The ACIT, Circle-2, Surat V. M/s. T.M. Patel Exports, Surat

ITA 2016/AHD/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6768 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 31-03-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 29-05-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G S SURYAWANSI
• Assessee Lawyers: S N SOPARKAR
• Keywords: Rejection of books of accounts; Business income; Diversion of income; Additional evidence; Third party statement; Assessment record
• Section: 37(1); 145

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI A.N. PAHUJA, ACCOUNTANT MEMBER DATE OF HEARING : 31/3/2011 DRAFTED ON: 2/ 5/2011 1. ITA NO.2016/AHD/2008 F.Y. 2004-05 2. ITA NO.2426/AHD/2008 F.Y. 2005-06 ACIT CIRCLE-2 SURAT VS. M/S.T.M.PATEL EXPORTS 331/332, PARKING PROJECT SURAT TEXTILE MARKET RING ROAD SURAT PAN/GIR NO. : AACFT 0084 D ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI G.S. SURYAWANSI, D.R. RESPONDENT BY: SHRI S.N.SOPARKAR, A.R. O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : REVENUES APPEALS FOR AYS 2004-05 & 2005-06 ARE ARISING FROM THE ORDERS OF THE CIT(A)-II, SURAT RESPECTIVEL Y DATED 28/02/2008 AND 28/03/2008. FOR BOTH THE YEARS REV ENUE HAS RAISED IDENTICAL GROUNDS EXCEPT THE QUANTUM OF AGENTS COM MISSION WHICH IS A SUBJECT MATTER OF DISPUTE. REVENUES GROUND I S REPRODUCED BELOW:- EXTRACTED FROM A.Y.2004-05 [1] ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. LEARNED CIT(APPEALS) HAS ERRED IN DELETING THE ADDITION ON ACCOUNT OF DISALLOWANCE OF FOREIGN BUYERS ITA NOS.2016 & 2426/AHD/2008 ACIT VS. M/S. T.M.PATEL EXPORTS ASST.YEARS 2004-05 & 2005-06 - 2 - AGENT COMMISSION U/S.37(R.W.S.93) FOR RS.1,42,83,916/- (AY 2005-06 FOR RS.1,28,73,210/-) 2. FOR THE SAKE OF CONVENIENCE, FACTS IN BRIEF ARE REPRODUCED FROM THE LEAD ASSESSMENT YEAR, I.E. A.Y. 2004-05 AS APPEARING FROM THE ASSESSMENT ORDER PASSED U/S.143(3) R.W.S.147 DA TED 28/12/2006. THE ASSESSEE-FIRM IS ENGAGED IN EXPORT OF FABRICS/T EXTILE VIZ. ART SILK FABRICS. ON VERIFICATION OF INVOICES AND BANK CERT IFICATES, IT WAS NOTICED BY THE AO THAT A HUGE AMOUNT OF COMMISSION WAS APPEARING BUT IT WAS NOT PAID DIRECTLY BY THE ASSESSEE BUT TH E NET VALUE OF THE INVOICES WAS ACCOUNTED FOR IN THE BOOK OF ACCOUNT. CERTAIN QUERIES WERE RAISED TO KNOW THE RENDITION OF ANY SERVICE, I DENTITY OF THE AGENTS, PURPOSE BEHIND PAYMENT OF HUGE COMMISSION, ETC. A NOTICE U/S.133(4) OF THE ACT WAS ISSUED ASKING THE ASSESS EE TO ESTABLISH NAMES AND ADDRESSES OF ALL AGENTS, NATURE OF SERVIC ES RENDERED BY THE AGENTS, MODE OF PAYMENT TO THE AGENTS, PROOF OF REM ITTANCE, COPY OF AGREEMENT, CONFIRMATION LETTERS AND COPY OF STATEME NT OF FOREIGN CURRENT ACCOUNT MAINTAINED WITH THE AUTHORIZED DEAL ER OF R.B.I. SIMULTANEOUSLY, A STATEMENT U/S.131 OF THE MANAGING DIRECTOR OF THE FIRM HAS ALSO BEEN RECORDED. IN RESPONSE THE AUTH ORIZED DEALER OF THE BANK HAS INFORMED THAT THE ASSESSEE HAS NOT REM ITTED ANY AMOUNT OF COMMISSION FROM INDIA. THE AMOUNT WAS ACTUALLY DEDUCTED FROM THE BILL AMOUNT. IT WAS INFORMED THAT THE ASSESSEE S BANK HAD ONLY REALISED THE NET VALUE. IT HAS ALSO BEEN RECORDED BY THE AO THAT THE ASSESSEE HAS AFFIRMED IN A WRITTEN SUBMISSION THAT THE EXPORT ITA NOS.2016 & 2426/AHD/2008 ACIT VS. M/S. T.M.PATEL EXPORTS ASST.YEARS 2004-05 & 2005-06 - 3 - COMMISSION WAS DIRECTLY DEDUCTED BY THE PARTY TO W HOM THE EXPORT SALES WERE MADE. IT WAS ALSO SUBMITTED BY THE ASSE SSEE, AS NOTED BY THE AO, THAT THE SAID EXPORT COMMISSION PAID DIRE CTLY BY THE EXPORT BUYER AND THE ASSESSEE WAS NOT POSSESSING THE NAMES AND ADDRESSES OF THE COMMISSION AGENTS. 3. FROM THE SIDE OF THE ASSESSEE DETAILED SUBMISSIO NS WERE MADE AND IT WAS EMPHASISED THAT THE PAYMENT OF COMMISSIO N WAS IN THE NATURE OF DIVERSION OF INCOME BY OVERRIDING TERMS. IT WAS ARGUED THAT THE AMOUNT OF COMMISSION WAS NOT AT ALL RECEIV ED BY THE ASSESSEE, HENCE, THE INCOME TO THE EXTENT OF FOREIG N COMMISSION BEING DIVERTED AT THE SOURCE AND NEVER REACHED TO T HE ASSESSEE, THEREFORE, NOT TAXABLE IN ASSESSEES HAND. CASE-LA W WAS CITED WAS CIT VS. SHITALDAS TIRATHDAS REPORTED AT 41 ITR 367 (SC). THE AO HAS INVOKED THE PROVISIONS OF SECTION 145 OF I.T. A CT AND REJECTED THE BOOKS OF ACCOUNTS BY ASSIGNING THE REASON THAT THE ENTRIES PASSED BY THE ASSESSEE WERE BLATANTLY INCORRECT AND MISLEA DING. THE ASSESSEE HAS NOT SHOWN TOTAL SALES OF THE GROSS REC EIPTS AS PRESCRIBED U/S.44AB IN THE BOOKS OF ACCOUNT, THEREFORE, VIOLAT ED THE PROVISIONS OF THE ACT. THE AO HAS ALSO CITED SO MANY DECISIONS , THUS FINALLY NEGATED ALL THE ARGUMENTS OF THE ASSESSEE AND HELD THAT EVEN THE PAYMENT OF COMMISSION WAS NOT IN THE NATURE OF TRAD E DISCOUNT. HE HAS ALSO HELD THAT SINCE THE ASSESSEE HAS NOT ES TABLISHED THAT THE EXPENDITURE WAS WHOLLY AND EXCLUSIVELY FOR THE BUSI NESS OF THE ASSESSEE, THEREFORE, NOT AN ALLOWABLE EXPENDITURE U /S.37 OF THE I.T. ITA NOS.2016 & 2426/AHD/2008 ACIT VS. M/S. T.M.PATEL EXPORTS ASST.YEARS 2004-05 & 2005-06 - 4 - ACT. IN HIS OPINION, THE ACTION OF THE ASSESSEE WA S NOTHING BUT AVOIDANCE OF INCOME TAX AS PRESCRIBED U/S.93 OF I.T . ACT. IT WAS CONCLUDED THAT THE IMPUGNED AMOUNT OF COMMISSION WA S THE INCOME TAXABLE IN THE HANDS OF THE ASSESSEE, ACCORDINGLY F OR BOTH THE YEARS, RESPECTIVELY, THE ADDITIONS WERE MADE. BEING AGG RIEVED THE ISSUE WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY. 4. FROM THE SIDE OF THE ASSESSEE, CONFIRMATION LETT ER AND OTHER RELATED EVIDENCES WERE FILED BEFORE LD.CIT(A). O N ACCOUNT OF THOSE EVIDENCES A REMAND REPORT WAS CALLED FOR FROM THE A O. THE AO HAS OBJECTED THE FURNISHING OF FRESH EVIDENCES, SUC H AS, THREE CONFIRMATION LETTERS FROM THE FOREIGN BUYERS. THE AO HAS ALSO OBJECTED THAT THE ASSESSEE WAS NOT WILLING TO SUBMI T CERTAIN BASIC DETAILS TO PROVE THE GENUINENESS OF THE COMMISSION PAID. IN THE REMAND REPORT IT HAS ALSO BEEN CONTESTED THAT SINCE THE ASSESSEE HAS NOT PAID THE COMMISSION DIRECTLY TO THOSE AGENTS, B UT IT WAS PAID BY THE FOREIGN BUYERS, THEREFORE, SUCH AGENTS WERE THE AGENTS OF THE FOREIGN BUYERS AND NOT THE ASSESSEE. IF AT ALL THE Y HAVE RENDERED ANY SERVICE THAT WAS FOR THE BENEFIT OF FOREIGN BUYERS AND NOT FOR THE ASSESSEE. THE LD.CIT(A) WAS NOT CONVINCED WITH T HE ARGUMENTS RAISED FROM THE SIDE OF THE REVENUE AND CONCLUDED A S FOLLOWS:- 7. I HAVE CAREFULLY CONSIDERED THE ASSESSING OFFIC ER'S POINT OF VIEW AS CONTAINED IN THE ASSESSMENT ORDER AND TH E DETAILED REMAND REPORT. I HAVE ALSO GONE THROUGH THE VARI OUS WRITTEN SUBMISSIONS OF THE AR, ESPECIALLY HIS REBUTTAL OF T HE OBSERVATIONS OF THE AO IN THE REMAND REPORT. THE FIRST ISSUE ITA NOS.2016 & 2426/AHD/2008 ACIT VS. M/S. T.M.PATEL EXPORTS ASST.YEARS 2004-05 & 2005-06 - 5 - CONCERNS THE ADMISSION OF ADDITIONAL EVIDENCE. FRO M THE DETAILS FURNISHED BY THE AR, I FIND THAT THERE WERE 20 BUYERS AND 6 AGENTS . IN COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD FURNISHED CONFIRMATION LETTERS FROM 3 BUYERS AND 6 AGENTS WHILE PROVIDING NAMES AND ADDRESSES OF ALL THE BUYERS AND AGENTS. COPIES OF THESE CONFIRMATIONS H AVE ALSO BEEN FILED BY THE AR ALONG WITH HIS WRITTEN SUBMIS SIONS. I ALSO FIND THAT THESE CONFIRMATIONS WERE NOT TAKEN I NTO ACCOUNT BY THE AO. I HAVE GONE THROUGH COPIES OF SUCH CONF IRMATIONS. THE BUYERS HAVE CLEARLY CERTIFIED THAT THEY HAD PUR CHASED GOODS FROM THE ASSESSEE AND SUCH GOODS HAD BEEN PROCURED THROUGH THEIR AGENTS TO WHOM COMMISSION HAD BEEN PAID FOR THE SERVICES RENDERED. THE AGENTS HAD PROVIDED INFORMATION ABOUT THE OVERSEAS SUPPLIER AND THE PRODUCTS, HAD NEGOTIATED THE PRICE , THE QUALITY, THE DESIGNS AND PATTERS ETC. IT IS FURTHER CERTIFIED THAT THE COMMISSION HAD BEEN DEDUCTED FROM THE INVOICE VALUES AND ONLY THE NET AMOUNTS HAD BEEN RE MITTED TO THE SUPPLIER. ALL THE BUYERS HAVE PROVIDED THE NAMES OF THE AGENTS AND THE AMOUNTS PAID TO THEM. THE AGENTS WE RE MOHAMMED A.NAGDA OF DUBAI, HAMID OF AJMAN, R.G. GUL ANI OF DUBAI, S.Y. GODIL OF DUBAI, UMESHAN KUNDARAN OF BUR DUBAI AND JAIRAM DAILAMI ALSO OF BUR DUBAI. ALL TH ESE CERTIFICATES WERE FURNISHED BEFORE THE AO. THEY CL EARLY MENTION THE NATURE OF SERVICES RENDERED, THE NAME OF THE BUYER AND AS WELL AS THE SELLER. IT IS FURTHER MEN TIONED THAT THESE AGENTS BASICALLY SETTLED ALL MATTERS BETWEEN THE BUYER AND THE SELLER, AND AS PER THE TERMS OF SUCH TRANSA CTIONS, COMMISSION WAS PAYABLE BY THE BUYER AND WHICH WAS T O BE DEDUCTED FROM THE GROSS SELLING RATES. IT IS THESE CERTIFICATES FROM THE AGENTS WHOSE ADMISSION HAS BEEN STRONGLY O PPOSED BY THE AO. THE GROUND TAKEN BY THE AO CHALLENGING THE ADMISSION OF SUCH EVIDENCE IS THAT, THE ASSESSEES CASE DID NOT FALL UNDER ANY OF THE EXCEPTIONS PROVIDED UNDER RUL E 46A OF THE IT RULES. . ITA NOS.2016 & 2426/AHD/2008 ACIT VS. M/S. T.M.PATEL EXPORTS ASST.YEARS 2004-05 & 2005-06 - 6 - 7.2. HAVING ADMITTED SUCH ADDITIONAL EVIDENCE, I T BECOMES NECESSARY TO EXAMINE THE OBSERVATIONS OF THE AO WI TH REGARD TO SUCH EVIDENCE. IT IS THE OBSERVATION OF THE AO THAT THE CONFIRMATION LETTERS FURNISHED BY THE AGENTS DO NOT INDICATE AS TO WHOM ACTUAL SERVICES HAD BEEN RENDERED. IN FACT NO SERVICE WAS RENDERED TO THE ASSESSEE. IT IS THE VIEW OF TH E AO THAT THE SERVICES, IF ANY RENDERED BY THE AGENTS, WAS TO THE BUYERS. ON HIS PART, THE AO HAD WRITTEN LETTERS TO ALL THE AG ENTS. ACCORDING TO HIM, NO ONE REPLIED. I FIND A CONTRAD ICTION HERE. WHILE ON ONE HAND, HE SAYS IN THE REMAND REPORT THA T SINCE THE AGENTS WERE LOCATED ABROAD, HE DIDNT HAVE ANY POWE R UNDER THE I.T. ACT TO VERIFY THE GENUINENESS OF THE CERTI FICATES ISSUED BY THE AGENTS AND THE BUYERS, ON THE OTHER HAND, HE HIMSELF AND WRITTEN TO ALL SUCH AGENTS, AND HAS PLACED STRO NG RELIANCE ON THE FACT THAT NONE OF THEM HAD REPLIED LEADING T O THEIR AUTHENTICITY BEING DOUBTED. ACCORDING TO THE A.R, THE LETTERS DIDNT REACH THE AGENTS SINCE THE A.O. DIDNT MENTI ON THE P.O.BOX NOS. WHICH IS A MUST IN THE UAE. I HAVE CH ECKED THE ASSESSMENT RECORDS. OF THE 6 AGENTS TO WHOM THE AO HAD WRITTEN LETTERS IN COURSE OF THE REMAND PROCEEDINGS , ONE OF THEM, M/S.HAMID OF AJMAN, UAE HAD RESPONDED TO THE AO'S LETTER AND HAD CONFIRMED THE RENDERING OF SERVICES AND THE RECEIPT OF EXPORT COMMISSION. THE LETTERS TO THE R EMAINING 5 AGENTS HAD COME BACK UNSERVED WITH THE RUBBER STAMP OF THE POSTAL AUTHORITIES AT DUBAI STATING INCOMPLETE ADD RESS. THE AO HAD ALSO WRITTEN TO SOME OF THE BUYERS. FROM T HE ASSESSMENT RECORDS, I FIND THAT AL MALIK TEXTILES A ND ABU HAMAD GENERAL TRADING CO. LLC, BOTH OF DUBAI HAD RESPONDED TO THE AO'S LETTER. THESE FACTS CLEARLY SHOW THAT PRIMA FACIE ATLEAST, BOTH THE BUYERS AND THE AGENTS ACTUALLY EXISTED AND SECONDLY, THE AGENTS HAD RENDERED SERVI CES AND THIRDLY, THE COMMISSION PAYMENTS HAD BEEN RECEIVED BY THEM. THEREFORE, THERE WAS NO SCOPE FOR THE AO TO TREAT T HE CONFIRMATIONS FURNISHED BY THE ASSESSEE AS EITHER N ON-GENUINE OR BOGUS, AND CONSEQUENTLY, HE WAS NOT IN THE POSIT ION TO REJECT ANY OF THEM. . ITA NOS.2016 & 2426/AHD/2008 ACIT VS. M/S. T.M.PATEL EXPORTS ASST.YEARS 2004-05 & 2005-06 - 7 - . 7.6. FURTHER, IT HAS BEEN NOTED BY THE AGENTS IN T HE CONFIRMATION LETTERS THAT COMMISSION WAS PAYABLE TO THEM BY THE BUYER AND SUCH SUMS WERE TO BE DEDUCTED FROM TH E GROSS INVOICE VALUES SO THAT THE SELLER WAS ENTITLED TO R ECEIVE ONLY THE NET AMOUNT AFTER DEDUCTING THE COMMISSION IN RE SPECT OF EACH TRANSACTION. THIS ASPECT ALSO HAD BEEN CONFIR MED BY THE BUYERS CONFIRMATIONS SUBMITTED BEFORE THE AO IN C OURSE OF THE ASSESSMENT PROCEEDINGS. THEREFORE, THE RECEIPT OF THE COMMISSION AMOUNT HAD BEEN DULY CONFIRMED BY THE AG ENTS, WHICH IN TURN MEANT THAT THE AMOUNTS WHICH WERE DED UCTED FORM THE INVOICE VALUES ON THE INSISTENCE OF THE BU YERS, ACTUALLY REPRESENTED COMMISSION PAYMENTS, WHICH FIN ALLY FOUND THEIR WAY INTO THE HANDS OF THE AGENTS. THIS FACT CLEARLY ESTABLISHED THE GENUINENESS OF THE TRANSACTIONS. W HAT IS IMPORTANT TO NOTE IS THAT, THIS WAS DONE IN ACCORDA NCE WITH THE TERMS AND CONDITIONS AGREED UPON BETWEEN THE BUYERS AND SELLER, EVEN THOUGH THERE WAS NO FORMAL AGREEMENT. IN ANY CASE, WHEN BOTH THE BUYERS AND THE AGENTS HAD UNEQU IVOCALLY CONFIRMED AND RECONFIRMED THE NATURE OF THE TRANSAC TIONS, THE ABSENCE OF ANY FORMAL AGREEMENT COULD NOT BE HELD A S A GROUND TO DISMISS THE CLAIM OF THE ASSESSEE. THER E WERE CLEAR CONTRA CONFIRMATIONS FROM THE AGENTS AND THE BUYERS , WHICH SIMPLY COULD NOT BE WISHED AWAY BY THE AO FOR THE SAKE OF DISALLOWING THE COMMISSION EXPENDITURE. 4.1. THE LD.CIT(A) HAS, THEREFORE, CONCLUDED THAT O NE OF THE PRINCIPLES LAID DOWN BY THE HONBLE SUPREME COURT I N THE CASE OF STATE BANK OF TRAVANCORE 158 ITR 102 AND SITALDAS T IRATHDAS 41 ITR 367 WAS THAT IF THERE IS ANY DIVERSION OF INCOM E AT SOURCE UNDER ANY STATUTE OR DIVERSION OF INCOME BY OVERRIDING TI TLE, THEN THERE IS ITA NOS.2016 & 2426/AHD/2008 ACIT VS. M/S. T.M.PATEL EXPORTS ASST.YEARS 2004-05 & 2005-06 - 8 - NO INCOME TO THE ASSESSEE. AS PER LD.CIT(A) THE G ROSS EXPORT PROCEEDS AS PER INVOICE HAVE NEVER REACHED IN THE H ANDS OF THE ASSESSEE. AFTER DISCUSSING SEVERAL CASE LAWS AND THE PROVISIONS OF I.T. ACT, THE LD.CIT(A) HAS CONCLUDED THAT THERE WA S NO BASIS TO ADD THE IMPUGNED AMOUNT WHICH WAS ALREADY DEDUCTED FROM THE EXPORT INVOICE. 5. FROM THE SIDE OF THE REVENUE, LD.DR MR. G.S. SOU RYAWANSI APPEARED AND SUPPORTED THE VIEW TAKEN BY THE A.O. IT WAS EMPHASISED THAT THE PROVISIONS OF SECTION 145 HAVE BEEN CORRECTLY INVOKED BY THE AO BECAUSE THE METHOD OF ACCOUNTING WAS DEFECTIVE. THE CORRECT INCOME OF THE ASSESSEE COULD NOT BE DED UCED BY SUCH IRREGULAR METHOD OF ACCOUNTING BECAUSE THE ASSESSEE HAS NOT SHOWN IN ITS BOOKS OF ACCOUNTS THE TOTAL GROSS RECEIPTS. LD.DR HAS ALSO ARGUED THAT NEITHER IT WAS A COMMISSION ON SALE OR IT WAS TRADE DISCOUNT. HE HAS POINTED OUT THAT THE FOREIGN BUYE RS OF THE ASSESSEE HAVE PAID THE IMPUGNED AMOUNT TO THE AGENTS, BUT TH AT TOO WAS NOT PROVED BY THE ASSESSEE. WHEN THE ASSESSEE WAS ASKE D TO EXPLAIN THE NATURE OF SERVICES RENDERED AND TO GIVE THE ADDRESS ES OF THOSE AGENTS, THEN THE ASSESSEE HAS EXPRESSED ITS INABILITY BECAU SE THE PAYMENT WAS MADE BY THE FOREIGN BUYERS. IT WAS PLEADED TH AT THE ASSESSMENT ORDER BE CONFIRMED. ITA NOS.2016 & 2426/AHD/2008 ACIT VS. M/S. T.M.PATEL EXPORTS ASST.YEARS 2004-05 & 2005-06 - 9 - 6. FROM THE SIDE OF THE RESPONDENT-ASSESSEE LD.AR M R. S.N.SOPARKAR APPEARED AND PLACED RELIANCE ON THE FO LLOWING DECISIONS:- SL.NO(S) DECISION IN THE CASE OF IN ITA NO(S). 1. SHRI SAMIR A BATRA VS.ITO 4130/AHD/2007 A.Y. 2004-05 ITAT AHMEDABAD BENCH C ORDER DATED 12/12/2008 2. M/S.JHAWAR BIO TECH PVT.LTD. VS. DCIT 3464/AHD/2008 A.Y. 2005-06 ITAT AHMEDABAD BENCH D ORDER DATED 21/08/2009 3. CIT VS. ATMA PRAKASH BATRA TAX APPEAL NO.838 OF 2009, GUJARAT HIGH COURT ORDER DATED 21/12/2010 4. SHRI SANJAY JAIN VS. DCIT ITA NO.1533/AHD/2008 A.Y. 2004-05 ORDER DATED 16/12/2009 5. NARENDRA D.MODH VS. ACIT ITA NO.453/AHD/2009 A.Y.2005-06 ORDER DATED 11/5/2010 6. SUPREME (INDIA) IMPEX LTD.. ASST.CIT ITA NO.673/AHD/2008 A.Y. 2004-05 ORDER DATED 13/08/2010 ITA NOS.2016 & 2426/AHD/2008 ACIT VS. M/S. T.M.PATEL EXPORTS ASST.YEARS 2004-05 & 2005-06 - 10 - 7. THOUGH, AT THE OUTSET, LD.AR MR.S.N.SOPARKAR HAS REMARKED THAT THE ISSUE AS RAISED BY THE REVENUE NOW STOOD C OVERED BY FEW DECISIONS OF THE TRIBUNAL AS ALSO BY A DECISION OF HONBLE OF JURISDICTIONAL HIGH COURT BUT CONSIDERING THE QUANT UM AND THE NATURE OF DISPUTE WE HAVE THOUGHT IT PROPER TO BRIE FLY NARRATE THE FACTS OF THE CASE AND SPECIALLY THE BASIS ON WHICH THE AO HAS MADE THE ADDITION. IN THE ABOVE PARAGRAPHS THEREFORE WE HAVE MADE SUCH AN ENDEAVOUR. AT THIS JUNCTURE IT IS ALSO WORTH TO MENTION THAT IN A LATEST DECISION ITAT D BENCH IN THE CASE OF M/S.J .B. EXPORTS BEARING ITA NO.3206/AHD/2007 FOR AY 2004-05 VIDE OR DER DATED 29/04/2011 (ONE OF US, I.E. JM IS THE PARTY) HAS HE LD AS UNDER: 6. AFTER HEARING THE PLEADINGS OF BOTH THE SIDES, PRESENTLY THE POSITION IS THAT THE CONTENTIONS OF THE REVENUE HAV E DULY BEEN CONSIDERED AND DEALT WITH BY THE HONBLE JURISDICTI ONAL HIGH COURT IN THE CASE OF ATMA PRAKASH BATRA IN TAX APPEAL NO.838 OF 2009 DATED 21/12/2010, WHEREIN THE FACTS WERE DISCUSSED VIDE PARA-13 OF THE JUDGEMENT; REPRODUCED BELOW:- 13. IN RELATION TO PROPOSED QUESTION NO.2, WHICH RELATES TO DELETION OF DISALLOWANCE OF CLAIM OF EXPORT COMMISS ION IN THE SUM OF RS.3,83,37,678/-, DURING THE ASSESSMENT PROC EEDINGS, FROM THE COPIES OF THE INVOICES FILED BY THE ASSESS EE, THE ASSESSING OFFICER FOUND THAT IN EXPORT SALE INVOICE S, THERE WAS A DEDUCTION UNDER THE HEAD COMMISSION OF 11.5% OR 1 2% AND AFTER DEDUCTING THE SAID AMOUNT, NET FIGURE OF SALE WAS WORKED OUT. THE TOTAL AMOUNT OF NET SALES WAS RS.28,74,85 ,387/, BUT AS PER ACCOUNTING STANDARDS, THE AMOUNT OF EXPORT COMM ISSION SHOULD HAVE BEEN REFLECTED ON THE CREDIT SIDE BY SH OWING GROSS SALES MINUS COMMISSION AND THE NET SALES WOULD BE I N AS OUTER COLUMN ON THE CREDIT SIDE OF THE MANUFACTURING ACCO UNT. THE ASSESSEE ALSO DID NOT FURNISH ANY AGREEMENT FOR PAY MENT SUCH COMMISSION NOR DID IT FILE ANY PROOF OF SUCH REMITT ANCE ROUTED THROUGH THE RESERVE BANK OF INDIA (RBI). THE FOREIGN AGENTS ITA NOS.2016 & 2426/AHD/2008 ACIT VS. M/S. T.M.PATEL EXPORTS ASST.YEARS 2004-05 & 2005-06 - 11 - COMMISSION WAS ALLOWABLE UPTO 12% UNDER THE CENTRAL EXCISE & CUSTOMS RULES, WHILE GIVING DEPB BENEFIT, BUT THE S AME WAS REQUIRED TO BE PROVED BEYOND DOUBT AS REQUIRED BY T HE RBI GUIDELINES. FURTHER THE ASSESSEE RECEIVED PAYMENT FROM FOREIGN BUYERS AFTER SIX MONTHS AND THE ASSESSEE COULD NOT TAKE THE PLEA THAT THE FOREIGN AGENTS RECEIVED PAYMENT OF COMMISS ION DIRECTLY FROM THE BUYER, SINCE UNLESS THERE WAS A DUE FOR MA KING PAYMENT FOR PURCHASE, NO AMOUNT OF COMMISSION WOULD BECOME PAYABLE AND NO ONE WOULD PAY SUCH COMMISSION IN ADVANCE. T HE ASSESSING OFFICER FURTHER OBSERVED THAT NAMES AND A DDRESSES OF FOREIGN AGENTS DID NOT CONFIRM THE ACTUAL PAYMENT A ND THEREFORE, DISALLOWED THE CLAIM OF COMMISSION. 6.1. THE HONBLE COURT HAS ALSO DISCUSSED THE FINDINGS OF TH E TRIBUNAL IN THE FOLLOWING MANNER:- 20. THE TRIBUNAL AFTER CONSIDERING THE RIVAL SUBMI SSIONS AND AFTER APPRECIATING THE EVIDENCE ON RECORD FOUND THA T THE RECEIPT OF COMMISSION AMOUNT HAD BEEN DULY CONFIRMED BY THE AGENTS WHICH IN TURN MEANT THAT THE AMOUNT WHICH HAD BEEN DEDUCTED FROM THE INVOICE VALUE ACTUALLY REPRESENTED COMMISS ION PAYMENTS WHICH WERE FINALLY RECEIVED BY THE AGENT. THIS HAD BEEN DONE IN ACCORDANCE WITH THE TERMS AND CONDITIO NS AGREED UPON BETWEEN THE BUYERS AND THE SELLER, EVEN THOUGH THERE WAS NO FORMAL AGREEMENT. THE AGENTS HAD UNEQUIVOCALLY CONFIRMED AND RECONFIRMED THE NATURE OF THE TRANSACTIONS AND THAT THE ABSENCE OF ANY FORMAL AGREEMENT COULD NOT BE HELD T O BE A GROUND TO DISMISS THE CLAIM OF THE ASSESSEE. THERE WERE CLEAR CONTRA CONFIRMATIONS FROM THE AGENTS. THUS, ONCE T HE GENUINENESS OF THE COMMISSION AS WELL AS ITS JUSTIF ICATION OF HAVING BEEN WHOLLY AND EXCLUSIVELY INCURRED FOR THE PURPOSE OF ASSESSEES BUSINESS WAS ESTABLISHED, THE SAME BECOM ES ADMISSIBLE AS DEDUCTION UNDER SECTION 37(1) OF THE ACT. THE TRIBUNAL WAS OF THE VIEW THAT IT COULD NOT BE HELD THAT THE GROSS INVOICE AMOUNTS WERE WHAT HAD ACCRUED TO THE ASSESS EE, AND THAT THESE WERE THE AMOUNTS ON WHICH THE ASSESSEE SHOULD HAVE BEEN ASSESSED. ACCORDING TO THE TRIBUNAL, THE OUTGOING COMMISSION FROM THE INVOICE VALUES WOULD HAVE TO BE REDUCED FR OM THE GROSS AMOUNTS, AND THE NET AMOUNT WHICH WAS THE ACTUAL SU M RECEIVED BY THE ASSESSEE IN INDIA, AND WHICH WAS DULY CERTIF IED AND ITA NOS.2016 & 2426/AHD/2008 ACIT VS. M/S. T.M.PATEL EXPORTS ASST.YEARS 2004-05 & 2005-06 - 12 - PERMITTED BY THE RBI AND ITS AUTHORIZED DEALER, WAS WHAT HAD BEEN EARNED BY THE ASSESSEE FROM SUCH TRANSACTIONS. THE TRIBUNAL FURTHER FOUND THAT THE COMMISSION WAS NOT DEDUCTED FROM THE EXPORT INVOICES IN AN AD HOC MANNER AND IT WAS CLEARLY UNDER AN AGREEMENT BETWEEN THE BUYER AND THE SELLER , AS ALSO BETWEEN THE BUYER AND THE AGENT. CONSEQUENTLY, THE ASSESSEE WAS UNDER AN OBLIGATION TO DEDUCT COMMISSION FROM T HE GROSS INVOICE VALUE. IN THE PRESENT CASE, THERE WAS A CO MPULSION TO DEDUCT THE COMMISSION FROM THE EXPORT INVOICES WHIC H WAS CLEARLY INDICATED IN THE CONFIRMATION LETTERS OF TH E AGENTS, AND THAT THE INGREDIENTS WHICH WERE NECESSARY FOR SUCH DEDUCTION OF COMMISSION TO BE TREATED AS DIVERSION OF INCOME BY OVER RIDING TITLE WAS CLEARLY PRESENT. IT WAS FURTHER FOUND TH AT IN THE PRESENT CASE, THE GROSS EXPORT PROCEEDS NEVER REACHED THE A SSESSEE, NO SUCH INCOME HAD THEREFORE ACCRUED TO THE ASSESSEE A ND THIS WAS BECAUSE OF AN OBLIGATION OR COMPULSION TO DEDUCT TH E COMMISSION FROM THE EXPORT INVOICES WHICH CLEARLY SHOWED THIS TO BE A CASE OF DIVERSION OF INCOME BY OVERRIDING TITLE. THE AM OUNTS DEDUCTED FROM THE EXPORT INVOICES WERE THUS CLEARLY ALLOWABL E AS DEDUCTION. 6.2. THE HONBLE COURT HAS, THEREAFTER, PRONOUNCED THE JUDGMENT VIDE PARA-21 AND ALLOWED THE APPEAL IN FAVOUR OF T HE ASSESSEE; REPRODUCED BELOW:- 21. AS REGARDS THE FINDINGS OF THE LOWER AUTHORI TIES THAT THE CONFIRMATIONS ISSUED BY THE PARTIES WERE ON PLAIN P APER, THE TRIBUNAL AFTER APPRECIATING THE EVIDENCE ON RECORD HAS FOUND THAT EXCEPT ONE PARTY, NAMELY, MOHMED ABDULLA OF DU BAI, ALL OTHER COMMUNICATIONS WERE ON LETTER HEADS OF THE RE SPECTIVE PARTIES. IT WAS FURTHER FOUND THAT NONE OF THE PAY MENTS HAD COME BEYOND SIX MONTHS, BUT THE SAME WERE WITHIN SIX MON THS AS COULD BE VERIFIABLE FROM BANK REALIZATION CERTIFICATES EN CLOSED ANNEXED IN THE PAPER BOOK. THE TRIBUNAL RECORDED THAT EACH OF THE TRANSACTIONS BETWEEN THE ASSESSEE AS THE SELLER AND THE TWO BUYERS WERE MEDIATED BY AGENTS, WHOSE EXISTENCE3 WA S ESTABLISHED BEYOND DOUBT, BY THE CONFIRMATION LETTERS. SECONDLY, THERE WAS TENDERING OF SERVICES. THE AGENTS HAD CL EARLY WRITTEN THAT THEY HAD RENDERED SERVICES; IN PROCURING SAMPL ES, DECIDING THE ORDERS AND SETTLING ALL MATTERS BETWEEN THE BUY ERS AND SELLER INCLUDING PAYMENTS BY THE BUYERS TO THE SELLER. TH E EXISTENCE OF ITA NOS.2016 & 2426/AHD/2008 ACIT VS. M/S. T.M.PATEL EXPORTS ASST.YEARS 2004-05 & 2005-06 - 13 - THE AGENTS AND THEIR FUNCTIONING WAS FOR THE BENEFI T OF THE ASSESSEE AS WELL. THE TRIBUNAL, ACCORDINGLY, WAS OF THE VIEW THAT THE CLAIM OF THE ASSESSEE TOWARDS COMMISSION P AYMENT DESERVES TO BE ALLOWED. 7. OUR ATTENTION HAS ALSO BEEN DRAWN ON THE JUDGEME NT OF RESPECTED CO-ORDINATE BENCH A AHMEDABAD PRONOUNCE D IN THE CASE OF SHRI SANJAY JAIN BEARING ITA NO.1533/AHD/2008 FOR AY 2004-05 ORDER DATED 16/12/2009, WHEREIN FACTS WERE THAT THE ASSESSEE HAD ACCOUNTED THE EXPORT SALES TURNOVER AT THE NET FIGURE BUT ALSO CLAIMED DEPB BENEFIT ON THE GROSS AMOUNT O F TURNOVER. THE EXPLANATION OF THE ASSESSEE IN THAT DECISION WA S ALSO IN THE LIKE MANNER THAT DISCOUNT WAS GIVEN TO FOREIGN BUYER BY WAY OF COMMISSION BY DIRECTLY REDUCING FROM THE SALE INVOI CE. IT WAS CLAIMED THAT THE SAID METHOD WAS ADOPTED IN THE LIG HT OF THE REGULATIONS OF THE RBI. IT WAS PLEADED THAT THE EXPORT & IMPORT POLICY AND THE RBI REGULATIONS APPROVED THIS METHOD . IN THAT CASE, THE TRIBUNAL HAS GIVEN A FINDING THAT THERE WAS NO DISPUTE REGARDING THE FACT THAT THE ASSESSEE HAS GIVEN COMM ISSION/DISCOUNT IN THE EXPORT INVOICES ITSELF IN FAVOUR OF THE FORE IGN BUYER. THERE WAS A CONFIRMATION FROM THE SIDE OF THE FOREIGN BUY ER THAT THE SAID DISCOUNT WOULD BE DISTRIBUTED BY HIM TO THE INTENDI NG AGENTS ABROAD. AN ANOTHER FACT HAS ALSO BEEN ACKNOWLEDG ED THAT THE ASSESSEE HAS RECEIVED ONLY THE NET AMOUNT AS THE EX PORT PROCEEDS BY WAY OF CONVERTIBLE FOREIGN EXCHANGE. THE TRIBUN AL BENCH HAS ALSO EXPRESSED THAT WHEN THE INCOME ITSELF WAS NOT GENERATED, THERE WAS NO QUESTION OF SUCH INCOME BECOMING ACCRU ED OR DUE. WHEN THE FACTUM OF ACTUAL RECEIPT OF SALE PROCEEDS TO THE EXTENT OF NET INVOICE AMOUNT WAS ESTABLISHED BEYOND ANY DO UBT, THERE WAS NO JUSTIFICATION IN OVERLOOKING UPON THOSE SPEA KING FACTS ON THE TECHNICAL GROUND THAT THE ASSESSEE HAS CLAIMED DEPB BENEFIT ON THE GROSS AMOUNT OF INVOICE. IT WAS CONCLUDED THAT THE REVENUE HAS NO CASE TO HOLD THAT THE ASSESSEE HAS E ARNED THE IMPUGNED ADDITIONAL INCOME. 8. BEFORE US, THE ORDER OF THE TRIBUNAL IN THE CASE OF SAMIR BATRA AND ATMA PRAKASH BATRA HAS ALSO BEEN CITED WHICH HAS BEEN CONFIRMED BY THE HONBLE HIGH COURT. SOME OF THE OBSERVATIONS OF THE TRIBUNAL ARE ALSO WORTH TO REPR ODUCTION. ITA NOS.2016 & 2426/AHD/2008 ACIT VS. M/S. T.M.PATEL EXPORTS ASST.YEARS 2004-05 & 2005-06 - 14 - 25. THE OUTGOING COMMISSION FROM THE INVOICE VALUES WOULD HAVE TO BE REDUCED FROM THE GROSS AMOUNTS AND THE NET AMOUNT WHICH WAS THE ACTUAL SUM RECEIVED BY THE ASS ESSEE IN INDIA, AND WHICH WAS DULY CERTIFIED AND PERMITTED B Y THE RBI AND ITS AUTHORIZED DEALER WAS WHAT HAD BEEN EARNED BY T HE ASSESSEE FROM SUCH TRANSACTIONS. WE FIND THAT THE AO HIMSE LF HAD NOTED IN THE ASSESSMENT ORDER THAT THE AMOUNTS DEDUCTED A S COMMISSION FROM THE SALE INVOICES WERE NEITHER RECE IVED BY THE ASSESSEE DURING THE YEAR NOR WAS IT EVER GOING TO B E RECEIVED IN FUTURE. IF THIS WAS THE VIEW OF THE AO, THEN HE CO NTRADICTED HIMSELF BY TAXING AMOUNTS WHICH HAD NOT BEEN RECEIV ED AT ALL, NOR DID THE ASSESSEE HAVE ANY LEGAL RIGHT TO RECEIV E SUCH AMOUNTS. 26. WE FIND THAT THE COMMISSION WAS NOT DEDUCTED FROM THE EXPORT INVOICES IN AN ADHOC MANNER AND IT WAS CLEARLY UNDER AN AGREEMENT BETWEEN THE BUYER AND THE SELLER, AS ALSO BETWEEN T HE BUYER AND THE AGENT. CONSEQUENTLY, THE ASSESSEE WA S UNDER AN OBLIGATION TO DEDUCT COMMISSION FROM THE GROSS INVO ICE VALUES IN THE PRESENT CASE, THERE WAS A COMPULSION TO DEDUCT THE COMMISSION FROM THE EXPORT INVOICES WHICH WAS CLEAR LY INDICATED IN THE CONFIRMATION LETTERS OF THE AGENTS, THE INGR EDIENTS WHICH WERE NECESSARY FOR SUCH DEDUCTION OF COMMISSION TO BE TREATED AS DIVERSION OF INCOME BY OVERRIDING TITLE WAS CLEA RLY PRESENT. IN THE CASE OF CIT V. MADRAS RACE CLUB (2002) 255 ITR 98, THE HON.COURT OBSERVED THAT IN ORDER TO DECIDE WHETHER THERE HAS BEEN DIVERSION OF INCOME BY OVERRIDING TITLE THE TR UE TEST IS WHETHER THE AMOUNT SOUGHT TO BE DEDUCTED, IN TRUTH, NEVER REACH THE ASSESSEE AS HIS INCOME. WHEREBY AN OBLIGATION INCOME IS DIVERTED BEFORE IT REACHES THE ASSESSEE. IT IS DEDUCTIBLE BUT WHERE THE INCOME IS REQUIRED TO BE APPLIED TO D ISCHARGE AN OBLIGATION AFTER SUCH INCOME REACHES THE ASSESSEE, THE SAME CONSEQUENCE IN LAW DOES NOT FOLLOW IN THE PRESENT C ASE THE GROSS EXPORT PROCEEDS NEVER REACHED ITS HANDS, NO SUCH IN COME HAD THEREFORE ACCRUED TO THE ASSESSEE AND THIS WAS BECA USE OF AN OBLIGATION OR COMPULSION TO DEDUCT THE COMMISSION F ROM THE EXPORT INVOICES WHICH CLEARLY SHOWED THIS TO BE A C ASE OF DIVERSION OF INCOME BY OVERRIDING TITLE. THE AMOUN TS DEDUCTED FROM THE EXPORT INVOICES WERE THUS CLEARLY ALLOWABL E AS DEDUCTION. . ITA NOS.2016 & 2426/AHD/2008 ACIT VS. M/S. T.M.PATEL EXPORTS ASST.YEARS 2004-05 & 2005-06 - 15 - . 27. FIRSTLY, EACH OF THE TRANSACTIONS BETWEEN THE ASSESSEE AS THE SELLER AND THE TWO BUYERS WERE MEDIATED BY A GENTS, WHOLE EXISTENCE WAS ESTABLISHED BEYOND DOUBT BY THE CONFI RMATION LETTERS. SECONDLY, THERE WAS RENDERING OF SERVICES . THE AGENT HAD CLEARLY WRITTEN THAT THEY HAVE RENDERED SERVICE S IN PROCURING SAMPLES DECIDING THE ORDERS AND SETTLING ALL MATTER S BETWEEN THE BUYERS AND SELLER INCLUDING PAYMENTS BY THE BUYERS TO THE SELLER. CONSIDERING THE NATURE OF SUCH SERVICES RENDERED BY THE AGENTS EVEN IF THEY WERE APPOINTED BY THE BUYERS, SERVICES WERE INDIRECTLY RENDERED TO THE ASSESSEE AS THE SELLERS WELL. THE SAMPLES WERE PRODUCED BY THEM FROM THE ASSESSEE. T HEY DECIDED ON THE QUANTUM OF THE ORDER AND THE PRICE, THEY SET TLED ALL DISPUTES BETWEEN THE BUYERS AND THE SELLER AND THEY ALSO ENSURED THE PAYMENTS TO THE SELLER. THE EXISTENCE OF THE A GENTS AND THEIR FUNCTIONING WAS FOR THE BENEFIT OF THE ASSESSEE AS WELL. THEREFORE, THE EVIDENCE PRODUCED BY THE ASSESSEE CA NNOT BE WISHED AWAY ON THE GROUND THAT THE AGENTS ONLY PROV IDED SERVICES TO THE BUYER AND NOT TO THE ASSESSEE. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW T HAT THE COMMISSION PAYMENT IS TO BE ALLOWED TO THE ASSESSEE AND ACCORDINGLY, WE ALLOW THE CLAIM OF THE ASSESSEE, AN D THE ORDERS OF THE LOWER AUTHORITIES ARE REVERED. THIS ISSUE O F THE ASSESSEES APPEAL IS ALLOWED. 9. THERE IS ONE MORE DECISION OF THE TRIBUNAL D B ENCH AHMEDABAD IN THE CASE OF M/S.JAWAHAR BIO-TECH PVT.LTD.(SUPRA), WHEREIN A VIEW WAS TAKEN IN FAVOUR OF ASSESSEE VIDE FOLLOWING PARAGRAPHS:- 8. IN THE CASE UNDER CONSIDERATION, THERE IS NOTHI NG TO SUGGEST THAT THE AMOUNTS DEDUCTED AS COMMISSION FRO M THE SALE INVOICES WERE EITHER RECEIVED BY THE ASSESSEE DURIN G THE YEAR OR EVEN SUBSEQUENTLY NOR THE ASSESSEE HAS ANY LEGAL RI GHT TO RECEIVE SUCH AMOUNTS. THE AMOUNT HAS BEEN DEDUCTED UNDER A N ARRANGEMENT BETWEEN THE BUYERS AND THE ASSESSEE. T HUS, THE GROSS EXPORT PROCEEDS MENTIONED IN THE INVOICES NEV ER REACHED THE ASSESSEE NOR IT WAS INTENDED SO. THEREFORE, TH E AMOUNT ITA NOS.2016 & 2426/AHD/2008 ACIT VS. M/S. T.M.PATEL EXPORTS ASST.YEARS 2004-05 & 2005-06 - 16 - EQUIVALENT TO COMMISSION DEDUCTED HAD NEVER ACCRUED TO THE ASSESSEE AND THIS WAS BECAUSE OF AN OBLIGATION OR C OMMISSION TO DEDUCT THE COMMISSION FORM THE AMOUNT INVOICED WHIL E EXPORTING THE GOODS. 9. IN VIEW OF THE FOREGOING, ESPECIALLY WHEN A SIMI LAR CLAIM IN RESPECT OF COMMISSION IN THE PRECEDING ASSESSMEN T YEAR HAS BEEN ALLOWED BY THE AO HIMSELF AND THE EXPORT PRIC ES WERE DETERMINED WITH THE BUYERS IN CONSEQUENCE OF AN ARR ANGEMENT OF DEDUCTION OF COMMISSION PAYABLE BY THE FOREIGN BUYE RS TO THE FOREIGN AGENT FORM THE SALES INVOICES, WE ARE OF TH E OPINION THAT THERE WAS NO JUSTIFICATION FOR THE DISALLOWANCE OF THE AFORESAID AMOUNT OF COMMISSION. THEREFORE, GROUND NO.1 IS AL LOWED. 10. AS OBSERVED IN THE BEGINNING ITSELF THE ISSUE A PPEARS TO BE SQUARELY COVERED BY THE FOREGOING DECISIONS AND ON ALMOST IDENTICAL FACTS THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE. RESULTANTLY, IN THE LIGHT OF THE FOREGOING DISCUSSI ON, ON FACTS AND LAW, WE HEREBY HOLD THAT THE ISSUE IS COVERED IN FA VOUR OF THE ASSESSEE AND, HENCE, THE ASSESSEE IS ENTITLED FOR T HE CLAIM AND THE REVENUE DEPARTMENT HAD GONE WRONG IN HOLDING THAT T HERE WAS SUPPRESSION OF SALES ON THE PRESENT FACTS AND CIRCU MSTANCES OF THE CASE. GROUNDS ALLOWED. 7.1. FROM THE ABOVE REPRODUCTION, THEREFORE, IT IS EVIDENT THAT THE IDENTICAL ISSUE HAS ALREADY BEEN DECIDED IN FAVOUR OF ASSESSEE. IT IS ALSO WORTH TO MENTION THAT THE DECISION AS CITED A BOVE OF ITAT D BENCH AHMEDABAD OF M/S.JAWAHAR BIO-TECH PVT.LTD. AY 2005-06 ITA NO.3464/AHD/2008 ORDER DATED 21/08/2009 HAS BEE N AUTHORED BY MY ESTEEMED COLLEAGUE AND THAT ORDER HAS ALSO BE EN FOLLOWED IN SUBSEQUENT APPEALS BY THIS AHMEDABAD BENCH. HENCE THE RESULT IS ITA NOS.2016 & 2426/AHD/2008 ACIT VS. M/S. T.M.PATEL EXPORTS ASST.YEARS 2004-05 & 2005-06 - 17 - THAT CONSIDERING THE ENTIRETY OF THE CIRCUMSTANCES AND THE VIEW ALREADY TAKEN BY SEVERAL CO-ORDINATE BENCHES AS ALS O BY THE HONBLE JURISDICTIONAL HIGH COURT, JUDICIAL PROPRIETY REQU IRES TO FOLLOW THOSE PRECEDENTS SPECIALLY WHEN THOSE JUDGEMENTS ARE ON I DENTICAL FACTS. RATHER WE FIND NO REASON TO ADOPT ANY OTHER VIEW BU T TO FOLLOW THE VIEW ALREADY TAKEN AS REPRODUCED HEREINABOVE. REVE NUES GROUND FOR BOTH THE YEARS IS, THEREFORE, DISMISSED. 8. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 4/5/2011. SD/- SD/- ( A.N. PAHUJA ) ( MU KUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBE R AHMEDABAD; DATED 04 / 05 /2011 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED. 4. THE LD. CIT(APPEALS)-II, SURAT 5. THE DR, AHMEDABAD BENCH 6. THE GUARD F ILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD 1. DATE OF DICTATION..2/5/11 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 2/5/11 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S4.5.11 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 4.5.11 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER