TaxTMI 
TaxTMI 
2017 (9) TMI 1037
X X X X Extracts X X X X
X X X X Extracts X X X X
....ort of these Appeals would submit that the manner in which the Tribunal decided these Appeals raises substantial questions of law. 5. He would submit that the questions (i), (v) and (vi) proposed by the assessee are all substantial questions of law. 6. Mr. Murlidhar would submit that the Tribunal has completely misread and misinterpreted the facts placed on record. The Assessing Officer in this case was of the view that the assessee was obliged to deduct tax at source while making payment to the parties who brought the samples for testing and reports at the assessee's door steps. In fact, when such samples are tested by the assessee, it is the assessee who renders services to those sample collectors and who are distinct third parties. They are not obliged to hand over all their samples for testing to the assessee alone. These sample collectors can approach any of the laboratories for testing of their samples and submitting the final reports. In the circumstances, and in any event, when the assessee hands over the report of the testing, it is the assessee who receives payment. The Tribunal assumes by terming the whole arrangement as a principal to agent relationship, that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to determine the relationship between the parties. However, according to Mr. Chhotaray, in doing so and in directing the Assessing Officer to act on these lines, the Tribunal has discussed the case of both sides and perused carefully the materials on record. Hence, the impugned order does not raise any substantial question of law. 9. After hearing both sides and perusing the order of the Tribunal, we are of the opinion that these Appeals raise substantial questions of law. They are admitted on question nos. (i), (vi) and (vii) which read thus: (i) Whether on the facts and in the circumstances of the case and in law the findings / observations of the Tribunal that the Appellant has not "satisfactorily explained the queries", "not produced any document to substantiate the contention" and "not discharged the burden" is perverse, contrary to the facts on record and such that no reasonable person properly instructed as to the facts and law could come to in the light of the fact that (a) there was no such grievance raised by the Respondent, (b) the Appellant had filed voluminous evidence in support of its contentions and the Tribunal never indicated during the hearing that it was ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssee. The argument of the assessee that it is receiving money rather than paying it is therefore, without substance. It is a clear arrangement so as to avoid the obligation to deduct the tax at source. 12. Mr. Chhotaray may rely on paragraphs 2.1 and 2.4 to 2.6 of the Tribunal's order to submit that the Tribunal has applied its mind to what it terms as a question going to the root of the case, however, it did not decide it itself, but directed that it should be redecided by the Assessing Officer and there is no error in the said approach of the Tribunal. The manner of deciding the Appeal, is therefore, not unsatisfactory. 13. We are not in agreement with Mr. Chhotaray for more than one reason. 14. The Tribunal had before it the entire order of the Assessing Officer as also of the Commissioner of Income Tax (Appeals). 15. What the Tribunal did was that it set out common points which arose for its consideration. Those points are summarized as under: I. On the facts and in the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) erred in not correctly appreciating the nature of the payment made to TSPs that there is a principal and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e statements or the extracts thereof. We do not see how relying on these statements, which may or may not be referred by the Assessing Officer or the First Appellate Authority, can the Tribunal make a comment or an observation and thereafter render a conclusion that both authorities have not examined the matter on the points which occurred to the Tribunal. The Tribunal feels that they go to the root of the matter. In the whole process, we find that the Tribunal, unmindful of its position as a last fact finding authority, failed to make any reference to the observations, findings and conclusions in the order of the Assessing Officer and that of the First Appellate Authority. Pertinently, it lost sight of the fact that the Assessing Officer's order was not upheld but set aside by the First Appellate Authority, and the Revenue was in Appeal against the same. The Tribunal terms certain facts as undisputed, whereas, those are very much disputed. The assessee is not admitting that the service providers are its agents. It is not admitting that the service providers are allowed to collect necessary charges from the assessee's clients for collecting samples and delivering its report....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... TSPs/collectors/aggregators/assessee and if necessary examine them and decide the issue in accordance with law. We are of the view that the assessee has certainly not discharged the burden and the ld. Commissioner of Income Tax (Appeals) granted relief to the assessee ignoring the true facts and observation made in the assessment order, therefore, the impugned orders are set aside. The Assessing Officer is directed to examine the case afresh with different angles including the observations made by us. The assessee be given opportunity of being heard, so that no grievance is caused to either side." 19. We do not see how it is possible for us to uphold the order of the Tribunal and when it purports to decide two Appeals of the Revenue by this single paragraph conclusion. There is absolutely no discussion of the law and why the coordinate Bench decision rendered at Delhi is either distinguishable on facts or inapplicable. There is no discussion, much less any finding and conclusion that the order of the First Appellate Authority is perverse or is contrary to law. There are no infirmities, much less serious errors of fact and law noted by the Tribunal in the order of the Commission....