The ACIT, Circle-2, Surat V. M/s. Jhawar International, Surat

ITA 561/AHD/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 50519 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 27-07-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 20-02-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABOVE OF LD CITA IS IN APPE
• Assessee Lawyers: CD
• Keywords: Business expenditure; Diversion of income; Third party statement
• Section: 143(3); 234B; 37

Judgement Text

, , . .. . . .. . , , , , ! ! ! ! ' '' '# ## # $ $ $ $. .. .% %% % . .. .& & & &, , , , ' ' ' ' % ! % ! % ! % ! IN THE INCOME TAX APPELLATE TRIBUNAL : D BENCH : AHMEDABAD (BEFORE HONBLE SHRI G.D.AGRAWAL, V.P. & HONBLE SHRI T.K. SHARMA, J.M.) # # # #. 257/AHD./2009 : ()- 2005-2006 JHAWAR INTERNATIONAL, SURAT VS- A.C.I.T., CIRCLE-2, SURAT (PAN : AACFJ 2540E) (,- ) (./,-) # # # #. 561/AHD./2009 : ()- 2005-2006 A.C.I.T., CIRCLE-2, SURAT -VS- JHAWAR INTERNATIONAL, SURAT (,- ) (./,-) ,- 1 2 % : SHRI RAMESH MALPANI, A.R. ' 1 2 % : SHRI B.L.YADAV, D.R. DATE OF HEARING : 27.07.2011 DATE OF PRONOUNCEMENT : 26.08.2011 O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THESE CROSS APPEALS FILED BY THE ASSESSEE AND THE REVENUE ARE AGAINST THE ORDER DATED 19-11-2008 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-II, SURAT FOR THE ASSESSMENT YEAR 2005-2006. 2. BRIEFLY STATED, THE FACTS ARE THAT THE ASSESSEE IS A FIRM ENGAGED IN THE BUSINESS OF MANUFACTURING AND EXPORT OF TEXTILE GOODS. FOR THE ASSESSMENT YEAR UNDER APPEAL, IT FILED THE RETURN OF INCOME ON 31.10.2005 DECLARING TOTAL INCOME OF RS.13,81,457/- ALONGWITH AUDIT REPORT IN FORM NO.3CB AND 3CD AND A UDITED ACCOUNTS. THE AO FRAMED THE ASSESSMENT UNDER SECTION 143(3) OF THE I .T. ACT ON 26.12.2007 WHEREIN HE DISALLOWED RS.1,72,21,380/- ON ACCOUNT OF FOREIGN B UYERS AGENT COMMISSION AND RS.11,63,521/- ON ACCOUNT OF JOB WORK EXPENSES CONS IDERING THE SAME TO BE BOGUS EXPENDITURE. ITA NOS. 257 & 561-AHD-09 2 3. ON APPEAL, IN THE IMPUGNED ORDER, THE LD. CIT(A) CONFIRMED THE DISALLOWANCE OF RS.11,63,521/- ON ACCOUNT OF JOB WORK EXPENSES F OLLOWING HIS DECISION FOR THE ASSESSMENT YEAR 2004-05. APART FROM THAT, IN THE IM PUGNED ORDER, THE LD. CIT(A) ALSO CONFIRMED THE LEVY OF INTEREST UNDER SECTION 234B O F THE I.T. ACT, 1961. AGGRIEVED BY THE ABOVE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING GROUNDS: A) THAT ON FACTS AND IN THE CIRCUMSTANCES OF CASE , THE HONBLE C.I.T.(A) HAS ERRED IN SUSTAINING ADDITION OF RS.11,63,521/- OF L EGITIMATE BUSINESS EXPENDITURE OF JOB WORK CHARGES. B) THAT THE HONBLE C.I.T.(A) HAS ERRED IN SUSTAIN ING CHARGING OF INTERST U/S 234B OF THE ACT IN RESPECT OF JOB WORK EXPENSES DIS ALLOWED. 3.1 THE LD. CIT(A) ALSO, IN THE IMPUGNED ORDER, DEL ETED THE DISALLOWANCE OF RS. 1,72,21,380/- ON ACCOUNT OF FOREIGN BUYERS AGENT C OMMISSION. AGGRIEVED BY THE ABOVE ORDER OF THE LD. CIT(A), THE REVENUE IS IN APPEAL B EFORE THE TRIBUNAL ON THE FOLLOWING GROUNDS: (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A)-I, SURAT HAS ERRED IN DELETING THE ADDITION OF RS. 1,72,21,380/- MADE BY A.O. ON ACCOUNT OF FOREIGN BUYERS' AGENT COMMISSION HOLDING THAT - A. EACH OF THE TRANSACTION BETWEEN THE 'ASSESSEE AS A SELLER AND THE 'BUYER' ARE MEDIATED BY AGENT WHOSE EXISTENCE WAS ESTABLISHED B EYOND DOUBT, ESPECIALLY AFTER THEY HAD RESPONDED TO THE ASSESSING OFFICER A ND RECONFIRMED AND REVALIDATED THE CONFIRMATION LETTER EARLIER SUBMITT ED BY THEM. B. ALL THE ELEMENTS WHICH ARE REQUIRED IN THE TRANS ACTION INVOLVING PAYMENT OF COMMISSION ARE EXISTED IN THE CASE OF THE ASSESSEE. IGNORING THE MATERIAL FACTS THAT - [I] THE LD. CIT(A) HAD ALLOWED AN APPEAL OF THE A SSESSEE MAINLY RELYING ON THE CONFIRMATION LETTER OF THE SO CALLED COMMISSION AGENT BUT HAS NOT APPRECIATED THAT THE ASSESSEE HAD SIMPLY FURNISHED SUCH CONFIRMATION LETTER FROM THE SO CALLED COMMISSION AGENT AND HAS NOT FUR NISHED ANY SUPPORTING DETAILS TO SUBSTANTIATE ITS CLAIM AND CONFIRMATION OF THE SO CALLED COMMISSION AGENT. [II] THE IDENTICAL ISSUE WAS INVOLVED IN THE CASE OF M/S. PRESIDENCY EXPORT IN THE A. Y. 2004-05. THE LD. CIT(A) HIMSELF HAS DISMI SSED THE APPEAL OF M/S. PRESIDENCY EXPORT ON THIS VERY ISSUE VIDE HIS ORDER DATED 31.08.2008. A ITA NOS. 257 & 561-AHD-09 3 RELEVANT PARA OF THE APPELLATE ORDER PASSED BY CIT( A) IN THE CASE OF PRESIDENCY EXPORT IS REPRODUCED AS UNDER:- 'THERE WAS NO RETURN AGREEMENT EVEN THOUGH IT HAS B EEN REPEATEDLY CLAIMED BY THE AR THAT THERE WERE ORAL AGREEMENT WITH ALL THE BUYERS. THE TERMS AND CONDITION REPEATEDLY REFERRED BY THE AR SIMPLY DID NOT EXIST. THERE WAS ABSOLUTELY NO EVIDENCE, TO SUPPORT THE AMOUNTS DEDU CTED FROM THE INVOICE VALUES OR EVEN THE PERCENTAGE AGREED UPON BETWEEN T HE ASSESSEE AND THE BUYERS.' 4. AT THE TIME OF HEARING BEFORE US, ON BEHALF OF T HE ASSESSEE, SHRI RAMESH MALPANI APPEARED AND POINTED OUT THAT IN THE ASSESSMENT YEA R UNDER APPEAL, THE AO DISALLOWED JOB WORK CHARGES TO THE EXTENT OF RS.11,63,521/- IN RES PECT OF TWO PARTIES, NAMELY, M/S. VIKRAM JOB WORKS (RS.5,12,940/-) AND M/S. PRITIKA H AND PRINTING WORKS (RS.6,50,581/-) TOTALING TO RS.11,63,521/-. IN THE IMMEDIATELY PREC EDING ASSESSMENT YEAR I.E. 2004-05, THE AO DISALLOWED RS.1,17,73,210/-, WHICH WAS ALSO CONF IRMED BY THE LD. CIT(A), IN THE IMPUGNED ORDER, FOR THE ASSESSMENT YEAR 2004-05. TH E LD. COUNSEL SUBMITTED THAT ON FURTHER APPEAL, THE ITAT, VIDE ITS DECISION DATED 0 8.01.2010 FOR THE ASSESSMENT YEAR 2004-05 IN ITA NO.1938 & 2015/AHD/2008, DELETED THE ADDITION MADE BY THE AO. THE COUNSEL OF THE ASSESSEE POINTED OUT THAT THE FACTS AND CIRCUMSTANCES FOR MAKING THE DISALLOWANCE FOR THE ASSESSMENT YEAR UNDER APPEAL A RE THE SAME WITH THAT OF THE IMMEDIATELY PRECEDING ASSESSMENT YEAR I.E. 2004-05. THEREFORE, FOLLOWING THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE , T HE DISALLOWANCE OF JOB WORK CHARGES AMOUNTING TO RS.11,63,521/- BE DELETED. 5. ON THE OTHER HAND, SHRI B.L.YADAV, APPEARING ON BEHALF OF THE REVENUE, COULD NOT CONTROVERT THE AFORESAID SUBMISSIONS MADE BY TH E LD. COUNSEL OF THE ASSESSEE. 6. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND THE DECISION DATED 08.01.2010 OF THE ITAT, A BENCH, AHMEDABAD IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004-05. FROM THE PERUSAL OF THE ASSESSMENT ORDER AND THE IMPUGNED ORDER OF T HE LD. CIT(A), IT IS CLEAR THAT REASONING GIVEN BY THE LD. CIT(A) FOR CONFIRMING TH E ADDITION MADE BY THE AO ON ACCOUNT JOB CHARGES EXPENSES AMOUNTING TO RS. 11,63 ,521/- IS IDENTICAL WITH THAT OF THE REASONS IN THE ASSESSMENT YEAR 2004-05. IN THE ASS ESSMENT YEAR 2004-05, THE ITAT, ITA NOS. 257 & 561-AHD-09 4 VIDE ITS DECISION DATED 08.01.2010 ( SUPRA ), DELETED THE DISALLOWANCE OF JOB WORK CHARGES AMOUNTING TO RS. 1,17,73,210/-. WE, THEREFORE, FOLL OWING THE AFORESAID ORDER OF THE TRIBUNAL, DELETE THE DISALLOWANCE OF JOB WORK CHARG ES AMOUNTING TO RS.11,63,521/- FOR THE APPEAL UNDER CONSIDERATION ALSO. 6.1 REGARDING GROUND NO.2 OF THE ASSESSEES APPEAL, AS BOTH THE SIDES AGREED THAT THIS CHARGING OF INTEREST UNDER SECTION 234B OF THE ACT IS CONSEQUENTIAL, ACCORDINGLY, WE DIRECT THE AO TO CHARGE THE INTEREST AFTER GIVING A PPEAL EFFECT TO THIS ORDER CONSEQUENTLY. THIS ISSUE OF THE ASSESSEES APPEAL IS ALLOWED CONS EQUENTLY. 7. NOW WE TAKE UP THE REVENUES APPEAL IN ITA NO. 561/AHD./2009. BRIEF FACTS RELATING TO CONTROVERSY INVOLVED IN REVENUES APPEA L IS THAT IN THE ASSESSMENT ORDER, THE AO DISALLOWED FOREIGN BUYERS AGENT COMMISSION AMOUNTING TO RS. 1,72,21,380/- PAID TO AMBITIOUS IMPACTS LLC UNDER SECTION 37 OF T HE ACT. THIS DISALLOWANCE IS MADE BY THE AO ON THE FOLLOWING GROUNDS: [I] THE ASSESSEE HAS CLAIMED TO HAVE PAID COMMISS ION TO FOREIGN AGENT, M/S. AMBITIOUS IMPACTS LLC OF 3,87,175 US$ EQUIVALENT TO INDIAN RUPEES 1,72,21,380/-. [II] AS PROVIDED UNDER SECTION 37 OF THE ACT, COMMI SSION IS AN ALLOWABLE DEDUCTION, IF THE SERVICES ARE RENDERED BY THE SO-C ALLED COMMISSION AGENT TO THE ASSESSEE. THE ASSESSEE HAD NOT FURNISHED ANY EVIDEN CE WHICH MAY SHOW THAT THE SO CALLED COMMISSION AGENT HAD ACTUALLY RENDERED AN Y SERVICES TO THE ASSESSEE FOR THE PURPOSE OF ITS BUSINESS. 8. ON APPEAL, IN THE IMPUGNED ORDER, THE LD. CIT(A) DELETED THE DISALLOWANCE OF FOREIGN BUYERS AGENT COMMISSION AMOUNTING TO RS. 1 ,72,21,380/- ON THE FOLLOWING GROUNDS: [I] ALL THE ELEMENTS WHICH ARE REQUIRED FOR ANY T RANSACTION INVOLVED THE PAYMENT OF COMMISSION EXIST IN THE CASE OF THE ASSE SSEE. [II] EACH OF THE TRANSACTIONS BETWEEN 'ASSESSEE AS A SELLER' AND 'BUYER' ARE MEDIATED BY AGENT WHOSE EXISTENCE WAS ESTABLISHED B EYOND DOUBT ESPECIALLY AFTER THEY HAD RESPONDED TO THE A.O. AND RECONFIRME D AND REVALIDATED THE CONFIRMATION LETTERS EARLIER SUBMITTED BY THEM. [III] THERE WERE RENDERING OF SERVICES IN PROCURIN G SAMPLES DECIDING THE ORDERS AND SETTLING ALL MATTERS BETWEEN 'BUYERS' & SELLERS' INCLUDING PAYMENTS MADE BY THE BUYERS TO THE SELLERS. EVEN IF THE COMM ISSION PARTIES WERE ITA NOS. 257 & 561-AHD-09 5 APPOINTED BY BUYERS SERVICES WERE INDIRECTLY RENDER ED AS WELT TO THE ASSESSEE, AS SELLER AS WELL. [IV] THE EXISTENCE OF THE AGENTS AND THERE FUNCTIO NING WAS BENEFITED TO THE ASSESSEE AS WELL. [V] THE COMMISSION AGENT HAS IN HIS CONFIRMATORY LETTER, WHICH WAS FURNISHED BY THE ASSESSEE TO THE A.O. DURING THE COURSE OF AS SESSMENT PROCEEDINGS HAD CONFIRMED THAT THE SELLER I.E. THE ASSESSEE WAS ENT ITLED TO RECEIVE 'NET AMOUNT' AFTER DEDUCTING THEIR COMMISSION IN RESPECT OF EACH TRANSACTION AND THEREBY THEY HAVE CONFIRMED THE RECEIPT OF COMMISSION BY TH EM. [VI] THERE WERE NOT ONLY 'CONTRA CONFIRMATIONS' BU T ALSO RECONFIRMATION OF THE CONTRA CONFIRMATION' WHICH CAN NOT BE RULED OUT BY THE A.O. MERELY FOR THE SAKE OF DISALLOWANCE OF THE COMMISSION EXPENDITURE. [VII] THE GENUINENESS OF THE COMMISSION PAYMENT A S WELL AS JUSTIFICATION OF HAVING BEEN WHOLLY AND EXCLUSIVELY INCURRED FOR THE PURPOSE OF BUSINESS IS ESTABLISHED AND THEREBY THE COMMISSION PAYMENT IS A N ALLOWABLE DEDUCTION U/S.37(L) OF THE ACT. [VIII] THE GROSS EXPORT PROCEEDINGS WERE NEVER REAC HED IN THE HANDS OF THE ASSESSEE AND ONLY 90% OF THE GROSS EXPORTS WERE REA CHED TO THE ASSESSEE BECAUSE OF OBLIGATION OR COMPULSION TO DEDUCT THE C OMMISSION FROM THE EXPORT INVOICES WHICH CLEARLY SHOWS THE CASE OF DIVERSION OF INCOME BY OVERRIDING TITLE AND THEREBY THE AMOUNT DEDUCTED FROM THE EXPORT INV OICES WERE CLEARLY AN ALLOWABLE DEDUCTION ARID THEREBY THERE WAS ; NO JUSTIFICATION ON THE PART OF THE A.O. TO DISALLOW THE COMMISSION PAYMENT AS DISALLOW ED BY HIM. 9. AT THE TIME OF HEARING, ON BEHALF OF THE REVENUE , SHRI B.L.YADAV APPEARED AND POINTED OUT THAT THE LD. CIT(A) DELETING THE ADDITI ON MADE BY THE AO AMOUNTING TO RS. 1,72,21,380/- IS NOT ACCEPTABLE FOR THE FOLLOWING R EASONS. I) THE LD.CIT(A) HAD ALLOWED AN APPEAL OF THE ASS ESSEE MAINLY RELYING ON CONFIRMATION LETTER OF THE SO CALLED COMMISSION AGE NT BUT HAS NOT A PPRECIATED THAT THE ASSESSEE HAD SIMPLY FURNISHED SUCH CONFIRM ATION LETTER FROM THE SO CALLED COMMISSION AGENT AND HAS NOT FURNISHED ANY SUPPORTING DETAILS TO SUBSTANTIATE ITS CLAIM AND CONFIRMATION OF THE SO CALLED COMMISSION AGENT, WHICH MAY SHOW:- ITA NOS. 257 & 561-AHD-09 6 A. ANY EVIDENCE OF ANY MONITORING, BUYERS' CONFIRM ATION AND EVEN A SINGLE INSTANCE OF ANY CORRESPONDENCE MADE BY THE A SSESSEE WITH THE SO- CALLED COMMISSION AGENT. B. THE EVIDENCE OF ANY 'NEGOTIATION' OR 'REMITTAN CES' BY AGENT. C. ANY EVIDENCE FOR PROCUREMENT LIKE INVOICES, PAY MENT DETAILS, PROOF OF VISITING INDIA, ETC. D. ANY EVIDENCES AS GLARING AND DECISIVE AS THE AS SESSEE HAS PROVIDED IN THE CONFIRMATION LETTER. II) THE IDENTICAL ISSUE WAS INVOLVED IN THE CASE OF M/S. PRESIDENCY EXPORT IN THE A. Y. 2004-05. THE LD.CIT(A) HIMSELF HAS DISMIS SED THE APPEAL OF M/S. PRESIDENCY EXPORT ON THIS VERY ISSUE VIDE HIS ORDER DATED 31.08.2008. A RELEVANT PARA OF THE APPELLATE ORDER PASSED BY CIT( A) IN THE CASE OF PRESIDENCY EXPORT IS REPRODUCED AS UNDER:- . 'THERE WAS NO WRITTEN AGREEMENT EVEN THOUGH IT HAS BEEN REPEATEDLY CLAIMED BY THE AR THAT THERE WERE ORAL AGREEMENT WITH ALL T HE BUYERS. THE TERMS AND CONDITION REPEATEDLY REFERRED BY THE AR SIMPLY DID NOT EXIST. THERE WAS ABSOLUTELY NO EVIDENCE TO SUPPORT THE AMOUNTS DEDUC TED FROM THE INVOICE VALUES OR EVEN THE PERCENTAGE AGREED UPON BETWEEN T HE ASSESSEE AND THE BUYERS. ' III) THE LD. CIT(A) HAS REPEATEDLY MENTIONED IN T HE APPELLATE ORDER THAT THE ASSESSEE WAS UNDER OBLIGATION OF WRITTEN AGREEMENT OF DEDUCTING COMMISSION FROM THE GROSS INVOICE VALUES AND THEREFORE, THE RE JECTION OF BOOKS CAN NOT BE MADE ON ACCOUNT OF WRONG ACCOUNTING TREATMENT. THE LD. CIT(A) HAS NOT APPRECIATED THAT THERE WAS NO SUCH AGREEMENT ON REC ORD FOR JUSTIFYING THE DEDUCTION CLAIMED BY THE ASSESSEE. THE SALES INVOIC E CAN NOT BE TREATED AS 'AGREEMENT' IN WHICH EVEN THE NAMES AND ADDRESSES O F THE AGENTS ARE NOT MENTIONED AND THE CLAIM OF THE ASSESSEE TO TREAT TH E INVOICES AS AGREEMENT IS ITA NOS. 257 & 561-AHD-09 7 ONLY AN AFTER THOUGHT ON THE PART OF THE ASSESSEE. THE ASSESSEE WAS NEVER UNDER OBLIGATIONS TO DEDUCT/ PAY COMMISSION, BUT IT WAS T HE BUYER WHO WAS DEDUCTING THE COMMISSION. EVEN IF IT IS ACCEPTED THAT THERE W AS ANY SUCH AGREEMENT AND THE ASSESSEE WAS UNDER AN OBLIGATION, THEN, IT IS T HE QUESTION WHY THE ASSESSEE HAS NOT MAINTAINED ANY LEDGER ACCOUNT OF SUCH COMMI SSION AGENT IN ITS BOOKS OF ACCOUNTS. THE LD. CIT(A) HAS NOT APPRECIATED THA T THESE ISSUES WERE ALREADY DISCUSSED BY THE A.O., IN DETAIL, IN THE ASSESSMENT ORDER AND IT WAS RIGHTLY TREATED THAT THE BOOKS OF ACCOUNT OF THE ASSESSEE W ERE LIABLE TO BE REJECTED U/S.145 OF THE ACT. 10. ON THE OTHER HAND, ON BEHALF OF THE ASSESSEE, SHRI RAMESH MALPANI APPE ARED AND POINTED OUT THAT IN THE ASSESSMENT YEAR UNDER APPEA L, THE AO DISALLOWED FOREIGN BUYERS AGENT COMMISSION AMOUNTING TO RS. 1,72,21,380/- PAI D TO AMBITIOUS IMPACTS LLC UNDER SECTION 37 OF THE ACT. IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR I.E. 2004-05, THE AO DISALLOWED RS.1,58,96,274/-, WHICH WAS DELET ED BY THE LD. CIT(A), IN THE IMPUGNED ORDER, FOR THE ASSESSMENT YEAR 2004-05. TH E LD. COUNSEL SUBMITTED THAT ON FURTHER APPEAL, THE ITAT, VIDE ITS DECISION DATED 0 8.01.2010, FOR THE ASSESSMENT YEAR 2004-05 IN ITA NO.2015/AHD/2008, UPHELD THE ORDER O F THE LD. CIT(A), DELETING THE ADDITION MADE BY THE AO. THE COUNSEL OF THE ASSESSE E POINTED OUT THAT THE FACTS AND CIRCUMSTANCES FOR MAKING THE DISALLOWANCE FOR THE A SSESSMENT YEAR UNDER APPEAL ARE THE SAME WITH THAT OF THE IMMEDIATELY PRECEDING ASS ESSMENT YEAR I.E. 2004-05. THEREFORE, THE VIEW TAKEN BY THE LD. CIT(A) DELETIN G THE DISALLOWANCE, FOLLOWING THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE, BE UPHELD. 11. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND THE DECISION DATED 08.01.2010 OF THE ITAT, A BENCH, AHMEDABAD IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004-05. FROM THE PERUSAL OF THE ASSESSMENT ORDER AND THE IMPUGNED ORDER OF T HE LD. CIT(A), IT IS CLEAR THAT REASONING GIVEN BY THE LD. CIT(A) FOR DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF FOREIGN BUYERS AGENT COMMISSION AMOUNTI NG TO RS. 1,72,21,380/- PAID TO AMBITIOUS IMPACTS LLC UNDER SECTION 37 OF THE ACT I S IDENTICAL WITH THAT OF THE REASONS IN THE ASSESSMENT YEAR 2004-05. IN THE ASS ESSMENT YEAR 2004-05, THE ITAT, ITA NOS. 257 & 561-AHD-09 8 VIDE ITS DECISION DATED 08.01.2010 ( SUPRA ), UPHELD THE ORDER OF THE LD. CIT(A) IN DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF FOREIGN BUYERS AGENT COMMISSION AMOUNTING TO RS. 1,58,96,274/-. WE, THEREFORE, FOLLOWING THE AFORESAID ORDER OF TH E TRIBUNAL, DECLINE TO INTERFERE WITH THE ORDER OF TH E LD. CIT(A) IN DELETING FOREIGN BUYERS AGENT COMMISSION AMOUNTING TO RS. 1,72,21,380/-, FOR THE APPEAL UNDER CONSIDERATION ALSO. RESULTANTLY, THE APPEAL OF THE REVENUE IS DIS MISSED. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED WHEREAS THE APPEAL OF THE REVENUE IS DISMISSED. 3 %& 1 45( 6#) 26 / 08 /2010 5 ; 1 <= SD/- SD/- (G.D.AGRAWAL) (T.K. 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