TaxTMI 
TaxTMI 
TaxTMI 
2022 (8) TMI 743
X X X X Extracts X X X X
X X X X Extracts X X X X
....d by the assessee which has not been considered by the tribunal. It is also noteworthy that the tribunal has not considered its order passed in respect of Assessment Year 2006-07 by which it had restored the case back to the file of the Assessing Officer who after appreciation of material on record had allowed the claim of the assessee for deduction. However, the tribunal has upheld the disallowance under Section 37 of the Act merely on the basis of order passed in respect of preceding year. The order passed by the tribunal is cryptic and suffers from the vice of non application of mind. In view of preceding analysis, the substantial question of law is answered in favour of the assessee and against the revenue. In the result, the order dated 30.12.2015 insofar as it pertains to Assessment Years 2009-10 and 2010-11 is hereby quashed and the matter is remitted to the tribunal for decision afresh in accordance with law." 2. In view of the above directions of the Hon'ble High Court, the above appeals were heard on 01.08.2022. The solitary issue raised in all the appeals is regarding commission payment made by the assessee, whether it is an allowable deduction. ITA No.646/Bang/2020 c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l even after noticing the adverse order against the assessee for assessment year 2002-2003, had set aside the matter to the A.O. to consider the allowability of the commission payment made by the assessee. It was stated that subsequent to the remand by the ITAT for assessment year 2006-2007, the A.O. had summoned the commission agents u/s 133(6) of the I.T.Act, verified the payments made and came to a categorical conclusion that the commission payments were genuine and reasonable. Therefore, it was prayed that the facts being identical and the commission payments also are more or less to the same parties, the Tribunal in its earlier order dated 30.12.2015 has erred in disallowing the commission payments u/s 37 of the I.T.Act. 5. The learned Departmental Representative supported the assessment orders. 6. We have heard rival submissions and perused the material on record. The assessee has filed fresh paper book enclosing therein summary of agency commission paid for the assessment years 2006-2007 to 2015-2016. The party-wise break-up of the commission payments for the aforesaid assessment years are also mentioned in the particulars given. The assessee has also furnished the assessm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....when commission payments have been made through account payee cheques and appellant had deducted TDS under section 194H in respect of the said payment. It is also the claim of the appellant that commission received by the agents have been offered as their income and brought to tax. These matters have not been properly examined. 6.4 The Assessing Officer had pointed out in his order that "the percentage of the commission vis-a-vis the total receipt on supply of turbines is substantially high....[courtesy: Para 8 of the asst. order]. However, he had not spelt out how the percentage of the commission was so high with any comparable figure. He had also, in our considered view, failed to highlight the alleged agreements were vague and general in nature. It appears that the AO had highly been influenced to arrive at such a conclusion of the findings of the earlier Bench in the appellant's own case for the AY 2002-03 (supra) without analyzing the merits and demerits of the issue before him. However, while arriving at such a conclusion, the IT authorities have failed to keep in view the rulings of the Hon'ble Apex Court in the case of Sasson J David & Co; Pvt. Ltd v. CIT (1979) 118 I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing out specific projects and the services rendered by these agents. Sl No. Name of agents Confirmation of commission amount 1. Lakshmi Engineering & Construction. 5202000 2. Kotawal India Ltd. 1497293 3. EDCO (I) Pvt. Ltd. 7500000 4. Harishankar Power Projects 9170000 Total 23369293 The details furnished by the above parties have been carefully examined. After going through the contents of the agreements and also the services rendered by these agents and taking into account the benefits derived by the assessee in executing the projects effectively with the help of these agents, the .commission amount paid to the above four parties are considered to be reasonable and hence the same is allowed. As regards the commission paid to M/s.S R Engineers to the tune of Rs.2,00,000/-, this party has not responded to the letter issued u/s 133(6). The assessee company was again asked to furnish the details from this party. The assessee company has expressed its inability to furnish the details at the stage and has agreed for disallowance of Rs.2 lacs. Similarly, in respect of claim of commission payment of Rs.4,32,626/- to Global Allianz Pvt. Ltd., Srilan....