SUMITOMO CHEMICAL INDIA P.LTD, MUMBAI V. DCIT RG 3(3), MUMBAI

ITA 1353/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4054 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 11 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 11-11-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 28-02-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PREMANAND J
• Keywords: Principle of natural justice; Revised return; Revenue expenditure
• Section: 37(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NOS.1353 & 1354/M/2012 ASSESSMENT YEARS: 2004-05 & 2005-06 M/S. SUMITOMO CHEMICAL INDIA PVT. LTD., 6 TH FLOOR, MOTI MAHAL, 195 J. TATA ROAD, CHURCHGATE, MUMBAI 400 020 PAN: AAECS 3750L VS. DY. COMMISSIONER OF INCOME TAX, RANGE 3(3), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI AJIT KUMAR JAIN, A.R. REVENUE BY : SHRI PREMANAND J., D.R. DATE OF HEARING : 23.09.2015 DATE OF PRONOUNCEMENT : 03.02.2016 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE ABOVE TITLED APPEALS HAVE BEEN PREFERRED BY TH E ASSESSEE AGAINST TWO SEPARATE ORDERS BOTH DATED 13.09.2011 OF THE COMMIS SIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO ASSESSMENT YEARS 2004-05 & 2005-06 RESPECTIVELY. SINCE THE FACTS AN D ISSUES INVOLVED THEREIN ARE IDENTICAL IN NATURE, HENCE THE SAME ARE TAKEN T OGETHER FOR DISPOSAL BY THIS COMMON ORDER. 2. FIRST WE TAKE UP THE ASSESSEES APPEAL I.E. ITA NO.1353/M/2012 FOR A.Y. 2004-05. ITA NO.1353/M/2012 FOR A.Y. 2004-05 3. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: 1. IN PASSING THE APPELLATE ORDER WHICH IS IN GROS S VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND HAS BEEN PASSED WITHOUT CONSIDERING THE EVIDENCE PLACED DURING THE COURSE OF THE APPELLATE PROCEEDINGS. THE APPELLATE ORDER HAS BEEN PASSED WITHOUT GIVING PROPER AND ITA NOS.1353 & 1354/M/2012 M/S. SUMITOMO CHEMICAL INDIA PVT. LTD. 2 EFFECTIVE OPPORTUNITY OF HEARING TO THE APPELLANT A ND WITHOUT CAUSING PROPER INQUIRY. 2. IN CONFIRMING THE DISALLOWANCE MADE BY THE ASSES SING OFFICER (AO') WITH RESPECT TO COMMISSION EXPENSES OF RS. 82,33,042 PAID TO KAR AMCHAND APPLIANCES PRIVATE LIMITED ('KAPL'). IN DOING SO, THE CIT(A), WITHOUT CONSIDER ING THE EVIDENCE PLACED DURING THE COURSE OF APPELLATE PROCEEDINGS, ERRED IN CONCLUDIN G THAT THE APPELLANT HAS FAILED TO PROVIDE PROOF / DOCUMENTARY EVIDENCE TO SUBSTANTIATE THAT S ERVICES WERE PROVIDED BY KAPL TO THE APPELLANT, FOR WHICH THE COMMISSION PAYMENTS WERE M ADE. 3. IN CONFIRMING THE DISALLOWANCE MADE BY THE AO WI TH RESPECT TO COMMISSION EXPENSES OF RS.35,00,000 PAID TO SUMITOMO CORPORATION INDIA PRI VATE LIMITED ('SUMITOMO CORPORATION'). IN DOING SO, THE CIT(A) ERRED IN CON CLUDING THAT THE ARRANGEMENT BETWEEN THE APPELLANT AND SUMITOMO CORPORATION IS FOR A SELF SE RVING PURPOSE AND WITH THE SOLE INTENTION TO REDUCE THE TAX LIABILITY OF THE APPELL ANT. FURTHER, THE CIT(A) ERRED, WITHOUT SPECIFICALLY CALLING FOR PROOF OF PAYMENT ALONGWITH THE TDS CERTIFICATES FOR THE COMMISSION PAYMENT TO SUMITOMO CORPORATION, IN CONCLUDING THAT THE APPELLANT'S AUTHORIZED REPRESENTATIVE FAILED TO FURNISH SUCH INFORMATION. 4. IN CONFIRMING THE DISALLOWANCE MADE BY THE AO W ITH RESPECT TO ADVERTISING AND PROMOTIONAL EXPENSES OF RS 45,00,000 UNDER SECTION 37(1) OF THE INCOME-TAX ACT, 1961 PAID TO GODREJ SARALEE LIMITED ('GODREJ'). 5. IN CONFIRMING THE DISALLOWANCE MADE BY THE AO WI TH RESPECT TO TREATMENT OF LEASEHOLD IMPROVEMENTS OF RS.14,90,000 AS REVENUE EXPENDITURE . THE APPELLANT CRAVES LEAVE TO ADD, ALTER, VARY, OMI T, SUBSTITUTE OR AMEND THE ABOVE GROUNDS OF APPEAL, AT ANY TIME BEFORE OR AT, THE TIME OF HE ARING OF THE APPEAL, SO AS TO ENABLE THE HONOURABLE INCOME-TAX APPELLATE TRIBUNAL TO DECIDE THIS APPEAL ACCORDING TO THE LAW. FOR THE ABOVE AND OTHER GROUNDS AND REASONS WHICH M AY BE SUBMITTED DURING THE COURSE OF HEARING OF THIS APPEAL, THE APPELLANT REQUESTS THAT THE APP EAL BE ALLOWED AS PRAYED. 4. AT THE OUTSET, THE LD. A.R. OF THE ASSESSEE HAS STATED AT BAR THAT AS PER THE INSTRUCTIONS OF HIS CLIENT, HE DOES NOT PRESS GROUN D NO.1. GROUND NO.1 IS THEREFORE DISMISSED AS NOT PRESSED. GROUND NO.2 5. VIDE GROUND NO.2, THE ASSESSEE HAS AGITATED THE CONFIRMATION OF DISALLOWANCE OF EXPENDITURE WITH RESPECT TO COMMISS ION PAID OF RS.82,33,042/- TO KARAMCHAND APPLIANCES PVT. LTD. (KAPL). THE CAS E OF THE ASSESSEE IS THAT THE ASSESSEE HAD SUPPLIED GOODS TO ICON HOUSEHOLD P RODUCTS PVT. LTD. WHO HAS BEEN A CONTRACT MANUFACTURER FOR KAPL. THE GOODS W ERE INVOICED/BILLED AT A HIGHER RATE AT THE INSTRUCTION OF THE KAPL AND THE DIFFERENCE WAS PAID TO THE KAPL AS COMMISSION. THE REQUIRED TDS WAS ALSO DEDU CTED ON THE SAID ITA NOS.1353 & 1354/M/2012 M/S. SUMITOMO CHEMICAL INDIA PVT. LTD. 3 COMMISSION. THE ASSESSING OFFICER (HEREINAFTER REF ERRED TO AS THE AO), HOWEVER, DISALLOWED THE SAID COMMISSION ON THE GROU ND THAT IN THE A.Y. 2003- 04, SUCH A CLAIM WAS MADE BY THE ASSESSEE, HOWEVER, THE KAPL IN RESPONSE TO NOTICE UNDER SECTION 133 OF THE ACT HAD SUBMITTED T HAT IT DID NOT ENTER INTO ANY FINANCIAL TRANSACTIONS WITH THE ASSESSEE DURING THE FINANCIAL YEAR RELEVANT TO A.Y. 2003-04. BEING AGGRIEVED BY THE ABOVE DISALLOW ANCE, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). 6. THE LD. CIT(A), HOWEVER, ALSO CONFIRMED THE SAI D DISALLOWANCE. 7. BEFORE US, THE LD. A.R. OF THE ASSESSEE HAS SUBM ITTED THAT EACH YEAR IS A DIFFERENT YEAR. FOR THE YEAR UNDER CONSIDERATION, THE KAPL HAD CONFIRMED THE RECEIPT OF COMMISSION. THE AO SHOULD HAVE VERIFIED OR SUMMONED THE KAPL TO VERIFY THE TRANSACTIONS FOR THE YEAR UNDER CONSI DERATION. 8. WE FIND FORCE IN THE CONTENTION OF THE LD. AR TH AT EACH YEAR IS A DIFFERENT YEAR. THE FACTS RELATING TO THE PAYMENT OF COMMISSION CANNOT BE BORROWED FROM THE EARLIER ASSESSMENT YEAR. THE AO IS SUPPOSED TO MAKE NECESSARY ENQUIRIES ABOUT THE PAYMENT OF COMMISSION TO KAPL FOR THE YEAR UNDER CONSIDERATION. WE, THEREFORE, RESTORE THIS I SSUE TO THE FILE OF THE AO WITH A DIRECTION TO MAKE THE PROPER INQUIRIES/VERIFICATI ON REGARDING THE PAYMENT OF COMMISSION BY THE ASSESSEE TO KAPL AND TO RETURN A DEFINITE FINDING ON THIS ISSUE IN ACCORDANCE WITH LAW. GROUND NO.3 9. IN GROUND NO.3, THE ASSESSEE HAS AGITATED THE CO NFIRMATION OF DISALLOWANCE WITH RESPECT TO COMMISSION EXPENSES OF RS.35,00,000/- PAID TO SUMITOMO CORPORATION INDIA PVT. LTD. THE AO DISALL OWED THE SAID COMMISSION OBSERVING THAT THE SAID SUMITOMO CORPORA TION INDIA PVT. LTD. WAS A RELATED PARTY OF THE ASSESSEE AND THAT THE AGREEM ENT RELATING TO THE PAYMENT OF COMMISSION WAS AN INTERNAL SELF-CREATED DOCUMENT BE TWEEN THE PARTIES SO AS TO DIVERT THE INCOME OF THE ASSESSEE TO SUMITOMO CORPO RATION INDIA PVT. LTD. TO ITA NOS.1353 & 1354/M/2012 M/S. SUMITOMO CHEMICAL INDIA PVT. LTD. 4 REDUCE THE TAX LIABILITY. EVEN THE RATE OF COMMISS ION WAS NOT FIXED IN THE AGREEMENT. IN THE DEBIT NOTES, THERE WAS NO MENTIO N OF THE PARTIES TO WHOM THE ASSESSEE HAD SOLD THE PRODUCTS. 10. THE LD. CIT(A) ALSO CONFIRMED THE SAID DISALLOW ANCE MADE BY THE AO. 11. BEFORE US, THE LD. A.R. OF THE ASSESSEE HAS SUB MITTED THAT THE DEBIT NOTES WERE SUBMITTED TO THE AO AND THE COMMISSION WAS PAI D RANGING FROM 0.3% TO 3% ON SALES TO VARIOUS PARTIES. THE RATE OF COMMIS SION WAS NOT FIXED BUT WAS AGREED IN RELATION TO DIFFERENT PARTIES AND VARIED FROM CUSTOMER TO CUSTOMER. BUT IT WAS AGREED THAT THE PERCENTAGE OF COMMISSION WOULD NOT EXCEED 5% OF THE VALUE OF THE GOODS. EVEN IN RELATION TO ANOTHE R PARTY NAMELY UDAY CHEMICALS, THE PAYMENT OF COMMISSION AT A VARIABLE RATE HAS BEEN ACCEPTED BY THE AO. 12. WE FIND FORCE IN THE CONTENTION OF THE LD. A.R. THAT THE COMMISSION CAN BE AGREED TO BE PAID AT VARIABLE RATES. HOWEVER, W E FIND THAT THE PROPER ENQUIRIES HAVE NOT BEEN MADE AS TO WHAT SERVICES TH E SUMITOMO CORPORATION INDIA PVT. LTD. OFFERED TO THE ASSESSEE AND TO WHOM THE GOODS WERE SOLD AND WHETHER THE TRANSACTION RELATING TO THE PAYMENT OF COMMISSION WAS GENUINE OR NOT. FURTHER, WHETHER THE CLAIM OF THE ASSESSEE TH AT THE SUMITOMO CORPORATION INDIA PVT. LTD. WAS NOT A RELATED PARTY HAS NOT BEE N EXAMINED BY THE AO. IN VIEW OF THIS, THIS ISSUE IS RESTORED TO THE FILE OF THE AO TO MAKE PROPER ENQUIRIES IN THIS RESPECT AND DECIDE THE ISSUE AFRE SH IN ACCORDANCE WITH LAW. GROUND NO.4 13. VIDE GROUND NO.4, THE ASSESSEE HAS AGITATED THE DISALLOWANCE WITH RESPECT TO ADVERTISING AND PROMOTIONAL EXPENSES OF RS.45,00,000/- UNDER SECTION 37(1) OF THE ACT. THE BRIEF FACTS RELATING TO THE ISSUE UNDER CONSIDERATION ARE THAT DURING THE YEAR UNDER CONSID ERATION, THE ASSESSEE HAD INTRODUCED TWO NEW PRODUCTS I.E. PARLLE AND GOKILAH T. THESE PRODUCTS WERE USED BY GODREJ SARALEE LIMITED FOR THE PURPOSE OF M ANUFACTURING AEROSOL. ITA NOS.1353 & 1354/M/2012 M/S. SUMITOMO CHEMICAL INDIA PVT. LTD. 5 SINCE ONLY THE GODREJ SARALEE LIMITED WAS THE PURCH ASER OF THE SAID PRODUCTS, HENCE UNDER AN ARRANGEMENT, THE ASSESSEE AGREED TO PART FINANCE THE MARKETING AND ADVERTISEMENT COST OF AEROSOL MANUFACTURED BY T HE GODREJ SARALEE LIMITED WITH AN INTENTION TO INCREASE THE CONSUMPTION OF IT S PRODUCTS USED IN THE MANUFACTURE OF AEROSOL. THE AO DISALLOWED THE SAID EXPENDITURE OBSERVING THAT THE SAME WAS NOT RELATING TO THE ADVERTISEMENT EXPENSES OF THE PRODUCTS OF THE ASSESSEE BUT OF THE GODREJ SARALEE LIMITED. 14. THE LD. CIT(A) ALSO CONFIRMED THE SAID DISALLOW ANCE. 15. BEFORE US, THE LD. A.R. OF THE ASSESSEE HAS SUB MITTED THAT BY WAY OF PARTICIPATING IN ADVERTISEMENT OF AEROSOL, THE ASSE SSEE IN FACT HAD PROMOTED THE CONSUMPTION AND SALE OF ITS OWN PRODUCTS WHICH WERE USED FOR THE MANUFACTURE OF AEROSOL. IT WAS A BUSINESS DECISION BASED ON CO MMERCIAL EXPEDIENCY. WE FIND FORCE IN THE CONTENTION OF THE LD. A.R. IT IS THE ASSESSEE WHO HAS TO SEE THE BUSINESS PROSPECTS AND TO DECIDE THE FUTURE COU RSE OF ACTION BY WAY OF DIRECTLY OR INDIRECTLY ADVERTISING THE PRODUCT WHIC H IS MANUFACTURED FROM THE RAW MATERIAL PRODUCED BY THE ASSESSEE. IT WAS A CO MMERCIAL DECISION OF THE ASSESSEE AND THE COST OF EXPENDITURE INCURRED BY TH E ASSESSEE WAS TOWARDS BUSINESS EXPEDIENCY. WE, THEREFORE, DO NOT FIND AN Y JUSTIFICATION ON THE PART OF THE LOWER AUTHORITIES IN MAKING THE DISALLOWANCE ON THIS ISSUE AND THE SAME IS ORDERED TO BE DELAYED. THIS ISSUE IS ACCORDINGLY D ECIDED IN FAVOUR OF THE ASSESSEE. GROUND NO.5 16. VIDE GROUND NO.5, THE ASSESSEE HAS AGITATED THE DISALLOWANCE OF RS.14,90,000/- ON IMPROVEMENTS OF LEASEHOLD PREMISE S. THE ASSESSEE IN THE RETURN OF INCOME HAD CAPITALIZED THE PAYMENTS OF RS .14,90,000/- MADE ON IMPROVEMENTS OF LEASEHOLD PREMISES AND CLAIMED DEPR ECIATION AT THE RATE OF 10% ON THE SAME. HOWEVER, DURING THE ASSESSMENT PR OCEEDINGS, THE ASSESSEE CLAIMED THAT THE SAME WAS REVENUE EXPENDITURE. THE AO, HOWEVER, DECLINED TO ITA NOS.1353 & 1354/M/2012 M/S. SUMITOMO CHEMICAL INDIA PVT. LTD. 6 ENTERTAIN THE REVISED CLAIM OF THE ASSESSEE ON THE GROUND THAT THE SAME COULD HAVE BEEN PRESSED BY WAY OF FILING A REVISED RETURN . 17. THE LD. CIT(A) ALSO CONFIRMED THE ABOVE FINDING OF THE AO. 18. BEFORE US, THE LD. A.R. OF THE ASSESSEE HAS REL IED UPON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V S. PRUTHVI BROKERS AND SHAREHOLDERS PVT. LTD. (2012) 349 ITR 336 (BOM.). THE HONBLE BOMBAY HIGH COURT IN THE CASE OF PRUTHVI BROKERS & SHAREH OLDERS PVT. LTD. (SUPRA), WHILE RELYING UPON THE VARIOUS DECISIONS OF THE HON BLE SUPREME COURT AND OTHER HONBLE HIGH COURTS, HAS HELD THAT EVEN IF A CLAIM IS NOT MADE BEFORE THE AO, IT CAN BE MADE BEFORE THE APPELLATE AUTHORITIES . THE JURISDICTION OF THE APPELLATE AUTHORITIES TO ENTERTAIN SUCH A CLAIM IS NOT BARRED. THE HONBLE BOMBAY HIGH COURT WHILE RELYING UPON THE DECISION O F THE HONBLE SUPREME COURT IN THE CASE OF JUTE CORPORATION OF INDIA LIM ITED VS. CIT 1991 SUPP (2) SCC 744 = (1991) 187 ITR 688 HAS OBSERVED THAT THE POWER OF THE APPELLATE COMMISSIONER IS COTERMINOUS WITH THAT OF THE INCOME TAX OFFICER AND AN APPELLATE AUTHORITY WHILE HEARING APPEAL AGAINST TH E ORDER OF THE SUBORDINATE AUTHORITY, HAS ALL THE POWERS WHICH THE ORIGINAL AU THORITY MAY HAVE IN DECIDING THE QUESTIONS BEFORE IT, SUBJECT TO THE RESTRICTION S OR LIMITATIONS, IF ANY, PRESCRIBED BY STATUTORY PROVISIONS. IN THE ABSENCE OF ANY STATUTORY PROVISION, THE APPELLATE AUTHORITY IS VESTED WITH ALL THE PLEN ARY POWERS WHICH THE SUBORDINATE AUTHORITY MAY HAVE IN THE MATTER. AN A SSESSEE IS ENTITLED TO RAISE NOT MERELY ADDITIONAL LEGAL SUBMISSIONS BEFORE THE APPELLATE AUTHORITIES BUT IS ALSO ENTITLED TO RAISE ADDITIONAL CLAIMS BEFORE THE M. THE APPELLATE AUTHORITIES HAVE THE DISCRETION WHETHER OR NOT TO PERMIT SUCH A DDITIONAL CLAIMS TO BE RAISED. IT CANNOT, HOWEVER, BE SAID THAT THEY HAVE NO JURISDICTION TO CONSIDER THE SAME. THE APPELLATE AUTHORITIES HAVE JURISDICT ION TO DEAL NOT MERELY WITH ADDITIONAL GROUNDS WHICH BECAME AVAILABLE ON ACCOUN T OF CHANGE OF CIRCUMSTANCES OR LAW, BUT WITH ADDITIONAL GROUNDS W HICH WERE AVAILABLE WHEN THE RETURN WAS FILED BUT COULD NOT HAVE BEEN RAISED AT THAT STAGE OR THE GROUNDS ITA NOS.1353 & 1354/M/2012 M/S. SUMITOMO CHEMICAL INDIA PVT. LTD. 7 WHICH BECAME AVAILABLE ON ACCOUNT OF CHANGE OF CIRC UMSTANCES OR LAW. THE WORDS COULD NOT HAVE BEEN RAISED MUST BE CONSTRUE D LIBERALLY AND NOT STRICTLY. IT IS OPEN TO THE ASSESSEE TO CLAIM A DEDUCTION BEF ORE THE APPELLATE AUTHORITY WHICH COULD NOT HAVE BEEN CLAIMED BEFORE THE AO. T HE HONBLE BOMBAY HIGH COURT HAS FURTHER OBSERVED THAT THE DECISION O F HONBLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LIMITED V. CIT (2006) 157 TAXMAN 1, REGARDING THE RESTRICTION OF MAKING THE CLAIM THROUGH A REVIS ED RETURN WAS LIMITED TO THE POWERS OF THE ASSESSING AUTHORITY AND THE SAID JUDG MENT DOES NOT IMPINGE ON THE POWER OR NEGATE THE POWERS OF THE APPELLATE AUT HORITIES TO ENTERTAIN SUCH CLAIM BY WAY OF ADDITIONAL GROUND. 19. IN VIEW OF THE ABOVE STATED LEGAL POSITION, THE ORDER OF THE LD. CIT(A) IS THEREFORE SET ASIDE. HOWEVER, WE FIND THAT THE GENU INENESS OF THE EXPENDITURE IN RELATION TO ABOVE CLAIM HAS NOT BEEN DEMONSTRATE D BY THE ASSESSEE BEFORE THE AO. WE, THEREFORE, RESTORE THIS ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO VERIFY THE CLAIM OF THE ASSESSEE OF EXPENDITURE ON LEASEHOLD IMPROVEMENTS AND IF THE SAME IS FOUND TO BE CORRECT THEN TO ALLOW T HE SAME. 20. IN VIEW OF OUR OBSERVATIONS MADE ABOVE, THE APP EAL OF THE ASSESSEE IS TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 21. NOW WE TAKE UP THE APPEAL OF THE ASSESSEE FOR A .Y. 2005-06 I.E. ITA NO.1354/M/2012. ITA NO.1354/M/2012 FOR A.Y. 2005-06 22. THE ASSESSEE IN THIS APPEAL HAS TAKEN THREE EFF ECTIVE GROUNDS OF APPEAL. GROUND NO.1 23. GROUND NO.1 IS NOT PRESSED BY THE ASSESSEE AND THE SAME IS DISMISSED BEING NOT PRESSED. ITA NOS.1353 & 1354/M/2012 M/S. SUMITOMO CHEMICAL INDIA PVT. LTD. 8 GROUND NO.2 24. GROUND NO.2 IS RELATING TO THE DISALLOWANCE IN RESPECT OF ADVERTISEMENT AND PROMOTIONAL EXPENSES. THIS GROUND IS IDENTICAL AND THE NATURE OF THE EXPENSES IS ALSO THE SAME AS PLEADED IN GROUND NO.4 OF THE ASSESSEES APPEAL FOR A.Y. 2004-05. IN VIEW OF OUR FINDINGS GIVEN AB OVE, THIS GROUND IS ACCORDINGLY ALLOWED IN FAVOUR OF THE ASSESSEE. GROUND NO.3 25. THIS GROUND TAKEN BY THE ASSESSEE IN THIS APPEA L IS RELATING TO THE COMMISSION EXPENSES PAID TO SUMITOMO CORPORATION IN DIA PVT. LTD. THIS GROUND IS IDENTICAL TO GROUND NO.3 OF THE ASSESSEE S APPEAL FOR A.Y. 2004-05. IN VIEW OF OUR FINDINGS GIVEN ABOVE, THIS GROUND IS RESTORED TO THE FILE OF THE AO WITH SAME DIRECTIONS AS GIVEN ABOVE IN ASSESSEE S APPEAL FOR A.Y. 2004-05. 26. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03.02.2016. SD/- SD/- (N.K. BILLAIYA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 03.02.2016. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.