2019 (7) TMI 416

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....exports effected by the Assessee, the DRI had found that the Assessee was evading export customs duty by undervaluing iron ore shipments exported to various overseas buyers. The DRI found that for facilitating its exports and recovery of sales proceeds, the Assessee had appointed non-resident foreign agents, agreeing for direct payment to such agents by the foreign importers by deducting such amount from the export sales consideration payable to the exporter. The DRI found that customs duty was paid on such net amount remitted to the Assessee; the FOB value disclosed, on which customs duty was paid, did not include the commission paid to the foreign agents. The DRI found this to be an evasion of customs duty. Based on the DRI report, which ....

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....sand five hindered and forty three only) made on account of dis-allowance of the commission paid to non-resident foreign agents. 4. In the Department's appeal before ITAT, the Tribunal observed that the Assessee had disclosed FOB as actual receipt, which did not include the commission paid by the foreign buyers to the non-residents. The Tribunal held that the addition of income on account of such commission was rightly deleted by the CIT (Appeals) on the ground that the appellant did not claim any expenses against the commission paid; the payment of commission had a combined effect of liability as nil in the income of the Assessee; the transaction was between foreign agents and the exporters, which was not liable to be assessed in In....

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....oint of law provided the fact on the basis of which such issue of law was raised was available on record before the Tribunal. The Supreme Court held that the decision did not in any way relate to the power of the Assessing Officer to entertain a claim for deduction otherwise than upon filing of a revised return.   6. In the present case, there is no question of the Assessee claiming any deduction by filing of a revised return. It is the case of the Revenue that the Assessee had not disclosed the expenditure incurred by a foreign agent on its behalf. What the Assessee received from its foreign buyers was the net FOB value; the Assessee was not claiming any expenditure on account of commission paid. There is, thus, no question of any ....