TaxTMI 
TaxTMI 
2026 (6) TMI 1402
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....ned advocate Mr. Jignesh Parikh for the opponent. 2. This appeal under section 260A of the Income Tax Act, 1961 (For short "the Act") has been preferred by the revenue proposing the following substantial questions of law arising out of order dated 31.08.2020 passed by the Income Tax Appellate Tribunal, D Bench, Ahmedabad (For short "the Tribunal") in I.T.A. No. 1998/Ahd/2017 for Assessment Year 2004-2005: "A] "Whether the Appellate Tribunal has erred in law and on facts in deleting the addition of Rs. 1,45,04,797/- made on account of commission on performance guarantee and addition of Rs.3,20,07,330/- on account of purchase commission?" [B] "Whether the Appellate Tribunal was justified in holding that the Assessing Offi....
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....tated that " the AO should verify the evidences placed before him about the quantum of commission paid and also the nature of services received by the assessee". 2.2 In return of income filed, assessee has not claimed commission expenses and the provision was added back stating that the same would be claimed at the time of actual payment and that stand was of assessment changed during the proceedings by claiming the expenses stating it is a contractual liability. However, neither any actual payment was made nor TDS has been deducted & paid on such claimed commission payments, as per law. 2.3 The Hon'ble High Court of Gujarat in its order observed that ""the courts have recognized the powers of the appellate co....
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....e learned CIT (Appeals) also observed that claim for the deduction of the aforesaid commission was made by the assessee without filing the revised return of income but merely on the letter filed before the Assessing Officer. 6. Being, aggrieved the assessee preferred an appeal before the Tribunal and the Tribunal restored the issue to the file of the Assessing Officer to verify evidences placed before him about quantum of commission paid and also the nature of services received by the assessee vide order dated 31.07.2015. 7. The assessee in the remand proceedings filed the necessary details in support of his claim for the amount of impugned commission expenses. The assessee without prejudice to the above also submitted that impugned a....
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.... "5. Before us the Revenue has raised a single issue namely, of the Tribunal entertaining the claim when assessee having made such a claim in the original return and without filing revised return. In short, case of the Revenue was confined to the contention that the assessee without filing a revised return could not have made such a claim and the Tribunal therefore, ought not to have accepted the same. 6. We may recall that the Assessing Officer had not rejected the claim on this ground. It was CIT(Appeals) who along side confirming the view of Assessing Officer on merits had pressed this issue in service referring to the decision of Supreme Court in case of Goetz (India) Ltd. v, CIT reported in (2006) 284 ITR 323(SC). The....
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....rious High Courts have viewed the dictum of the decision in the case of Goetze (India) Ltd. vs. Commissioner of Income-tax (supra). When it comes to the power of Appellate Commissioner or the Tribunal, the Courts have recognized their jurisdiction to entertain a new ground or a legal contention. A ground would have a reference to an argument touching a question of fact or a question of law or mixed question of law or facts. A legal contention would ordinarily be a pure question of law without raising any dispute about the facts. Not only such additional ground or contention, the Courts have also, as noted above, recognized the powers of the Appellate Commissioner and the Tribunal to entertain a new claim for the first time though not made b....
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....n and sought to raise such a claim. The Assessing Officer did not reject the claim on the ground that no revised return was filed. In any case, when the material was already on record, the CIT(Appeals) and the Tribunal could have entertained such a claim. 9. Under the circumstances, we do not see any reason to interfere with the view of the Tribunal. Tax appeals are dismissed." 13. The judgment in case of Pr. Commissioner of Income-Tax-Gandhinagar v. Gujarat Gas Trading Co. Ltd.(supra) is squarely applicable to the facts of the present case, as the assessee had in the returns filed, appended a note suggesting that the commission expenditure is not being currently claimed but would be claimed after actual payment. During the cour....