TaxTMI 
TaxTMI 
TaxTMI 
2015 (8) TMI 1207
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....al to the interests of the Revenue and in directing the Assessing Officer to complete the assessment afresh after giving effective opportunity to the assessee. 2. Brief facts are that assessee, a limited company engaged in manufacture and sale of float glass, mirror and trading in float glass. The assessee filed its return of income on 15.11.2007 declaring loss of Rs. 32,13,27,441/- under the head income from business and declared capital gains at Rs. 1,55,48,532/- under the normal provisions of the Act and income of Rs. 40,99,30,416/- under the provisions of section 115JB of the Act. Assessment under section 143(3) read with section 144C(13) of the Act was completed on 19.10.2011 determining loss at Rs. 23,52,67,331/- under the normal pro....
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....section 9(1)(vii) of the Act. Before the Commissioner of Income Tax, assessee contended that Assessing Officer in the course of assessment proceedings had taken a view on the issue which is favourable to the assessee and it is not open to the Commissioner of Income Tax to take a different view on the same issue. It was observed by the Commissioner of Income Tax that records show that Assessing Officer did not call for relevant details and also did not examine the nature of payment made to non-resident agents and he never examined whether the payments were in the nature of technical services within the meaning of clause (vii) of section 9(1) of the Act. Therefore, in such circumstances, it cannot be said that Assessing Officer had taken one ....
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.... no TDS is required to be made on the commission paid to foreign agents. Thus, the Commissioner of Income Tax is not justified in holding that assessment order is erroneous and prejudicial to the interests of the Revenue. 4. Departmental Representative vehemently supports the order of the Commissioner of Income Tax in holding that assessment order passed under section 143(3) read with section 144C is erroneous and prejudicial to the interests of the Revenue. Departmental Representative submits that Assessing Officer has not examined sales commission said to have been paid by the assessee to foreign agents and applicability of provisions of section 9(1)(vii) read with section 40(a)(i) of the Act and therefore Commissioner of Income Tax is p....
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....ke a different view on the same issue. As already pointed out, the records show that the Assessing Officer did not call for the relevant details and also did not examine the nature of the payments made to the non-resident. Accordingly it was never examined whether the payments were in the nature of technical services within the meaning of clause (vii) of section 9(1) of IT Act. As such it cannot be said that the A.O. had taken one of the two possible views on the issue. The Hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd Vs Cl'T .(243 ITR 83) had clearly noted that the Commissioner of Income-tax is within his jurisdiction to set aside the order if it is passed without examination of the relevant details and provision....
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....e principles of natural justice or without application of mind are also erroneous". In the instant case, the Assessing Officer while completing the assessment under section 143(3) read with section 147 did not examine the payments made to nonresident agents towards sales commission and applicability of provisions of section 40(a)(i) read with section 9(1)(vii) of the Act. The Assessing Officer has passed the assessment order allowing the claim of the assessee without calling for the details and examining them. Therefore, the order passed by the Assessing Officer without application of mind is certainly an erroneous order and is prejudicial to the interests of the Revenue. The Hon'ble Allahabad High Court in the case of Mannulal Matadeen Vs.....