Dy. CIT, Circle-8, Pune V. M/s. Enpro Industries Pvt. Ltd., Pune

ITA 687/PUN/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2850 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 15-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 18-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Additional evidence
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE , !', $ % BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA, AM ITA NO.687/PN/2013 ASSESSMENT YEAR : 2008-09 THE DY. COMMISSIONER OF INCOME TAX, CIRCLE 8, PUNE. . APPELLANT VS. M/S ENPRO INDUSTRIES PVT. LTD., PLOT NO.12/4, D-I BLOCK, MIDC, CHINCHWAD, PUNE. PAN : AAACE6137H . RESPONDENT / APPELLANT BY : SHRI SANTOSH KUMAR / RESPONDENT BY : SHRI KISHOR PHADKE / DATE OF HEARING : 16.12.2015 / DATE OF PRONOUNCEMENT: 20.01.2016 & / ORDER PER PRADIP KUMAR KEDIA, AM : THE CAPTIONED APPEAL FILED BY THE REVENUE IS AGAINS T THE ORDER OF CIT(A)-V, PUNE DATED 28.12.2012 RELATING TO ASSESSM ENT YEAR 2008-09 PASSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 (I N SHORT THE ACT). 2. BRIEFLY STATED, THE ASSESSEE IS A MANUFACTURER O F SKID MOUNTED PACKAGED PIPING SYSTEMS. FOR THE RELEVANT ASSESSMENT YEAR 2 008-09, THE ASSESSEE FILED RETURN OF INCOME ON 12.09.2008 DECLARING A TAXABLE INCOME OF RS.7,67,06,648/-. IN THE COURSE OF SCRUTINY, THE A SSESSING OFFICER OBSERVED THAT THE ASSESSEE IS CLAIMED TO HAVE INCURRED COMMI SSION EXPENSES OF RS.1,78,95,731/-. IT WAS SEEN BY THE ASSESSING OFF ICER THAT THE ASSESSEE HAS INTER-ALIA PAID COMMISSION EXPENSES TO ONE M/S MASCOT INTERNAT IONAL, PROPRIETOR MRS. PRAJWAL KAMAT. THE ASSESSEE WAS AS KED TO EXPLAIN THE NATURE 2 ITA NO.687/PN/2013 OF COMMISSION PAID TO THE AFORESAID PARTY AND DETAI LS OF SERVICES RENDERED WITH DOCUMENTARY EVIDENCES. THE ASSESSING OFFICER ALLEG ED THAT THE REPLY FILED BY THE ASSESSEE IS GENERAL AND NO SPECIFIC DOCUMENTS O R EVIDENCES WERE FURNISHED BEFORE HIM TO ESTABLISH THE ALLEGED SERVICES PROVID ED. IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCES TO PROVE THE FACT OF UNDERLYI NG SERVICES IN RESPECT OF COMMISSION, THE ASSESSING OFFICER DISALLOWED THE CO MMISSION EXPENSES PAID TO THE AFORESAID PARTY. WHILE ARRIVING AT SUCH ADV ERSE CONCLUSION, THE ASSESSING OFFICER ALSO OBSERVED THAT THE BULK OF TH E COMMISSION PAYMENT HAS REMAINED OUTSTANDING AND ALSO FOUND DEFECT IN THE L EDGER ACCOUNT OF THE COMMISSION AGENT IN THE BOOKS OF THE ASSESSEE VIS- -VIS THE LEDGER ACCOUNT OF THE ASSESSEE IN THE BOOKS OF THE COMMISSION AGENT. THE ASSESSING OFFICER ALSO OBSERVED THAT IN RESPONSE TO NOTICE UNDER SECTION 1 33(6) OF THE ACT ISSUED TO THE PURPORTED COMMISSION AGENT, M/S MASCOT INTERNAT IONAL, SEEKING DETAILS OF SERVICES RENDERED WITH EVIDENCE AND THE NAME AND TH E TELEPHONE NUMBER OF THE PERSONS CONTACTED IN RELIANCE PETROLEUM LTD. (RPL) FROM WHICH THE ASSESSEE HAS CLAIMED TO HAVE RECEIVED THE ORDERS OWING TO TH E EFFORTS OF THE COMMISSION AGENT, THE AFORESAID COMMISSION AGENT HAS ONLY FILE D LEDGER EXTRACT AND A VERY GENERAL REPLY FOR RENDITION OF SERVICES WITHOUT ANY SPECIFIC DETAILS AND EVIDENCES OF ANY SIGNIFICANCE. THEREFORE, DESPITE THE CONFIRMATION FROM THE COMMISSION AGENT ABOUT THE COMMISSION DUE, THE CLAI M OF THE COMMISSION EXPENSES WAS NOT FOUND TENABLE. THE ASSESSING OFFI CER INTER-ALIA OBSERVED THAT NO EVIDENCE HAS BEEN PROVIDED WHEREBY RPL ACKN OWLEDGES THE SERVICES OF M/S MASCOT INTERNATIONAL. HE ALSO OBSERVED THAT THERE IS NO EVIDENCE AVAILABLE FROM THE SIDE OF RPL THAT ANY SERVICES WE RE PROVIDED. IN THE ABSENCE OF REQUISITE DETAILS, CROSS VERIFICATION WITH RPL C OULD NOT BE CARRIED OUT. HE, THEREFORE, HELD THAT NATURE OF PAYMENT IS SUSPECT I N THE CIRCUMSTANCES AND ARRIVED AT A CONCLUSION THAT THE ASSESSEE HAS FAILE D TO ESTABLISH ANY LEGITIMATE SERVICES WERE PROVIDED BY M/S MASCOT INTERNATIONAL FOR WHICH PAYMENT HAS BEEN MADE. HE ACCORDINGLY DISALLOWED COMMISSION EX PENSES OF RS.1,78,95,731/- AND ADDED TO THE TOTAL INCOME OF T HE ASSESSEE. 3 ITA NO.687/PN/2013 3. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). 4. IN RESPECT OF THE AFORESAID ISSUE, THE ASSESSEE SUBMITTED AS PER FACTS OF THE CASE BEFORE THE CIT(A) THAT SUFFICIENT PROOF H AS BEEN SUBMITTED AT THE TIME OF HEARING BEFORE THE ASSESSING OFFICER AND THEREFO RE DISALLOWANCE IS UNCALLED FOR. HE PLACED AN AGENCY AGREEMENT DATED 1 ST JULY, 2004 BEFORE THE CIT(A) AND SUBMITTED THAT THE IMPUGNED AGREEMENT SPELLS TH E UNDERSTANDING OF BOTH THE ASSESSEE AND THE COMMISSION AGENT. THE ASSESSE E CLAIMED BEFORE THE CIT(A) THAT FOR GROWTH OF BUSINESS, THE ASSESSEE HA S APPROACHED THE COMMISSION AGENT WHO HAD GOOD RELATIONSHIP WITH BIG BUSINESS HOUSES AND IS RECKONED TO BE A PERFORMER. HE INTER-ALIA SUBMITTED THAT THE PAYMENT HAS BEEN MADE TO THE COMMISSION AGENT BY CROSS CHEQUES AS PE R TERMS AND CONDITIONS AFTER DEDUCTING TAX AT SOURCE. THE TAX SO DEDUCTED HAS BEEN DEPOSITED TO THE GOVERNMENT TREASURY. THE ASSESSEE CLAIMED THAT IT HAS AMPLE CORRESPONDENCE WITH THE COMMISSION AGENT FOR THE ORDER OF THE RELI ANCE PETROCHEMICALS AND ALLEGED IN CONTRADICTION TO FACTS OF CASE NOTED A BOVE THAT THE ASSESSING OFFICER DID NOT GIVE IT AN OPPORTUNITY TO PRODUCE T HE FURTHER EVIDENCES. 4.1 THE CIT(A) IN ITS ORDER, QUOTED THE REPLY OF TH E ASSESSEE BEFORE ASSESSING OFFICER REGARDING THE NATURE OF SERVICES WHICH REPRODUCED BELOW :- 8. IN REPLY, M/S. MASCOT INTERNATIONAL PROVIDED CO PY OF LEDGER EXTRACT. REGARDING NATURE OF SERVICES IT WAS SUBMITTED AS UN DER: WE ARE REPUTED INDUSTRIAL MARKETING COMPANY REPRES ENTING MANY MULTINATIONAL AND INDIAN COMPANIES FOR OIL GAS AND REFINERY SECTOR IN INDIA. OUR KEY PEOPLE HAVE BEEN WORKING IN THIS FIELD SINC E 1990 AND WE IN MASCOT ARE OPERATING IN THIS FIELD SINCE 2001 ONWARDS. IN THIS REGARD SERVICE RENDERED BY US ARE PROJECT D ETAILS, PRICING STRATEGY, PURCHASE PHILOSOPHY, PRODUCT POSITIONING, PRODUCT A DVANTAGES, CUSTOMER REQUIREMENTS, APPLICATION DETAILS ETC. ARE INFORM T O THE PRINCIPAL COMPANIES. OUR EXPERTISE AND KNOWLEDGE HELP US IN GIVING PROFE SSIONAL ADVICE TO THE COMPANIES WE REPRESENT TO WIN THE CONTRACTS. WE DO NOT PARTICULARLY MEET ANY SPECIFIC PEOPLE IN ANY ORGANIZATION FOR REPRESE NTATION PURPOSE. IT IS GENERALLY HANDLED WITH THE CONCERNED DEPARTMENTS AS APPLICABLE AT THAT POINT OF TIME. 4 ITA NO.687/PN/2013 THE ENPRO ORDER WAS RECEIVED IN THE YEAR 2006-07 AN D AT THAT TIME SOME OF THE OFFICIALS WE WERE IN TOUCH IN RELIANCE PETROLEUM WERE MR. SANDEEP DESHPANDE AND MR. NEELAN JAN CHOUDHARI. HOWEVER, THESE PEOPLE ARE NO MORE WITH R ELIANCE PETROLEUM NOW'. 4.2 THE CIT(A) TOOK NOTE OF THE VARIOUS SUBMISSIONS OF THE ASSESSEE VIZ; FOR EVERY ORDER QUOTED FOR WITH M/S RPL, THE ASSESSEE W AS REQUIRED TO KEEP THE COMMISSION AGENT IN THE LOOP WHO WOULD ENSURE THAT ALL THE TECHNICAL REQUIREMENTS AS WELL AS COMMERCIAL REQUIREMENTS ARE FULLY MET; THE COMMISSION AGENT WOULD ALSO PROVIDE INFORMATION REG ARDING COUNTER QUOTATIONS TO THE ASSESSEE; THE COPY OF E-MAILS SEN T TO M/S RPL WAS ALSO PURPORTEDLY MARKED TO THE COMMISSION AGENT; IN VIEW OF THE EXPERIENCE AND PROFILE OF THE COMMISSION AGENT, THE ASSESSEE ENGAG ED THEIR SERVICES FOR THE PROJECT ANNOUNCED BY THE M/S RPL IN 2004-05. IT WA S ALSO SUBMITTED BEFORE CIT(A) THAT THE COMMISSION AGENT COULD SECURE THE O RDER TO THE TUNE OF RS.40 CRORES IN THIS PROJECT WHICH WOULD PROVE THE EFFECT IVENESS OF THE SERVICES RENDERED BY THEM. IT WAS CONTENDED BEFORE THE CIT( A) THAT THE CONTRACT FOR REPRESENTATION AND PROVIDING MARKET EXPERTISE WAS S TRICTLY BETWEEN THE ASSESSEE AND THE COMMISSION AGENT. RPL WAS NOT INV OLVED IN THE SAME. THE COMMISSION AGENT WAS NOT ALLOWED TO INTERACT OFFICI ALLY DIRECTLY WITH RPL OFFICIAL. IN-FACT, THE AGREEMENT BETWEEN THE ASSES SEE AND THE COMMISSION AGENT CATEGORICALLY STATES THAT ALL OFFICIAL CORRESPONDEN CE WITH THE CUSTOMERS WILL BE MADE BY THE ASSESSEE ONLY. HOWEVER, THE ASSESSEE H AD KEPT THE COMMISSION AGENT INVOLVED IN THE CRUCIAL COMMUNICATION BETWEEN THE ASSESSEE AND RPL AND SOUGHT THEIR EXPERT OPINION FROM TIME TO TIME. THE SERVICES OF THE COMMISSION AGENT WERE MORE FOCUSED ON STRATEGY, PRO DUCT POSITIONING, IDENTIFICATION OF OPPORTUNITY, PRICING STRATEGY ETC .. IT WAS ALSO CONTENDED BY THE ASSESSEE BEFORE CIT(A) THAT THE COMMISSION AGEN T HAS ALSO FILED THE INCOME-TAX RETURN WHEREIN THE IMPUGNED COMMISSION H AS BEEN OFFERED AS INCOME. 4.3 THE CIT(A) REFERRED TO CLAUSE 2.1 OF THE AGREEM ENT WHICH DEALS WITH THE RESPONSIBILITIES OF THE COMMISSION AGENT, WHICH IS REPRODUCED AS UNDER :- 5 ITA NO.687/PN/2013 2.1 THE REPRESENTATIVE SHALL PROMOTE THE PRODUCTS TO THE PROJECTS OF THE PURCHASER. 2.2 THE REPRESENTATIVE SHALL PROVIDE THE PRINCIPAL WITH ALL INFORMATION, SERVICE, ASSISTANCE AND COOPERATION NECESSARY FOR THE SUCCES SFUL AWARD OF THE PROJECT AND DUE EXECUTION OF THE PROJECT IF THE PROJECT IS AWAR DED TO THE PRINCIPAL, WHICH SHALL INCLUDE BUT NOT LIMITED TO THE FOLLOWING, A. AT ALL TIMES, TO MAINTAIN AND DEVELOP GOOD WORKI NG RELATIONSHIP WITH THE PURCHASER FOR SUCCESSFUL AWARD OF THE PROJ ECT TO THE PRINCIPAL. B. TO ASSIST THE PRINCIPAL IN MAKING STRATEGY AND T ACTICS FOR SECURING THE PROJECT THROUGH CLOSE DEALING WITH THE PURCHASE R. C. TO PROVIDE USEFUL INFORMATION WITH THE PRINCIPAL IN RESPECT OF THE PROJECT, THE PURCHASER AND COMPETITORS. D. TO KEEP THE PRINCIPAL CLOSELY INFORMED OF PROGRE SS OF EVALUATION OF THE PRINCIPAL'S TENDER PROPOSAL BY THE PURCHASER , EVALUATION STATUS AND MAJOR DEVELOPMENT OF THE COMPETITION FOR THE WHOLE DURATION OF TENDER PROCESS UNTIL THE PROJECT IS AWA RDED. E. TO SUPPORT AND COORDINATE FOR THE DUE EXECUTION OF THE PROJECT AND ASSIST THE PRINCIPAL TO SHOOT TROUBLE OF MAJOR NATURE WHICH MAY OCCUR BETWEEN THE PURCHASER AND THE PRINCIPAL D URING THE EXECUTION OF THE PROJECT FOR THE BENEFIT OF THE PRI NCIPAL. 4.4 IN THE LIGHT OF SUBMISSIONS OF THE ASSESSEE AND AGENCY AGREEMENT, THE CIT(A) CONCURRED WITH THE CONTENTIONS OF THE ASSESS EE AND ALLOWED THE CLAIM WHILE RECORDING OBSERVATION, HOWEVER, THAT THERE IS LACK OF TRANSPARENCY AS FAR AS SERVICES RENDERED BY THE COMMISSION AGENT AS POI NTED OUT BY THE ASSESSING OFFICER AND THE ASSESSEE OUGHT TO HAVE BEEN MORE CA REFUL IN MAINTAINING RECORDS. 5. AGGRIEVED BY THE ORDER OF THE CIT(A), THE REVENU E IS IN APPEAL BEFORE US. 6. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE NOTED AS UNDER :- 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE CIT(A) WAS JUSTIFIED IN DELETING THE DISALLOWANCE OF COMMISSION PAID OF RS.1,78,95,731/- WHEN IN FACT THE ASSESSEE HAS NOT ABLE TO PROVE THE NATURE OF SERVIC ES RENDERED FOR WHICH THE SAID PAYMENT HAS BEEN MADE. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE CIT(A) WAS JUSTIFIED IN ADMITTING FRESH EVIDENCE IN THE FORM OF AGREEMEN T BETWEEN THE ASSESSEE AND MASCOT INTERNATIONAL WITHOUT FOLLOWING DUE PROCEDUR E AS PER RULE 46A. 6 ITA NO.687/PN/2013 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTE R ANY OF THE ABOVE GROUNDS OF APPEAL. 7. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVE NUE SUBMITTED THAT THE CASE OF THE REVENUE IS TWO-FOLD. FIRSTLY, THE ASSE SSEE COULD NOT PROVE THE NATURE OF SERVICES RENDERED AND THEREFORE ACTION OF THE CIT(A) IN DELETING THE DISALLOWANCE OF COMMISSION PAID IS NOT JUSTIFIED. SECONDLY, THE CIT(A) HAS MISDIRECTED HIMSELF IN LAW IN ADMITTING FRESH EVIDE NCE IN THE FORM OF PURPORTED AGENCY AGREEMENT BETWEEN THE ASSESSEE AND THE COMMI SSION AGENT IN DEROGATION TO RULE 46A OF THE INCOME TAX RULES, 196 2 (IN SHORT THE RULES). THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ASSAILED THE ACTION OF THE CIT(A) AND EXHORTED THAT NO OPPORTUNITY HAS BEE N GIVEN TO THE ASSESSING OFFICER BEFORE PLACING ANY RELIANCE ON THE ADDITION AL EVIDENCES SOUGHT TO BE PRODUCED BY THE ASSESSEE BEFORE THE CIT(A) FOR THE FIRST TIME. THE CIT(A) HAS ALSO NOT RETURNED ANY FINDING AS TO HOW THE ASSESSE E IS ENTITLED TO PLACE THE ADDITIONAL EVIDENCE WITHOUT SATISFYING THE CONDITIO NS EMBEDDED IN RULE 46A OF THE I.T. RULES. THE LD. DEPARTMENTAL REPRESENTATIV E FOR THE REVENUE SUBMITTED THAT MERE PAYMENT OF COMMISSION WOULD NOT IPSO FACTO ENTITLE THE ASSESSEE TO CLAIM AS EXPENDITURE. THE ONUS LAYS ON ASSESSEE TO PROVE THE NATURE OF SERVICES RENDERED BY THE COMMISSION AGENT IN RELATION TO THE BUSINESS OF THE ASSESSEE. THE ONUS HAS NOT BEEN DISCHARGED AT ALL. HE RELIED UPON ON THE ORDER OF THE ASSESSING OFFICER AND SUBMITTED TH AT THE ASSESSING OFFICER HAS RIGHTLY DISALLOWED THE COMMISSION EXPENSES IN THE A BSENCE OF ANY TANGIBLE EVIDENCE TO SUPPORT THE PURPORTED RENDITION OF SERV ICES. 8. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESS EE, ON THE OTHER HAND, ALSO FILED ADDITIONAL EVIDENCE BEFORE US IN THE FOR M OF STATEMENT OF ORDERS RECEIVED THROUGH THE COMMISSION AGENT AND COPY OF C ERTAIN PURCHASE ORDERS RECEIVED FROM M/S RPL AND OTHER COMPANIES AS PER PA GE NO.119 TO 154 OF THE PAPER BOOK. HE ALSO FILED LETTER DATED 16.12.2015 BEFORE THE TRIBUNAL WITH REQUEST TO ADMIT THESE ADDITIONAL EVIDENCES. 7 ITA NO.687/PN/2013 8.1 THE CONTENTS OF THE PETITION FILED BEFORE THE T RIBUNAL FOR ADMISSION OF THE ADDITIONAL EVIDENCE IS REPRODUCED BELOW :- THE ABOVE APPEAL IS FIXED FOR HEARING TODAY. THE APPELLANT HAS SUBMITTED FOLLOWING PAPERS THROUGH THE PAPER BOOK-II (PAGE NO .119 TO PAGE NO.154). A) DATE-WISE CHART SHOWING LINKING BETWEEN PURCHASE ORDER, BILLS, RECEIPT OF SALES CONSIDERATION AND PAYMENT OF COMMI SSION TO MASCOT. B) COPIES OF THE PURCHASE ORDERS OF VARIOUS PARTI ES. THESE PAPERS WERE NOT FILED BEFORE THE I-T AUTHORIT IES. THESE PAPERS ARE NECESSARY FOR A PROPER ADJUDICATION OF THE MATTER. ASSESSEE REQUESTS THAT THESE PAPERS MAY PLEASE BE PERMITTED TO BE PRODUCED AS ADDITIONAL EV IDENCE. 8.2 THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSES SEE VEHEMENTLY SUBMITTED THAT THE COMMISSION EXPENSES ARE BONA-FID E AND HAS BEEN INCURRED FOR BUSINESS PURPOSES. HE REFERRED TO THE AGENCY A GREEMENT (PAGE NO.33 TO 36 OF THE PAPER BOOK) FILED BEFORE THE CIT(A) WHEREBY THE CONTRACT FOR RENDERING THE SERVICES BY THE COMMISSION AGENT IS BORNE OUT. HE ALSO RELIED UPON THE LEDGER ACCOUNT OF THE COMMISSION AGENT, CORRESPONDE NCE BY EMAILS (PAGE NO.37 TO 107 OF THE PAPER BOOK) FILED BEFORE THE CI T(A) AND SUBMITTED THAT THE ASSESSEE COMPANY HAD FORWARDED THE COPIES OF TH E EMAILS EXCHANGED WITH RELIANCE GROUP TO THE COMMISSION AGENT ALSO. THE L D. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ADVERTED OUR ATTENT ION TO PAGE NO.37 OF THE PAPER BOOK TO SUPPORT THE AFORESAID AVERMENTS. HE ALSO RELIED UPON THE INCOME-TAX RETURN FILED BY THE COMMISSION AGENT FOR THE ASSESSMENT YEAR 2008- 09 WHEREIN THE COMMISSION EXPENSES HAVE BEEN CORRES PONDINGLY DECLARED AS INCOME OF THE COMMISSION AGENT. HE ACCORDINGLY PLE ADED THAT THE CIT(A) HAS CORRECTLY REVERSED THE ACTION OF THE ASSESSING OFFI CER AND NO INTERFERENCE WITH THE ORDER OF THE CIT(A) IS CALLED FOR. 8.3 THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSES SEE NEXT ADVERTED OUR ATTENTION TO THE PROCEEDINGS SHEETS, (PAGE NO.155 T O 159 OF THE PAPER BOOK) AND ENTRY OF PROCEEDINGS ON 10.12.2010 IN PARTICULA R AND SUBMITTED THAT THE ASSESSING OFFICER NOTED IN THE PROCEEDINGS SHEETS T HAT THE EVIDENCE OF SERVICES ARE NOT VERY CONVINCING FOR WHICH OPPORTUNITY TO FI LE REPLY WAS GIVEN BY 8 ITA NO.687/PN/2013 13.12.2010. HE SUBMITTED THAT THE OPPORTUNITY GIVE N WAS NOT SUFFICIENT AT ALL TO DISPEL THE DOUBT IN THE MIND OF THE ASSESSING OF FICER. 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND ALSO THE MATERI AL PLACED ON RECORD. WE FIND THAT THE REVENUE HAS OBJECTED TO THE ADMISSION OF A DDITIONAL EVIDENCES WITHOUT GIVING AN OPPORTUNITY TO THE ASSESSING OFFICER. ON THE OTHER HAND, THE ASSESSEE ALSO SEEKS TO RELY ON THE ADDITIONAL EVIDE NCE TO FURTHER JUSTIFY THE BONAFIDES OF THE COMMISSION EXPENDITURE. WE FIND T HAT THE CIT(A) HAS TAKEN INTO ACCOUNT CERTAIN NEW FACTS WHILE GRANTING RELIE F TO THE ASSESSEE. THE ASSESSING OFFICER WAS NOT MADE PRIVY TO THE NEW FAC TS AND CONTENTIONS OF THE ASSESSEE WITH REGARD TO COMMISSION EXPENSES BEFORE THE CIT(A). NEEDLESS TO SAY, SPIRIT OF RULE 46A OF THE INCOME TAX RULES, 19 62, IS FOUNDED ON THE PRINCIPLES OF NATURAL JUSTICE, WHICH IN THE PRESENT CASE HAS NOT BEEN FULFILLED BY THE CIT(A). LIKEWISE, THE ASSESSEE ALSO SEEKS TO A DDRESS THE ISSUE WITH REFERENCE TO EXTRA EVIDENCES. IN THE LIGHT OF THE AFORESAID CIRCUMSTANCES, WE CONSIDER IT JUST AND EXPEDIENT TO SET-ASIDE THE ORD ER OF THE ASSESSING OFFICER AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSE SSING OFFICER TO ARRIVE AT A RATIONAL CONCLUSION ON THE BONAFIDES OF THE IMPUGNE D COMMISSION EXPENSES DE NOVO AFTER TAKING INTO ACCOUNT ALL RELEVANT MATERIALS T HAT MAY BE RELIED UPON BY THE ASSESSEE AND AFTER MAKING SUCH ENQUIRY AS HE MA Y DEEM FIT. NEEDLESS TO SAY, PROPER OPPORTUNITY OF HEARING SHALL BE GIVEN T O THE ASSESSEE WHILE DETERMINING THE ISSUE. ACCORDINGLY, THE MATTER IS SET-ASIDE AND REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER IN TERMS OF DI RECTIONS NOTED ABOVE. 10. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 20 TH DAY OF JANUARY, 2016. SD/- SD/- ( SUSHMA CHOWLA ) ( PRADIP KUMAR KEDIA ) / JUDICIAL MEMBER $ / ACCOUNTANT MEMBER PUNE ; DATED : 20 TH JANUARY, 2016. 9 ITA NO.687/PN/2013 & ' ()* +*( / COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-V, PUNE; 4) THE CIT-V, PUNE; 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. &, / BY ORDER , ' # //TRUE COPY// $ %& # '( / SR. PRIVATE SECRETARY ) '* , / ITAT, PUNE