income is not so assessable, there is no question of tax at source being deducted. Transmission Corporation of A.P. Ltd. vs. CIT (1999) 155 CTR (SC) 489 : (1999) 239 ITR 587 (SC) and Vijay Ship Breaking Corpn. & Ors. vs. CIT (2008) 219 CTR (SC) 639 : (2008) 14 DTR (SC) 74 : (2009) 314 ITR 309 (SC) relied on; CIT vs. Cooper Engineering Ltd. (1968) 68 ITR 457 (Bom) impliedly approved. Sec. 195 falls in Chapter XVII which deals with collection and recovery. Chapter XVII-B deals with deduction at source by payer. On analysis of various provisions of Chapter XVII one finds use of different expressions, however, expression "sum chargeable under provisions of Act" is used only in s. 195. In none of provisions expression "sum chargeable under provisions of Act" is found, which, is expression used only in s. 195(1). It follows, therefore, that obligation to deduct tax at source arises only when there is sum chargeable under Act. Sec. 195(2) is not merely provision to provide information to ITO (TDS). It is provision requiring tax to be deducted at source to be paid to Revenue by payer who makes payment to non-resident. Therefore, s. 195 has to be read in conformity with charging provisions, i.e., ss. 4, 5 and 9. This reasoning flows from words "sum chargeable under provisions of Act" in s. 195(1). fact that Revenue has not obtained any information per se cannot be ground to construe s. 195 widely so as to require deduction of tax at source even in case where amount paid is not chargeable to tax in India at all. Sec. 195 cannot be read, as suggested by Department, namely, that moment there is remittance obligation to deduct tax at source arises. If such contention is accepted it would mean that on mere payment income would be said to arise or accrue in India. Therefore, as stated earlier, if contention of Department was accepted it would mean obliteration of expression "sum chargeable under provisions of Act" from s. 195(1). While interpreting section one has to give weightage to every word used in that section. While interpreting provisions of IT Act one cannot read charging sections of that Act de hors machinery sections. Act is to be read as integrated code. Hence, provision relating to TDS applies only to those sums which are chargeable to tax under IT Act. If contention of Department that any person making payment to non-resident is necessarily required to deduct tax at source is accepted then consequence would be that Department would be entitled to appropriate moneys deposited by payer even if sum paid is not chargeable to tax because there is no provision in IT Act by which payer can obtain refund. Sec. 237 r/w s. 199 implies that only recipient of sum, i.e., payee could seek refund. It must therefore follow, if Department is right, that law requires tax to be deducted on all payments. payer, therefore, has to deduct and pay tax, even if so-called deduction comes out of his own pocket and he has no remedy whatsoever, even where sum paid by him is not sum chargeable under Act. interpretation of Department, therefore, not only requires words "chargeable under provisions of Act" to be omitted, it also leads to absurd consequence. ITA No.1133/Kol/2013 A.Y.2009-10 ITO Wd-12(3) Kol. vs. M/s Jai Vikshu Niketan Pvt. Ltd. Page 10 interpretation placed by Department would result in situation where even when income has no territorial nexus with India or is not chargeable in India, Government would nonetheless collect tax. Sec. 195(2) provides remedy by which person may seek determination of "appropriate proportion of such sum so chargeable" where proportion of sum so chargeable is liable to tax. entire basis of Department's contention is based on administrative convenience in support of its interpretation. There is no merit in contention. As stated hereinabove, s. 195(1) uses expression "sum chargeable under provisions of Act." One has to give weightage to those words. Further, s. 195 uses word 'payer' and not word "assessee". payer is not assessee. payer becomes assessee-in- default only when he fails to fulfill statutory obligation under s. 195(1). If payment does not contain element of income payer cannot be made liable. He cannot be declared to be assessee-in-default. contention of Department is based on apprehension which is ill founded. payer is also assessee under ordinary provisions of IT Act. When payer remits amount to non-resident out of India he claims deduction or allowances under IT Act for said sum as "expenditure". Under s. 40(a)(i), inserted vide Finance Act, 1988 w.e.f. 1st April, 1989, payment in respect of royalty, fees for technical services or other sums chargeable under IT Act would not get benefit of deduction if assessee fails to deduct tax at source in respect of payments outside India which are chargeable under IT Act. This provision ensures effective compliance of s. 195 relating to TDS in respect of payments outside India in respect of royalties, fees or other sums chargeable under IT Act. In given case where payer is assessee he will definitely claim deduction under IT Act for such remittance and on inquiry if AO finds that sums remitted outside India comes within definition of royalty or fees for technical service or other sums chargeable under IT Act then it would be open to AO to disallow such claim for deduction. Similarly, vide Finance Act, 2008, w.e.f. 1st April, 2008 sub-s. (6) has been inserted in s. 195 which requires payer to furnish information relating to payment of any sum in such form and manner as may be prescribed by Board. Therefore, there are adequate safeguards in Act which would prevent revenue leakage. CIT vs. Eli Lilly & Company (India) (P) Ltd. (2009) 223 CTR (SC) 20 : (2009) 21 DTR (SC) 74 : (2009) 312 ITR 225 (SC) relied on; Transmission Corporation of A.P. Ltd. vs. CIT (1999) 155 CTR (SC) 489 : (1999) 239 ITR 587 (SC) distinguished; CIT vs. Samsung Electronics Co. Ltd. & Ors. (2009) 227 CTR (Kar) 335 : (2009) 31 DTR (Kar) 257 and CIT (International Taxation) & Anr. vs. Sonata Information Technology Ltd. (2010) 232 CTR (Kar) 20 : (2010) 38 DTR (Kar) 350 set aside. Since High Court did not go into merits of case on question of payment of royalty, impugned judgments of High Court are set aside and these cases are remitted to High Court for de novo consideration of cases on merits. person paying interest or any other sum to non-resident is liable to deduct tax under s. 195 only if such sum is chargeable to tax in India and not otherwise. ITA No.1133/Kol/2013 A.Y.2009-10 ITO Wd-12(3) Kol. vs. M/s Jai Vikshu Niketan Pvt. Ltd. Page 11 Similarly for grounds of appeal of Revenue that assessee failed to substantiate genuineness of expenses we find that payment has been paid through banking channel, assessee has produced copies of bills of commission agents. We also find that there is huge increased in export turnover of assessee business. In earlier year export turnover of business of assessee was Rs.13 crores only and for year under consideration turnover from export business has been shown for Rs. 80 crores. In view of above, we are of considered opinion that assessee has justified its commission expenses claimed in profit and loss account. In this connection we rely in case of CIT vs Inbuilt Merchant Private Limited in ITAT No. 225 of 2013, G.A. No. 3825 of 2013 where Jurisdictional High Court of Calcutta has held as under:- views expressed by Assessing Officer are erroneous in law. Assessing Officer has overlooked importance of books of account maintained in ordinary course of business. Reference in this regard maybe made to sub-section (2) of Section32 of Indian Evidence Act, 1872. books of account maintained in ordinary course of business are relevant and they cannot be discarded in absence of appropriate reasons. mere fact that recipient did not reply in some cases or they were not found at address furnished by assessee does not in least prove fact that they were non existent or that payments shown to have been made by assessee were imaginary. With advancement of technology, it has become possible to sell goods throughout country through internet. For that purpose, agents are required throughout country. mechanism in that regard has been disclosed by se and has been recorded in order of CIT(Appeals). For purpose of carrying on its business, assessee has to recruit agents. It may not be possible for assessee to know them personally. Whatever address was furnished to assessee, has been disclosed to Income-tax Department. Payments were admittedly mad by cheque after deduction of tax. tax deducted as source has duly been deposited. judgment in case of CIT vs. Precision Finance vt. Ld., reported in 208 ITR 465 relied upon by Mr. Bhowmick does not really assist him. aforesaid judgment is authority for proposition that mere payment by account payee cheque cannot establish that transactions was genuine, but in case before us. Besides fact that payment was made by chequue, there are other pieces of evidence available which are follows: a) Books of Accounts maintained by assessee in ordinary course of business; b) Deduction of Tax at source; c) Deposit of money deducted at source; d) Particulars of recipient were duly furnished; we are, as such, of opinion that views ITA No.1133/Kol/2013 A.Y.2009-10 ITO Wd-12(3) Kol. vs. M/s Jai Vikshu Niketan Pvt. Ltd. Page 12 expressed by learned Tribunal are unexceptionable. We, therefore refuse to admit appeal. appeal is thus dismissed. Respectfully following precedent as above we find no reason to interfere with finding arrived by Ld. CIT(A). In circumstances, this issue of Revenue s appeal is dismissed. Accordingly, AO is directed. 8. In result, Revenue s appeal stands dismissed. Order pronounced in open court on 23/09/2016 Sd/- Sd/- (S.S.Viswanethra Ravi) (Waseem Ahmed) Judicial Member Accountant Member *Dkp - 23/09/2016 Kolkata Copy of Order Forwarded to:- 1. Appellant-ITO Ward-12(3), P-7, Chowringhee Sq. 7th Fl, Kolkata-69 2. /Respondent-M/s Jai Vikshu Niketan Pvt. Ltd., 132/1 Mahatma Gandhi Road, 4th Floor, Kaveri House, Burraabazr, Kolkata-007 3. Concerned CIT 4. - CIT (A) 5. , DR, ITAT, Kolkata 6. Guard file. True Copy By order ITO Ward-12(3), Kolkata v. M/s Jai Vikshu Niketan Pvt. Ltd
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