THE ACIT- 12(3), MUMBAI V. M/S. ORIENT TRANSPORT CO., MUMBAI

ITA 7624/MUM/2005

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2114 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 13-05-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 30-12-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KESHAV SAXENA
• Assessee Lawyers: D M SHAH
• Keywords: Business income; Corroborative evidences; Revised return
• Section: 143(3); 133A

Judgement Text

ITA NO. 7624/MUM/05 ASSESSMENT YEAR 2002- 03 PAGE 1 OF 8 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI H BENCH, MUMBAI BEFORE SHRI PRAMOD KUMAR (ACCOUNTANT MEMBER) AND SHRI V DURGA RAO (JUDICIAL MEMBER) ITA NO. 7624/MUM/05 ASSESSMENT YEAR 2002-03 ASSTT COMMISSIONER OF INCOME TAX .APPELLAN T CIRCLE 12 (3), MUMBAI VS. ORIENT TRANSPORT CO. . RESPONDENT 1/10, BOTAWALA BUILDING HORNIMAN CIRCLE, FORT, MUMBAI 400 001 APPELLANT BY : SHRI KESHAV SAXENA RESPONDENT BY : SHRI D M SHAH O R D E R PRAMOD KUMAR: 1. THIS IS AN APPEAL FILED BY THE ASSESSING OFFICER IS DIRECTED AGAINST THE ORDER DATED 5 TH OCTOBER 2005 PASSED BY THE CIT(A) IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX A CT, 1961, FOR THE ASSESSMENT YEAR 2002-03. 2. THE SHORT ISSUE THAT WE ARE REQUIRED TO ADJUDICA TE IN THIS APPEAL IS WHETHER OR NOT THE CIT(A) WAS JUSTIFIED IN HOLDING THAT AN EXPENDITURE OF ITA NO. 7624/MUM/05 ASSESSMENT YEAR 2002- 03 PAGE 2 OF 8 32.5% IS TO BE ALLOWED AGAINST SUPPRESSED INCOME FR OM AGENCY COMMISSION SURRENDERED DURING THE SURVEY PROCEEDING S. 3. LEARNED REPRESENTATIVES FAIRLY AGREE THAT THE OU TCOME OF THIS APPEAL WILL DEPEND ON THE OUTCOME OF ASSESSING OFFICERS A PPEAL FOR THE ASSESSMENT YEAR 2001-02, WHICH WAS HEARD ALONGWITH THIS APPEAL AND WHEREIN IDENTICAL ISSUE IS ALSO INVOLVED. VIDE OUR ORDER OF EVEN DATE, WE HAVE DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSING OFFICER AND OBSERVED AS FOLLOWS: 3. WE WILL FIRST TAKE UP THE GRIEVANCE AGAINST GRAN TING DEDUCTION @ 32.5% FROM SUPPRESSED AGENCY CHARGES. TO ADJUDICATE ON THIS GRIEVANCE, A FEW MATERIAL FACTS NEED TO BE NOTED. T HE ASSESSEE BEFORE US IS A PARTNERSHIP FIRM CARRYING ON THE BUSINESS O F CLEARING AND FORWARDING AGENTS. IT HAS MAINTAINED REGULAR BOOKS OF ACCOUNTS WHICH ARE DULY AUDITED. THE ASSESSEE WAS SUBJECTED TO A S URVEY PROCEEDINGS, UNDER SECTION 133A OF THE ACT, ON 10 TH DECEMBER, 2002. DURING THE COURSE OF SURVEY PROCEEDINGS, THE SURVEY PARTY ALSO EXAMINED THE BOOKS OF ACCOUNTS, AS MAINTAINED ON THE COMPUTER, V IS--VIS THE PROFITS DISCLOSED IN THE PROFIT AND LOSS ACCOUNT ACCOMPANYI NG THE INCOME TAX RETURN. IT WAS FOUND THAT THE ASSESSEE HAD SHOWN AG ENCY COMMISSION OF RS 1,06,25,879, AS ITS BUSINESS RECEIPT, AND DIFFER ENCE OF RECOVERY OF RS 3,99,199, AS ITS INCOME ON ACCOUNT OF EXCESS REIMBU RSEMENT OF EXPENDITURE RECEIVED BY THE ASSESSEE. THE NET BUSIN ESS INCOME DISCLOSED BY THE ASSESSEE WAS, HOWEVER, A MEAGER AM OUNT OF RS 1,72,841. ON A PERUSAL OF RECORDS, IT WAS FOUND TH AT THE ASSESSEE HAD RAISED AGENCY COMMISSION BILLS, AGGREGATING TO RS 1 ,77,01,202, TO ITS VARIOUS CUSTOMERS. OUT OF THE AMOUNT SO CREDITED, THE ASSESSEE HAD TRANSFERRED A SUM OF RS 59,81,171 TO SUNDRY EXPENSE S ACCOUNT AND ALSO RS 6,24,128 TO SERVICE CHARGES ON AGENCY COMMISSION ACCOUNT. THE NET AMOUNT SHOWN AS AGENCY CHARGES RECEIVED WAS SHOWN O NLY AT RS 1,06,25,879. THE RECONCILIATION FOR THE SAME WAS D RAWN UP AS FOLLOWS: GROSS BILLING DURING THE YEAR 1,77,01,202 ADD: OTHER AGENCY 650 SUB TOTAL 1,77,01,852 LESS : SERVICE CHARGES RECEIVED (-) 6,24,1 28 ITA NO. 7624/MUM/05 ASSESSMENT YEAR 2002- 03 PAGE 3 OF 8 : CREDIT NOTES ISSUED (-) 4,79,673 GROSS AGENCY COMMISSION RECEIVED 1,66,07,050 LESS : EXPENSES INCURRED ON BEHALF OF CLIENTS 59,81,171 NET AGENCY COMMISSION IN P&L ACCOUNT 1,06,25,879 4. THE ASSESSING OFFICER NOTED THAT WHILE THE ASSES SEE HAD THUS CLAIMED DEDUCTION OF RS 59,81,171, NO BILLS AND VOU CHERS WERE AVAILABLE AT THE TIME OF SURVEY TO SUPPORT THE ABOVE CLAIM O F DEDUCTION OF RS 59,81,171. IT WAS ALSO NOTED THAT DURING THE SURVEY PROCEEDINGS, THE ASSESSEE DID HAVE SUPPORTING VOUCHERS FOR RS 5,45,1 0,463 BUT THOSE WERE THE EXPENSES INCURRED ON BEHALF OF THE CLIENTS WHICH WERE SEPARATELY DEBITED TO THE RESPECTIVE CLIENTS. EVEN OUT OF THOSE EXPENSES, THE ASSESSEE HAD SURRENDERED A SUM OF RS 14,44,527 ON ACCOUNT OF NON AVAILABILITY OF THIRD PARTY VOUCHERS TO SUPPORT THE EXPENSES SO DEBITED. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE DI D NOT TRANSFER THE ABOVE AMOUNT TO THE ACCOUNT OF EXPENSES INCURRED ON BEHALF OF CLIENTS, AND THAT DURING THE COURSE OF SURVEY, THE ASSESSEE WAS ASKED TO PRODUCE THE BILLS OF SUNDRY EXPENSES/ EXPENSES CLAI MED ON BEHALF OF THE CLIENTS AMOUNTING TO RS 59,81,171 FOR VERIFICATION, BUT THE ASSESSEE DID NOT PRODUCE THE SAME. IT WAS ALSO NOTED THAT IN THE STATEMENT RECORDED AT THE TIME OF SURVEY PROCEEDINGS, MR KIRA N P DALAL (I.E. PARTNER) HAS OFFERED THE AMOUNT OF DIFFERENCE IN AG ENCY CHARGES OF RS 59,81,171 AS ADDITIONAL INCOME BUT THE ASSESSEE H AS OFFERED ONLY THE AMOUNT OF RS 37,38,231 IN HIS REVISED RETURN AS DIF FERENCE IN AGENCY BILLING STATING THAT THE ABOVE MATTER WAS DISCUSSED WITH ADDITIONAL COMMISSIONER OF INCOME TAX AND HE AGREED TO THE ABO VE AMOUNT . THE ASSESSING OFFICER SAW NO GOOD REASONS TO ACCEPT THE DISCLOSURE AT RS 37,38,231 WHEN ADDITIONAL INCOME ON ACCOUNT OF SUPP RESSION OF AGENCY COMMISSION WAS FOUND TO BE RS 59,81,171. HE THUS RE JECTED THE STAND OF THE ASSESSEE AND PROCEEDED TO TAX ENTIRE AMOUNT OF SUPPRESSED AGENCY BILLING OF RS 59,81,171 AS AGAINST RS 37,28,231 DIS CLOSED BY THE ASSESSEE. AGGRIEVED, INTER ALIA, BY THE ADDITION S O MADE BY THE ASSESSING OFFICER, ASSESSEE CARRIED THE MATTER IN A PPEAL BEFORE THE CIT(A). THE CIT(A) OBSERVED THAT IT APPEARS THAT AF TER THE SURVEY WAS COMPLETED, THE ASSESSEE, ALONGWITH ITS CONSULTANTS, HAD A MEETING WITH THE ADDITIONAL COMMISSIONER OF INCOME TAX AND THE A SSESSING OFFICER WAS ALSO PRESENT IN THIS MEETING. IT WAS FURTHER OB SERVED THAT DURING THESE MEETINGS, IT SEEMS TO HAVE TRANSPIRED BETWEEN THE APPELLANT AND ITA NO. 7624/MUM/05 ASSESSMENT YEAR 2002- 03 PAGE 4 OF 8 THE DEPARTMENT OFFICIALS THAT THE EXPENSES TO THE T UNE OF 37.5% OF THE AGENCY COMMISSION OF RS 59,81,171 WOULD BE FAIR AN D REASONABLE EXPENDITURE. HE THEN REFERRED TO SUBMISSIONS FILE D BY THE ASSESSEE BEFORE THE ADDITIONAL COMMISSIONER WHICH BROADLY SU GGEST THAT THERE ARE CERTAIN EXPENSES, WHICH THE ASSESSEE HAS TO INC UR AND WHICH ARE NOT SEPARATELY REIMBURSED BY THE CUSTOMERS, THAT TH E ASSESSEE HAS TO BEAR TO EARN THE SAID AGENCY COMMISSION, AND SUCH E XPENSES CONSTITUTE ABOUT 35% TO 40% OF THE AGENCY CHARGES. A NOTE WAS ALSO TAKEN OF THE ASSESSEES SUBMISSION THAT THERE ARE OCCASIONS WHEN ASSESSEE HAS TO INCUR CERTAIN EXPENSES, OVER AND ABOVE THE NORMAL E XPENSES, WHICH ARE NOT REIMBURSED BY THE CUSTOMERS. THESE NON REIMBUR SABLE EXPENSES CONSTITUTE INBUILT COST OF EARNING THE AGENCY COMMI SSION. THE CIT(A) THUS CONCLUDED THAT THUS, AFTER GOING THROUGH THE FACTS AND CONSIDERING THE NATURE OF BUSINESS OF THE APPELLAN T, IT CANNOT BE DENIED THAT THAT THE APPELLANT HAS TO INCUR CERTAIN EXPENS ES WHICH ARE NOT REIMBURSED BY THE CLIENTS AND THAT THE ASSESSEE H AS TO BEAR THESE EXPENSES ITSELF AND DEBIT AGAINST ITS AGENCY COMMIS SION. THE CIT(A) NOTED THAT THE ALLEGED DIFFERENCE IN AGENCY COMMIS SION WAS NOT AN UNDISCLOSED AGENCY COMMISSION AND THAT IT WAS FUR THER SUBMITTED THAT THE SAID AGENCY COMMISSION OF RS 59,81,171 WAS TAKEN INTO EXPENSE ACCOUNT AND AGAINST THIS THE APPELLANT IS N OW CLAIMING EXPENDITURE @ 37.5%. THE CIT (A) ALSO OBSERVED THA T THE SAID CLAIM WAS MADE BEFORE THE ASSESSING OFFICER DURING THE AS SESSMENT PROCEEDINGS AS WELL AS BEFORE THE ADDL CIT AS WELL . THE CIT(A) THEN PROCEEDED TO UPHOLD THE CLAIM OF DEDUCTION @ 37.5% BY MAKING FOLLOWING INTERESTING OBSERVATIONS : AFTER VERIFYING THE FACTS OF THE CASE, I AM OF THE VIEW HAT THE GROSS DIFFERENCE IN AGENCY COMMISSION AMOUNTING TO RS 59,81,171 CANNOT BE TAXED AS A WHOLE. IT IS CERTAIN THAT THE APPELLANT MUST HAVE INCURRED EXPENDITURE AGAINST TH IS RECEIPT, UNDER VARIOUS HEADS WHICH THE ASSESSEE MAY NOT BE ABLE TO PROVE WITH THIRD PARTY EVIDENCES. NONETHELE SS, EXPENSES HAVE BEEN INCURRED. THE AR OF THE APPELLAN T HAS ENUMERATED A NUMBER OF HEADS UNDER WHICH THE APPELL ANT HAS TO INCUR EXPENDITURE OF ITS OWN TO EARN THE AGENCY COMMISSION. THESE HEADS OF EXPENSES HAVE BEEN ELABO RATELY DISCUSSED IN THE PRECEDING PARAGRAPHS OF THIS ORDER . THE DETAILS OF SUCH EXPENSES ARE SUPPORTED BY SELF MADE VOUCHERS WHICH CANNOT BE TOTALLY IGNORED. A DISCLOSURE UNDER SURVEY HAS TO SUPPORTED BY THE EVIDENCES THAT CERTAIN INCO ME HAS NOT BEEN OFFERED FOR TAXATION AND SUCH INCOME HAS TO BE ITA NO. 7624/MUM/05 ASSESSMENT YEAR 2002- 03 PAGE 5 OF 8 DETERMINED AFTER TAKING INTO ACCOUNT EXPENSES INCUR RED TO EARN SUCH INCOME. IN THE INSTANT CASE, THE DIFFEREN CE IN AGENCY COMMISSION WORKED OUT TO RS 59,81,171. EXPEN SES AGAINST THIS, THEREFORE, HAVE TO BE TAKEN INTO ACCO UNT. THE ASSESSEE CLAIMS THAT HE HAS INCURRED 37.5% TO EARN SUCH INCOME. IN ORDER TO MEET THE ENDS OF JUSTICE, IT WO ULD BE FAIR AND JUST IF AN EXPENDITURE OF 32.5% IS ALLOWED FOR EARNING THE DIFFERENCE OF AGENCY COMMISSION OF RS 59,81,171 WHI CH COMES TO RS 19,43,880 AGAINST THE APPELLANTS CLAIM OF RS 22,42,940. THUS AN ADDITION OF RS 2,99,060 OUT OF RS 22,42,940 IS RETAINED AND THE REMAINING ADDITION OF RS 19,43,880 IS DELETED. 5. AGGRIEVED BY THE RELIEF SO GIVEN BY THE CIT(A), THE ASSESSING OFFICER IS IN APPEAL BEFORE US. 6. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTUAL MATRIX OF THE CA SE AS ALSO THE APPLICABLE LEGAL POSITION. 7. EVEN A CASUAL READING OF THE ORDERS OF THE AUTHO RITIES BELOW AND THE STATEMENT OF FACTS FILED BEFORE THE CIT(A) WOUL D SHOW THAT IT WAS NEVER THE CASE OF THE ASSESSEE THAT THE ASSESSEE HA D ANY SUPPORTING EVIDENCES, SELF MADE OR WHATEVER, TO SUPPORT THE CL AIM OF DEDUCTION @ 37.5% OF THE OUT OF AGENCY CHARGES CONSTITUTING SUP PRESSED INCOME. AS A MATTER OF FACT WHAT IS REFERRED TO AS SUPPRESSED AGENCY CHARGES INCOME IS NOTHING BUT A CLAIM OF EXPENDITURE WHICH THE ASSESSEE COULD NOT SUBSTANTIATE. IT WAS NOT A NEW INCOME DISCOVERE D DURING THE SURVEY. WHAT WAS DISCOVERED DURING THE SURVEY WAS T HAT THE ASSESSEE WAS CLAIMING A DEDUCTION FROM THE GROSS AGENCY BILL ING, ON PURELY ADHOC BASIS AND FOR WHICH NO SUPPORTING EVIDENCE WA S AVAILABLE. WHEN THE ASSESSEE COULD NOT FIND ANY EXPLANATION FOR THI S DEDUCTION, AT THE TIME OF SURVEY OR EVEN DURING THE ASSESSMENT PROCEE DINGS, THIS INCOME WAS ADDED BACK TO THE RETURNED INCOME. THE CIT(A) S FINDINGS ABOUT SELF MADE VOUCHERS ARE WHOLLY DEVOID OF ANY BASIS A T ALL; IT HAS NEVER BEEN THE CASE OF THE ASSESSEE THAT THE ASSESSEE HAS ANY VOUCHERS TO SUPPORT THE EXPENSES CLAIMED. HAD THAT BEEN THE CA SE, THERE WOULD HAVE BEEN SPECIFIC EXPLANATION ABOUT BREAK UP OF EX PENSES, RATHER THAN VAGUE EXPLANATIONS ABOUT THE EXPENSES THAT THE ASSE SSEE IS REQUIRED TO INCUR, AND THE QUANTIFICATION OF EXPENSES WOULD HA VE BEEN IN MONETARY ITA NO. 7624/MUM/05 ASSESSMENT YEAR 2002- 03 PAGE 6 OF 8 TERMS RATHER THAN PERCENTAGE TERMS. THERE ARE CA TEGORICAL FINDINGS IN THE ASSESSMENT ORDER THAT DESPITE SPECIFIC REQUI SITION TO PRODUCE EVIDENCES TO SUPPORT CLAIM OF DEDUCTION OF RS 59,81 ,171, THE ASSESSEE DID NOT DO SO. IN THE LENGTH STATEMENT OF FACTS, AS ALSO IN ANY PLEADINGS BEFORE THE CIT(A), THIS FINDING HAS NOT EVEN BEEN C HALLENGED. ON THESE FACTS, AND IN THE LIGHT OF THE ABOVE DISCUSSIONS, W E ARE OF THE CONSIDERED VIEW THAT THE CIT(A) WAS CLEARLY IN ERRO R IN MAKING HIS OBSERVATIONS ABOUT THE SELF MADE VOUCHERS, WHICH, A CCORDING TO HIM, COULD NOT BE IGNORED. 8. WE HAVE NOTED THAT IT IS NOT THE CASE THAT ENTIR E INCOME FROM AGENCY CHARGES HAS BEEN TREATED AS INCOME OF THE AS SESSEE ON THE GROSS BASIS. AS PER THE AUDITED BOOKS OF ACCOUNTS OF THE ASSESSEE, THE ASSESSEE HAS EARNED A NET PROFIT OF ONLY RS 1,72,8 41 ON GROSS BILLING TO THE CUSTOMERS AGGREGATING TO RS 1,77,01,202. EVEN AFTER TAKING INTO ACCOUNT THE SUPPRESSED AGENCY COMMISSION OF RS 59, 81,171, THE PROFIT FROM AGENCY COMMISSION WORKS OUT TO LESS THAN 35%. THERE IS NOTHING UNUSUAL ABOUT SUCH A RATE OF PROFIT IN A SERVICE IN DUSTRY LIKE THAT OF SHIPPING AND FORWARDING AGENT, PARTICULARLY WHEN TH E ASSESSEE AUDITED BOOKS OF ACCOUNTS SHOW THE SAME AND THERE IS NO EVI DENCE OF ANY OTHER EXPENDITURE INCURRED BY THE ASSESSEE. THE CIT(A) W AS THUS ALSO IN ERROR IN OBSERVING THAT EXPENSES WILL HAVE TO BE AL LOWED AGAINST THE SUPPRESSED AGENCY COMMISSION OF RS 59,81,171. IT WA S NOT AN INCOME BUT A DEDUCTION WHICH THE ASSESSEE HAD CLAIMED FROM HIS ACCOUNTED RECEIPTS AND FOR WHICH THE ASSESSEE HAD NO SUPPORTI NG EVIDENCE. IT WAS ALSO NOT DONE IN A TRANSPARENT MANNER IN AS MUCH AS INSTEAD OF DISCLOSING IT AS AN EXPENDITURE IN THE PROFIT AND L OSS ACCOUNT, THE AMOUNT WAS REDUCED FROM THE GROSS BILLING OF AGENCY COMMISSION. ONCE A DEDUCTION IS CLAIMED, THE ONUS IS ON THE ASS ESSEE TO SUBSTANTIATE THE CLAIM. LEARNED COUNSEL FOR THE ASSESSEE HAS AD DRESSED US AT LENGTH ON WHAT KIND OF NATURE OF EXPENSES COULD PROBABLY B E COVERED BY THIS CLAIM BUT THESE GENERALIZED SUBMISSIONS, WITHOUT AN Y DETAILS OF THE SPECIFIC EXPENSES AT ALL, DO NOT IMPRESS US. HIS B ASIC CLAIM IS THAT WHILE THE ASSESSEE IS ENTITLED FOR REIMBURSEMENT FROM CUS TOMERS IN RESPECT OF SOME OF THE EXPENDITURE, THERE ARE CERTAIN EXPENDIT URE WHICH ARE NOT SPECIFICALLY REIMBURSED BY THE ASSESSEE. NONE CAN D ISPUTE THE PROPOSITION THAT TO EARN ANY INCOME CERTAIN EXPENDI TURE HAS TO BE INCURRED BUT THE ASSESSEE HAS INCURRED FAIR AMOUNT OF EXPENDITURE FOR EARNING THE GROSS BILLING OF RS 1,77,01,202, AS IT S PROFIT AND LOSS ACCOUNT SHOWS A PROFIT OF ONLY RS 1,72,841, AND THE RE IS NOTHING TO EVEN QUANTIFY IN MONETARY TERMS, LEAVE ASIDE ESTABL ISH, ANY EXPENSES WHICH ARE CLAIMED TO HAVE BEEN INCURRED OUTSIDE ITS AUDITED BOOKS OF ACCOUNTS. ITA NO. 7624/MUM/05 ASSESSMENT YEAR 2002- 03 PAGE 7 OF 8 9. LEARNED COUNSEL FOR THE ASSESSEE HAS PLACED RELI ANCE ON ORDER PASSED BY A COORDINATE BENCH IN THE CASE OF DCIT V S SAMTA MARINE KAKINADA (18 SOT 135) BUT WE FIND THAT SO FAR THE ABOVE ISSUE IS CONCERNED, THE RELEVANT FACTS ARE NOT IN PARI MATER IA INASMUCH , IN THE SAID CASE, THERE WAS NO FINDING THAT THE ASSESSEE H AD SUPPRESSED ANY AGENCY EARNINGS BY SHOWING LESSER AGENCY EARNINGS I N THE PROFIT AND LOSS ACCOUNT AND ATTRIBUTING THE DIFFERENCE TO THE ADHOC CLAIM FOR EXPENSES. WHEN IT WAS POINTED OUT TO THE LEARNED CO UNSEL, HE ONLY POINTED OUT THAT THE SAID CASE ALSO DEALT WITH THE ISSUE OF TAXABILITY ON ACCOUNT OF AGENCY DIFFERENCE. THAT DOES NOT, HOWEVE R, REALLY MATTER BECAUSE IT IS NOT THE DESCRIPTION BUT TRUE NATURE O F THE ADDITION WHICH IS RELEVANT. ADMITTEDLY, THE TRUE NATURE OF DISALLO WANCE IS DIFFERENCE IN THE CASE BEFORE US. THE ASSESSEE THUS DERIVES NO AS SISTANCE FROM THE AFORESAID DECISION OF THE COORDINATE BENCH. 10. FOR THE REASONS SET OUT ABOVE, WE VACATE THE RE LIEF GRANTED BY THE CIT(A) BY DIRECTING THE ASSESSING OFFICER TO GRANT DEDUCTION @ 37.5% , ON ACCOUNT OF EXPENSES INCURRED TO EARN THE SUPPRES SED AGENCY COMMISSION. THE ORDER OF THE ASSESSING OFFICER IS RESTORED ON THIS ISSUE. 4. WE SEE NO REASONS TO TAKE ANY OTHER VIEW OF THE MATTER THAN THE VIEW SO TAKEN BY US IN ASSESSEES OWN CASE. RESPECT FULLY FOLLOWING THE SAME, WE VACATE THE RELIEF GRANTED BY THE CIT(A) AN D RESTORE THE ORDER OF THE ASSESSING OFFICER ON THIS ISSUE 5. IN THE RESULT, THE APPEAL IS ALLOWED IN THE TER MS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT TODAY ON 14 TH DAY OF MAY, 2010. SD/- SD/- ( V D RAO) (PRAMOD KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; 14 TH DAY OF MAY, 2010. JANHAVI ITA NO. 7624/MUM/05 ASSESSMENT YEAR 2002- 03 PAGE 8 OF 8 COPY FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT , MUMBAI 4. THE COMMISSIONER (APPEALS) , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE - BENCH, MUMB AI 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, MUMBAI