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TaxTMI 
TaxTMI 
TaxTMI 
2014 (11) TMI 798
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.... the Companies Act, 1956. It has its registered office at the address mentioned in the cause title of this Writ Petition. The petitioner had approached the Tribunal against the order passed by the Commissioner of Income Tax (Appeals). The assessment years in question were as noted above. The case of the petitioners is in relation to allowance of service charges including travelling expenses. The factual position regarding this claim for the assessment years noted above is on the record of the Commissioner of Income Tax (Appeals) during the course of a challenge by the petitioner-assessee to an order passed by the Assessing Officer on 30th March, 2001. The grievance was that the Assessing Officer had erroneously refused to grant the claim of the assessee. Before the Commissioner of Income Tax (Appeals), initially the documents in relation to service charges were filed but the Commissioner remanded the matter to the Assessing Officer and called for a report. The report after remand was received by the Commissioner of Income Tax (Appeals). He, therefore, proceeded to decide the matter and passed an order on 14th August, 2003. He, in that order, has held that the disallowance on accoun....
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....d DR to deviate from the decision of the Tribunal for the assessment year 1997-98 have been replied by the learned senior counsel for the assessee which are already mentioned at paragraphs 50 to 71 of this order and these need not be incorporated here to avoid repetition. Considering the totality of the facts of the case and respectfully following the decision of the Tribunal in assessee's own case for the immediately preceding assessment year, we are of the opinion that the marketing expenses claimed by the assessee has to be allowed. However, as regards service charges, undoubtedly the assessee has not furnished the details before the Assessing Officer except the copy of the service agreement and the debit notes. It is the settled proposition of law that for claiming any expenditure, the onus is always on the assessee to satisfy the Assessing Officer with documentary evidence regarding the genuineness of the expenditure. The assessee in the instant case has failed to discharge the onus. Further the learned Commissioner of Income Tax (Appeals) has given a finding at para 8.1 of his order that the claim of the assessee in various submissions that all expenses as incurred by CCI....
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....mistake inasmuch as the Tribunal failed to note that the facts were same. There was evidence before the Commissioner and from 1999 onwards even the evidence was before the Assessing Officer. There was a direction to the Assessing Officer by the Commissioner to scrutinize and verify the documents and make a report. Once that remand report was received by the Commissioner and he duly considered it, for the purposes of enhancing the disallowance, then, the direction that the issue relating to service charges including traveling expenses needs to be restored to the file of the Assessing Officer is nothing but an apparent mistake and the Tribunal has full powers to correct it. 11] The Tribunal was also informed that it committed the same mistake in relation to assessment years 1997-98 but refused to go into the aspect of service charges and render any finding thereon. Instead it issued a similar direction of restoring the matter to the file of the Assessing Officer. A Misc. Application to correct this mistake was filed which was rejected. All this led to the petitioner-assessee filing a Writ Petition in this Court being Writ Petition No.7459/2006 which was decided by this Court on 12th....
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.... the Assessing Officer did not have the full details is incorrect. Alternatively and without prejudice, even if, there were not full details before the Assessing Officer they were definitely available before the Commissioner of Income Tax (Appeals). Those were enough for decision on the disallowance of service charges including traveling expenses and the issue in relation thereto. For all these reasons, this was not a case where the Tribunal could have rejected the application for rectification of the mistake. For these reasons, the impugned order deserves to be set aside. 14] Mr. Dastur has invited our attention to the contents of the Misc. Application and equally the order of the Tribunal on the same. He submits that the order passed by the Tribunal on this Misc. Application and to the extent challenged before us is totally perverse inasmuch as in para 17.1 it had noted the submission of the petitioner's counsel that the assessee filed various vouchers in 10 box files. It has also referred to the finding of the Commissioner of Income Tax (Appeals) that there are expenses which have been claimed by one CCI Inc. If that was the factual position, then, the Tribunal was not requ....
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....on to the extent it raises the claim/disallowability of service charges including traveling expenses and the order on Misc. Application in this behalf. 17] We have also perused the order passed by this Court in the case of the very petitioner for the prior assessment year and a copy of which is at page 61 of the paper book. It is clear that the said order was passed in a Writ Petition by the petitioner-assessee. That Writ Petition challenged the order passed on Misc. Application filed by the petitioner-assessee for rectification of the mistakes in the order of the Tribunal for assessment years 1997-98. After a detailed scrutiny of the record pertaining to that assessment year, this Court concluded that the petitioner was right in the complaint that it made. Even on that occasion, the Tribunal had chosen to restore the claim/disallowance in relation to service charges to the file of the Assessing Officer for a decision afresh and in accordance with law. The petitioner pointed out that the foundation or basis on which the Tribunal proceeded earlier was erroneous inasmuch as there was adequate and enough material on record to deal with and decide the petitioner's claim in relatio....
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....We find that once the Tribunal concluded that considering the totality of the facts of the case and following the decision of the Tribunal in assessee's own case for the immediately preceding assessment year, the claim in relation to marketing expenses raised by the assessee needs to be allowed, however, on the same material and on totality of the facts as far as service charge is concerned, the Tribunal holds that the assessee has failed to furnish full details before the Assessing Officer except the copy of the service agreement and the debit notes. There is no reference at all made by the Tribunal to the adequacy or sufficiency or otherwise of the materials before Commissioner of Income Tax (Appeals) and the Respondent No.2. It has failed to take note of the report submitted to the Commissioner by the Assessing Officer after remand of the case to him. In fact, the petitioner's case was that there was enough material on record enabling the Tribunal to decide the issues raised. For the assessment year 1998-99, the evidence was filed before the Commissioner of Income Tax (Appeals) and in relation to assessment year 1999-2000 to 2004-05, the evidence was filed in several box....
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....pply it in the later assessment years. We have taken note of this apprehension but we are of the opinion that once Mr. Dastur appearing for the petitioner has not pitched or placed the case of the petitioner so high or to such an extent that we must direct the Tribunal to follow a particular course in law, then, this apprehension of Mr. Gupta has no basis. Once the Tribunal is directed to decide and consider the claim in relation to service charges, then, it is equally obliged to consider and decide it by taking into account the contentions and case of both sides. It cannot render any finding and conclusion without a complete and proper hearing. It must also take note of the submissions of the revenue that the position has undergone a drastic change after the assessment year 1997-98 and in relation to the same claim. Therefore, we have no doubt that when the Tribunal considers the matter again it will also deal with revenue's contentions that the finding and conclusion on this issue of service charges for prior assessment year will not bind the Tribunal for the later years. 20] Once we have taken note of the apprehension of the revenue and clarified the matter as above, then, ....