Sh. Sandeep Jain, New Delhi V. ITO, New Delhi

ITA 4817/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65867 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 20-11-2012
• Assessment Year: 2009-2010
• Appeal Filed On: 10-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR DEEPAK SEHGAL
• Assessee Lawyers: G S KOHLI
• Keywords: Non-deduction of tax; Relationship of principal and agent

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI FRIDAY G BENCH BEFORE SHRI A.N. PAHUJA, AM & SHRI C.M. GARG, JM ITA NO.4811/DEL/2012 ASSESSMENT YEAR:2009-10 SHRI SANDEEP JAIN 655/4, KATRA NEEL GALI, GHANTESHWAR, CHANDNI CHOWK, TILAK BAZAR, DELHI V/S . INCOME-TAX OFFICER, WARD 29(3), NEW DELHI [PAN : AGFPJ 1342 R] (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI G.S. KOHLI, AR REVENUE BY DR. DEEPAK SEHGAL, DR DATE OF HEARING 20-11-2012 DATE OF PRONOUNCEMENT 23-11-2012 O R D E R A.N.PAHUJA:- THIS APPEAL FILED ON 10.09.2012 BY THE ASSESSEE AGA INST AN ORDER DATED 30.08.2012 OF THE LD. CIT(A)-XXV, NEW DELHI, RAISES THE FOLLOWING GROUNDS:- 1. THE LEARNED ASSESSING OFFICER AS WELL AS CIT(A) WERE NOT JUSTIFIED IN DISALLOWING THE CLAIM OF ` ` 21,57,429/- UNDER THE HEAD COMMISSION. 2. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN CONFIRMI NG AN ACTION OF THE LEARNED ASSESSING OFFICER FOR AN APPLICATION OF SECTION 40(A)(IA) IN RESPECT OF CLAIM OF ` `21,57,429/- UNDER THE HEAD COMMISSION. THE PAYMENT WAS RELATED TO DISCOUNT WHERE THE PR OVISO 40(A)(IA) IS NOT APPLICABLE. 3. THAT WITHOUT PREJUDICE TO PARA-2 THAT SINCE NO PAYMENT WAS PAYABLE AT THE END OF THE YEAR RELATED TO THE CONCE RNED CLAIM, THEREFORE, THE PROVISO 40(A)(IA) WAS NOT APPLICABLE . ITA NO.4817/DEL./2012 2 4. THAT THE APPELLANT CRAVES HIS RIGHT TO AMEND, DE LETE OR ADD ANY GROUNDS OF APPEAL AT OR BEFORE THE TIME OF HEAR ING. 2. FACTS, IN BRIEF, AS PER RELEVANT ORDERS ARE THA T E-RETURN DECLARING INCOME OF ` ` 3,90,010/- FILED ON 29 TH SEPTEMBER, 2009 BY THE ASSESSEE, ENGAGED IN THE BUSINESS OF FINANCING, WAS SELECTED FOR SCRU TINY WITH THE SERVICE OF A NOTICE U/S 143(2) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). IN THIS CASE, AN AIR INFORMATION WAS RECEIVED THAT TH E ASSESSEE RECEIVED COMMISSION OF ` 97,601/- DURING THE YEAR UNDER CONSIDERATION FROM K OTAK MAHINDRA BANK LTD..DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER (A.O. IN SHORT) NOTICED THAT THE ASSESSEE CLAIMED TO HAVE RECEIVED COMMISSION OF ` 94,985/- DURING THE YEAR FROM THE BANK AND FURTHER CLAIMED COMMISSION EXPENSES OF ` ` 21,57,429/-, WITHOUT DEDUCTING TAX AT SOURCE THEREON. THERE IS NOTHING TO SUGGEST AS TO WHETHER OR NOT ANY QUERY WAS RAISED BY THE AO REGARDING NON-DEDUCTION OF TAX AT SOURCE FROM PAYMENT OF THE SAID AMOUNT OF COMMISSION NOR THE REASONS FOR PAYMENT OF THE HUGE COMMISSION ARE EVIDENT FROM THE ASSESSMENT ORDER. IN ANY CASE, THE AO DISALLOWED THE SAID AMOUNT IN TERMS OF PROVISIONS OF SEC. 40(A)(IA) OF THE ACT, TAX HAVING NOT BEEN DEDUCTED AT SOURCE FROM THE SAID PAYMENT. 3. ON APPEAL, THE LD. CIT(A) UPHELD THE CONCLUSIO N OF THE AO IN THE FOLLOWING TERMS:- 5.2 THE ASSESSEE IS IN APPEAL AGAINST THE ORDER O F THE ASSESSING OFFICER AND IT IS SUBMITTED THAT THE ASSE SSING OFFICER IS NOT JUSTIFIED TO MAKE THE DISALLOWANCE OF THE COMMI SSION PAYMENTS AS ACTUALLY THE SAME ARE NOT THE COMMISSION PAYMENT S BUT THE DISCOUNTS ETC. GIVEN TO VARIOUS PARTIES/CLIENTS. I T IS ALSO SUBMITTED THAT THE PROVISIONS OF SECTION 40(A)(IA) IS NOT APP LICABLE AS THE COMMISSION HAS ALREADY BEEN PAID WITHOUT MAKING TDS AND THE PROVISIONS ARE APPLICABLE ONLY WHEN THE COMMISSIONS ARE PAYABLE AND THE ASSESSEE ALSO TRIED TO RELY ON VARIOUS CASE LAWS IN SUPPORT OF THE CLAIM BUT IT IS SEEN THE FACTS OF THE CASES ARE DIFFERENT AND DISTINGUISHABLE FROM THE FACTS OF THE CASE OF THE A SSESSEE. ITA NO.4817/DEL./2012 3 5.3 I HAVE CONSIDERED THE ORDER OF THE ASSESSING O FFICER AND THE SUBMISSIONS OF THE ASSESSEE AND I DO NOT FI ND ANY MERIT IN THE SUBMISSIONS OF THE ASSESSEE AS THE ASSESSEE HAS FAILED TO MAKE TDS U/S 194H FOR THE COMMISSIONS PAYMENTS TO V ARIOUS PARTIES AND AS SUCH THE ASSESSING OFFICER IS JUSTIF IED TO MAKE THE DISALLOWANCE U/S 40(A)(IA). THE ASSESSEE ALSO FAIL ED TO PROVE THAT IT IS NOT A COMMISSION PAYMENT BUT THE DISCOUNTS AND A S SUCH FAILED TO CONTROVERT THE FINDINGS OF THE ASSESSING OFFICER . THE ASSESSEE ALSO FAILED TO SUBMIT ANY DETAILS OR ANY EVIDENCE T O SHOW THAT THE PROVISIONS OF SECTION 40(A)(IA) IS NOT ATTRACTED AN D AS SUCH THE ASSESSEE HAS FAILED TO CONTROVERT THE FINDINGS OF T HE ASSESSING OFFICER. AFTER CONSIDERING ALL THE FACTS AND CIRCU MSTANCES OF THE CASE, I AM OF THE VIEW THAT THERE IS NO MERIT IN TH E SUBMISSIONS OF THE ASSESSEE AS THE ASSESSEE HAS FAILED TO SUBMIT A NY DETAILS OR EVIDENCE AGAINST THE ADDITION MADE BY THE ASSESSING OFFICER AND ACCORDINGLY, THE ADDITION/DISALLOWANCE MADE BY THE ASSESSING OFFICER IS CONFIRMED. 4. THE ASSESSEE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDINGS OF THE LD. CIT(A).WHILE REFERRING TO PAGE 6 AND 7 OF THE PAPER BOOK, THE LD. AR CONTENDED THAT THE ASSESSEE PAID COMMISSION/ DISCOUNT TO VARIOUS PARTIES IN THE PROCESS OF ARRANGING LOANS FOR VARIOUS LOANE ES OUT OF COMMISSION RECEIVED FROM THE BANKS. THE AMOUNT WAS IN THE NATURE OF DI SCOUNT AND COULD NOT BE TREATED AS COMMISSION, SINCE NO SERVICES WERE RENDE RED BY THE RECIPIENTS TO THE ASSESSEE. WHILE REFERRING TO DECISION DATED 27.5.2 011 OF THE ITAT IN DCIT VS. SURENDRA BUILDTECH PVT. LTD. IN I.T.A. NOS.4554 & 4 854/D/2010 AS ALSO DECISION OF HONBLE ALLAHABAD HIGH COURT IN JAGRAN PRAKASHAN LTD. VS. DCIT (TDS), 345 ITR 288 AND AHMEDABAD STAMP VENDOR ASSOCIATION VS. UNION OF INDIA, 257 ITR 202(GUJ) AFFIRMED BY HONBLE APEX COURT IN 348 ITR 378, THE LD. AR VEHEMENTLY ARGUED THAT THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT ARE NOT APPLICABLE IN THE INSTANT CASE. EVEN OTHERWISE, NO AMOUNT WAS PAYABL E AS ON 31.3.2009 AND THUS, IN TERMS OF DECISIONS IN JAIPUR VIDYUT VITRAN NIGA M LTD. VS. DCIT, 123 TTJ 888(JAIPUR) AND ; IN K. SRINIVAS NAIDU 131 TTJ 17( HYDERABAD ) , NO DISALLOWANCE COULD BE MADE, THE LD. AR ADDED. ITA NO.4817/DEL./2012 4 5. ON THE OTHER HAND, THE LD. DR SUPPORTED THE FIN DINGS OF THE LD. CIT(A). 6. WE HAVE HEARD BOTH THE PARTIES & GONE THROUGH THE FACTS OF THE CASE. AS IS APPARENT FROM THE AFORESAID FACTS, THE AO DISALLOWED THE CLAIM FOR DEDUCTION OF AN AMOUNT OF ` `21,57,429/- ON ACCOUNT OF COMMISSION, HAVING RECOURSE TO PROVISIONS OF SEC.40A(IA) OF THE ACT, TAX HAVING NOT BEEN DEDUCTED AT SOURCE AT THE TIME OF PAYMENT OF THE AMOUNT. THERE IS NOTHING TO SUGGEST AS TO WHETHER OR NOT ANY QUERY WAS RAISED BY THE AO REGAR DING THE NATURE OF THE AMOUNT OR FOR NON-DEDUCTION OF TAX AT SOURCE FROM P AYMENT OF THE SAID AMOUNT OF COMMISSION NOR ANY REPLY SEEMS TO HAVE BEEN FILED B EFORE THE AO AND NOR EVEN ANY REASONS FOR PAYMENT OF THE HUGE COMMISSION ARE EVIDENT FROM THE ASSESSMENT ORDER. ON APPEAL, THOUGH THE ASSESSEE RA ISED A PLEA THAT THE AMOUNT WAS NOT COMMISSION BUT DISCOUNT, THE LD. CIT (A) WITHOUT ASCERTAINING THE NATURE OF AMOUNT, REJECTED THE SAID PLEA ON THE GR OUND THAT THE ASSESSEE FAILED TO PROVE THAT IT WAS NOT A COMMISSION PAYMENT BUT DISCOUNT. ACCORDINGLY, THE LD. CIT(A) UPHELD THE DISALLOWANCE, THE ASSESSEE HAVING FAILED TO SUBMIT ANY DETAILS OR EVIDENCE TO SHOW THAT THE PROVISIONS OF SECTION 40(A)(IA) WERE NOT ATTRACTED. INDISPUTABLY, THE ASSESSEE RECEIVED AN AMOUNT OF ` 35,67,665/- [PG. 5 OF PB] FROM FOUR PARTIES VIZ. M/S DEVELOPMENT CREDIT BANK LTD., KOTAK MAHINDRA BANK LTD., RELIANCE CAPITAL LTD., AND CHOLAMANDLAM DBS FINANCE LTD. ON ACCOUNT OF COMMISSION. THOUGH TOTAL RECEIPTS ARE STATED TO BE ` 44,25,143/-, A COPY OF THE RELEVANT PROFIT & LOSS ACCOUNT OR ANY DETAILS AS T O THE NATURE OF THIS AMOUNT OR NATURE OF SERVICES RENDERED TO THE AFORESAID PARTIE S, WHO HAVE PAID COMMISSION, IS NOT EVIDENT FROM THE IMPUGNED ORDER NOR HAS BEEN SUBMITTED BEFORE US. THE ASSESSEE ALSO CLAIMED DEDUCTION OF AN AMOUNT OF ` 21,57,429/- TOWARDS COMMISSION[THOUGH AN AMOUNT OF` ` 21,55,929/- ON ACCOUNT OF REBATE/DISCOUNT TO VARIOUS PARTIES, NUMBERING SIXTY IS MENTIONED ON PG .6 & 7 OF PB] WITHOUT DEDUCTION OF TAX AT SOURCE. THE EVIDENCE AND RELEVA NT DETAILS AS TO THE NATURE OF THIS AMOUNT I.E AS TO WHETHER THE AMOUNT IS TOWARD S REBATE/DISCOUNT OR COMMISSION, IS NOT AVAILABLE IN THE PAPER BOOK NOR THE LD. CIT(A) SEEMS TO HAVE ITA NO.4817/DEL./2012 5 ASCERTAINED. HOWEVER, IN A BRIEF SYNOPSIS[PG.2 OF T HE PB] FILED BEFORE US , IT IS STATED THAT THE ASSESSEE HAS ONLY SHARED/PARTED WI TH THE COMMISSION TO ALLURE THE LOANEE TO BRING SOME MORE CUSTOMERS OR SIMILAR CASES AND THUS, IT WAS ONLY AN AMOUNT TO THE LOANEE WHICH RESULTED IN REDUCTION OF FILING FEE CHARGED BY THE BANKER IN GRANTING LOAN TO THE LOANEES. EVEN THIS STATEMENT IS NOT SUPPORTED BY ANY EVIDENCE NOR THE LD. CIT(A) RECORDED ANY FINDI NGS ON THIS PLEA MADE BY THE ASSESSEE BEFORE HIM. THE PROVISIONS OF SECTION 194 H OF THE ACT ,INVOKED BY THE AO & THE LD. CIT(A) DEAL WITH TAX DEDUCTED AT SOURC E ON PAYMENTS MADE ON ACCOUNT OF COMMISSION OR BROKERAGE. THESE ARE NOT A PPLICABLE TO TRADE DISCOUNTS AS HELD BY THE HONBLE GUJARAT HIGH COURT IN AHMED ABAD STAMP VENDORS ASSOCIATION VS. UNION OF INDIA [2002] 257 ITR 202,S UBSEQUENTLY APPROVED BY HONBLE APEX COURT IN 348 ITR 378(SC). HONBLE GUJ ARAT HIGH COURT OBSERVED AT PAGE 215 OF THE ITR THAT TO FALL WITHIN THE DEFINIT ION OF COMMISSION OR BROKERAGE AS CONTAINED IN EXPLANATION TO SECTION194 H OF THE ACT, THE PAYMENT RECEIVED OR RECEIVABLE, DIRECTLY OR INDIRECTLY, IS BY A PERSON ACTING ON BEHALF OF ANOTHER PERSON (I) FOR SERVICES RENDERED (NOT BEING PROFESSIONAL S ERVICES) OR (II) FOR ANY SERVICES IN THE COURSE OF BUYING OR SELLING OF GOODS OR (III ) IN RELATION TO ANY TRANSACTION RELATING TO ANY ASSET, VALUABLE ARTICLE OR THING. THUS,THE ELEMENT OF AGENCY HAS TO BE THERE IN CASE OF ALL SERVICES OR TRANSACTIONS CO NTEMPLATED BY EXPLANATION (I) TO SECTION 194H OF THE ACT. HONBLE GUJARAT HIGH COURT ALSO ANALYSED THE DISTINCTION BETWEEN COMMISSION AND DISCOUNT IN THE FOLLOWING WO RDS- AT THIS STAGE, WE MAY ALSO MAKE A REFERENCE TO THE DISTINCTION BETWEEN COMMISSION AND DISCOUNT AS EXPLAINED IN LAW DIC TIONARIES AND IN JUDICIAL PRONOUNCEMENTS. IN BLACKS LAW DICTIONARY, COMMISSION AND DISCOUNT AR E DEFINED AND EXPLAINED AS UNDER: COMMISSION: THE RECOMPENSE, COMPENSATION OR REWARD OF AN AGENT, SALE SMAN, EXECUTOR, TRUSTEE, RECEIVER, FACTOR, BROKER, OR BAILEE, WHEN THE SAME IS CALCULATED AS A PERCENTAGE ON THE AMOUNT OF HIS TRANSACTI ONS OR ON THE PROFIT TO THE PRINCIPAL WEINER V. SWALES 217MD.123 ; 141 A.2D 749, ITA NO.4817/DEL./2012 6 750. A FEE PAID TO AN AGENT OR EMPLOYEE FOR TRANSACTI NG A PIECE OF BUSINESS OR PERFORMING A SERVICE. FRAYER V. CURRIN APP. 280 SC 241; 312 S.E. 2D 16, 18. COMPENSATION TO AN ADMINISTRATOR OR OTHER FIDUCIARY FOR THE FAITHFUL DISCHARGE OF HIS DUTIES. DISCOUNT: IN A GENERAL SENSE, AN ALLOWANCE OR DEDUCTION MADE FROM A GROSS SUM ON ANY ACCOUNT WHATEVER. IN A MORE LIMITED AND TECHNICA L SENSE, THE TAKING OF INTEREST IN ADVANCE. A DEDUCTION FROM AN ORIGINAL PRICE OR DEBT, ALLOWED F OR PAYING PROMPTLY OR IN CASH. METHOD OF SELLING SECURITIES (E.G., TREASURY BILLS) WHICH ARE ISSUED BELOW FACE VALUE AND REDEEMED AT FACE VALUE . . . TO PURCHASE AN INSTRUMENT OR OTHER RIGHT TO THE PAYME NT OF MONEY, USUALLY FOR AN AMOUNT LESS THAN THE FACE AMOUNT OR VAL UE OF THE RIGHT. 6.1 HONBLE GUJARAT HIGH COURT ALSO REFERRED TO TH E DECISION IN HARIHAR COTTON PRESSING FACTORY V. CIT [1960] 39 ITR 594(BOM.), E XPLAINING THE DISTINCTION BETWEEN THE TWO EXPRESSIONS COMMISSION AND DISCOUNT IN THE FOLLOWING WORDS (HEAD NOTE) : THE EXPRESSION COMMISSION HAS NO TECHNICAL MEANING BUT B OTH IN LEGAL AND COMMERCIAL ACCEPTATION OF THE TERM IT HAS DEFI NITE SIGNIFICATION AND IS UNDERSTOOD AS AN ALLOWANCE FOR SERVI CE OR LABOUR IN DISCHARGING CERTAIN DUTIES SUCH AS FOR INSTANCE OF AN AGENT , FACTOR, BROKER OR ANY OTHER PERSON WHO MANAGES THE AFFAIRS OR UNDERTAKES TO DO SOME WORK OR RENDERS SOME SERVICE TO ANOTHER. MOSTLY IT IS A PERCENTAGE ON PRICE OR VALUE OR UPON THE AMOUNT OF M ONEY INVOLVED IN ANY TRANSACTION OF SALE OR SERVICE OR THE QUANTUM OF WORK INVOLVED IN A TRANSACTION. IT CAN BE FOR A VARIETY OF SERVICES AN D IS OF THE NATURE OF RECOMPENSE OR REWARD FOR SUCH SERVICES. REBATE, ON TH E OTHER HAND, IS A REMISSION OR A PAYMENT BACK AND OF THE NATU RE OF A DEDUCTION FROM THE GROSS AMOUNT. IT IS SOMETIMES SPOKEN OF AS A DISCOUNT OR A DRAW-BACK. THE DICTIONARY MEANING OF THE TERM INCLUDES A REFUND TO THE PURCHASER OF A THING OR COMMODITY OF A PORTION OF THE PRICE PAID BY HIM. IT IS NOT CONFINED TO A TRANSACTION O F SALE AND INCLUDES ANY DEDUCTION OR DISCOUNT FROM A STIPULATED PAYM ENT CHARGE OR RATE. IT NEED NOT NECESSARILY BE TAKEN OUT IN ADVANCE OF PAYMENT BUT MAY BE HANDED BACK TO THE PAYER AFTER HE HAS PAID THE STIPULATED SUM. THE REPAYMENT NEED NOT BE IMMEDIATE. IT CAN BE ITA NO.4817/DEL./2012 7 MADE LATER AND IN CASE OF PERSONS WHO HAVE CONTINUOUS D EALINGS WITH ONE ANOTHER IT IS NOTHING UNUSUAL TO DO SO. 6.2 IN THE LIGHT OF VIEW TAKEN IN THE AFORESAID DECISIONS, FOR A PAYMENT TO FALL WITHIN THE CATEGORY OF COMMISSION, THERE MUST BE A RELATIONSHIP OF PRINCIPAL AND AGENT. THE COMMISSION IS A COMPENSATION TO AN AGENT FOR SERVICES TO BE RENDERED. IT IS AN ALLOWANCE OR REWARD MADE TO AGEN TS. THIS IS CALCULATED ON A PERCENTAGE BASIS ON THE AMOUNT OF THE TRANSACTION O R THE PROFITS TO THE PRINCIPAL. ON THE OTHER HAND,DISCOUNT IS AN ABATEMENT OF COST, WHERE IT IS GIVEN AT THE TIME OF SALE. IT IS NOT FOR SERVICES RENDERED BY THE PUR CHASER, SO AS TO CONSTITUTE COMMISSION OR BROKERAGE. SUCH DISCOUNT EVEN INCLUDI NG CASH DISCOUNT FOR PROMPT PAYMENT HAS BEEN TREATED CONSISTENTLY FOR SALES TAX PURPOSES AS ABATEMENT OF COST, SO THAT SALES TAX BECOMES LEVIABLE ONLY ON TH E NET AMOUNT AS WAS DECIDED IN DY. CST V. ADVANI OERLIKON PVT. LTD. [1980] 45 S TC 32 (SC) AND DY. CST V. KERALA RUBBER AND ALLIED PRODUCTS [1993] 90 STC 170 (SC).IN CIT VS.SINGAPORE AIRLINES LTD.,180 TAXMAN128(DEL) IT WAS OBSERVED TH AT WHEN THE TRANSACTION IS ONE THAT BETWEEN PRINCIPAL-TO-PRINCIPAL, THE DIFFER ENCE IN PRICE WOULD ONLY BE DISCOUNT FALLING OUTSIDE THE PURVIEW OF PROVISIONS OF SECTION 194H OF THE ACT . 6.3 IN THE INSTANT CASE BEFORE US, AS IS APPARENT FROM A MERE GLANCE AT THE IMPUGNED ORDER, THE LD. CIT(A) DID NOT INVESTIGATE THE PLEA MADE BY THE ASSESSEEE AS TO NATURE OF TRANSACTION I.E. AS TO W HETHER THE AMOUNT OF ` 21,57,429/- IS IN THE NATURE OF COMMISSION OR REBAT E/DISCOUNT NOR SUCH A PLEA SEEMS TO HAVE BEEN TAKEN BEFORE THE AO. THE LD. AR ON BEHALF OF THE ASSESSEE THOUGH MADE SUCH A PLEA BEFORE US, BUT RELEVANT MAT ERIAL IN SUPPORT OF SUCH PLEA WAS NOT BROUGHT ON RECORD. EVEN WITH REGARD TO HIS ALTERNATE PLEA AS PER GROUND NO.3 THAT NO AMOUNT WAS PAYABLE AT THE END OF THE Y EAR , THERE IS NO MATERIAL BEFORE US NOR SUCH A PLEA SEEMS TO HAVE BEEN TAKEN BEFORE THE LOWER AUTHORITIES. EVEN A COPY OF THE RELEVANT BALANCESHEET HAS NOT BEEN PLACED BEFORE US. THUS, COMPLETE FACTS HAVE NOT BEEN PLACED BEFORE US. RECENTLY IN CIT VS.J.B. ROY IN ITA NOS.. 1114 OF 2005 AND 235, 238, 410, 411, 413, 436, 438 TO 440 OF 2006, ITA NO.4817/DEL./2012 8 HONBLE JURISDICTIONAL HIGH COURT HELD VIDE THEIR O RDER DATED 11.10. 2012 THAT THE TRIBUNAL SHOULD NOT HESITATE TO ORDER A DEEPER INVE STIGATION INTO THE FACTS IN ORDER TO ELICIT THE TRUTH AND IN DOING SO, IT HAS THE POW ER TO REMIT THE MATTER TO THE INCOME TAX AUTHORITIES. IN VIEW OF THE FOREGOING, E SPECIALLY WHEN THE LD. CIT(A) HAVE NOT EXAMINED THE PLEA AS TO WHETHER TH E AMOUNT OF ` 21,57,429/- IS TOWARDS COMMISSION OR REBATE/DISCOUN T NOR RELEVANT MATERIAL HAS BEEN PLACED BEFORE US BY THE LD. AR ON BEHALF OF THE ASSESSEE, WE CONSIDER IT FAIR AND APPROPRIATE TO SE T ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FIL E FOR DECIDING THE AFORESAID ISSUE, AFRESH IN ACCORDANCE WITH LAW IN THE LIGHT OF OUR AFORESAID OBSERVATIONS AND VARIOUS JUDICIAL PRONOUN CEMENTS, INCLUDING THOSE REFERRED TO ABOVE AND OF COURSE, AF TER ALLOWING SUFFICIENT OPPORTUNITY TO BOTH THE PARTIES. NEEDLES S TO SAY THAT WHILE REDECIDING THE APPEAL, THE LD. CIT(A) SHALL PASS A SPEAKING ORDER, KEEPING IN MIND, INTER ALIA, THE MANDATE OF PROVISI ONS OF SEC. 250(6) OF THE ACT, BRINGING OUT CLEARLY AS TO WHETHER THE AMOUNT OF ` 21,57,429/- IS TOWARDS COMMISSION OR REBATE/DISCOUN T .IT MAY BE CLARIFIED THAT THE LD. CIT(A) IS FREE TO UNDERTAKE ANY INDEPENDENT ENQUIRIES, IF FOUND NECESSARY ,IN THE FACTS AND CIR CUMSTANCES OF THE CASE. WITH THESE OBSERVATIONS, GROUND NOS. 1 T0 3 I N THE APPEAL ARE DISPOSED OF. 7 NO ADDITIONAL GROUND HAVING BEEN RAISED IN TE RM OF RESIDUARY GROUND NO. 4 IN THE APPEAL, ACCORDINGLY, THIS GROUND IS DISMISSED. 8. NO OTHER PLEA OR ARGUMENT WAS MADE BEFORE US. ITA NO.4817/DEL./2012 9 9. IN THE RESULT, APPEAL IS ALLOWED BUT FOR STATIST ICAL PURPOSES. SD/- S D/- (C.M. GARG) (A.N. PAHUJA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) NS COPY OF THE ORDER FORWARDED TO :- 1. ASSESSEE 2. INCOME-TAX OFFICER,WARD 29(3),NEW DELHI 3. CIT CONCERNED. 4. CIT (A)-XXV, NEW DELHI 5. DR, ITAT, FRIDAY G BENCH, NEW DELHI 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, DELHI ORDER PRONOUNCED IN OPEN COURT