M/s Venus Apparels, Ludhiana V. ITO, Ludhiana

ITA 816/CHANDI/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9203 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Next Hearing Date: 16-06-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 04-11-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Additional evidence; Question of law
• Section: 143(3); 37(1); 37; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 816/CHD/2015 (ASSESSMENT YEAR : 2011-12) M/S VENUS APPARELS, VS. THE INCOME TAX OFFICER, E-10, 9786, ANAND VIHAR, WARD-III(3), BAHADUR KE ROAD, LUDHIANA. LUDHIANA. PAN: AAIFV2593B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PARIKSHIT AGGARWAL RESPONDENT BY : SHRI S.K. MITTAL, DR DATE OF HEARING : 03.08.2016 DATE OF PRONOUNCEMENT : 10.08.2016 O R D E R THIS APPEAL BY THE ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-1, LUDHIANA DATED 28.9.2015 FOR ASSESSMEN T YEAR 2011-12, CHALLENGING THE ADDITION UNDER SECTIONS 37 (1) AND 40(A)(IA) OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT) AMOUNTING TO RS.47,52,247/- ON ACCOUNT OF COMMISSIO N PAID TO FOREIGN AGENTS. 2. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, T HE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE FIRM H AD DEBITED A SUM OF RS.47,52,247/- ON ACCOUNT OF COMMI SSION. THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS OF TH E PARTIES TO WHOM COMMISSION HAD BEEN PAID AND IT WAS ASKED A S TO 2 WHETHER THE ASSESSEE HAD DEDUCTED TDS ON THE PAYMEN T OF COMMISSION. THE ASSESSEE WAS ALSO ASKED THAT THE AGREEMENT WITH SCART PALACE TRADING (COMMISSION AGE NT) WAS EXECUTED ON 1.1.2011 BUT SOME OF THE GOODS HAVE BEE N SUPPLIED TO THE PURCHASER AS PER DIFFERENT INVOICE BILLS PRIOR TO THE DATE OF AGREEMENT. THE ASSESSEE SUBMITTED THAT THE GOODS WERE SUPPLIED ON ORAL AGREEMENT OR BOOKING OF ORDER BY THE AGENT. THE ASSESSEE FURTHER SUBMITTED THAT DURING THE YEAR, THE ASSESSEE HAS PAID FOREIGN COMMISSION TO ITS AGENTS RESIDING AND OPERATING OUTSIDE INDIA. NO CO MMISSION HAS BEEN PAID TO ANY PERSON EITHER IN INDIA OR HAVI NG ANY WORK PLACE OR PE IN INDIA. THE AMOUNT OF COMMISSIO N HAVE BEEN DULY MENTIONED IN THE SALE INVOICES RAISED BY THE ASSESSEE. SINCE THE COMMISSION HAS BEEN PAID TO IT S NON- RESIDENT AGENTS HAVING BUSINESS OPERATIONS OUTSIDE THE TERRITORY OF INDIA, NO TAX AT SOURCE ON SUCH PAYMEN T OF COMMISSION WAS REQUIRED TO BE DEDUCTED. THE COMMIS SION IS PAID OUTSIDE INDIAN TERRITORY AND IS PAID BY ITS BUYERS DIRECTLY TO THE COMMISSION AGENTS AND REMITTED THE BALANCE SALE AMOUNT TO THE ASSESSEE. NO TDS WAS, THEREFORE , REQUIRED TO BE DEDUCTED. SECTION 195 OF THE ACT SP EAKS THAT UNLESS THE INCOME IS LIABLE TO TAX IN INDIA, THERE IS NO OBLIGATION TO DEDUCT TAX. NO INCOME ACCRUES OR ARI SES TO THE FOREIGN AGENTS, THEREFORE, NO TDS IS REQUIRED TO BE DEDUCTED. THE ASSESSEE IS AN EXPORTER OF GARMENTS AND SALES A RE BEING MADE ON THE BASIS OF ORDERS PROCURED BY THE COMMISS ION AGENTS, WHO WERE HAVING THEIR PERMANENT ESTABLISHME NTS OUTSIDE INDIA. THE COMMISSION AGENTS WORKED RIGHT FROM THE 3 PROCUREMENT OF ORDER, COLLECTING SAMPLES, MAKING AN Y ALTERATIONS, INSPECTIONS, ETC. AND LOOKED AFTER EVE N REMISSION OF PAYMENTS FROM OUTSIDE INDIA. THE SALE PRICE IS RECEIVED BY THE ASSESSEE THROUGH PROPER BANKING CHA NNEL AND THE ASSESSEE RECEIVED THE AMOUNT AFTER DEDUCTIO N OF COMMISSION AMOUNT. THE ASSESSING OFFICER, HOWEVER , HELD THAT THE ASSESSEE HAD FAILED TO DISCHARGE ITS ONUS TO ESTABLISH THE GENUINENESS OF THE EXPENSES BOOKED UN DER THE HEAD COMMISSION AS :- I) NO PROOF HAS BEEN GIVEN BY THE ASSESSEE OF THE ACTUAL PAYMENTS MADE TO THE COMMISSION AGENT BY BUYER. II) THE ASSESSEE HAS FAILED TO GIVE THE DETAILS OF SERVICES RENDERED BY THE COMMISSION AGENT. III) THE ASSESSEE HAS FAILED TO PROVIDE THE COPY OF ANY WORK ORDER MENTIONING THE AMOUNT OF COMMISSION TO BE PAID. 3. THE ASSESSING OFFICER, THEREFORE, HELD THAT THE ASSESSEE DID NOT ESTABLISH THAT THE COMMISSION WAS GENUINELY INCURRED WHOLLY AND EXCLUSIVELY FOR THE P URPOSE OF BUSINESS AND ACCORDINGLY, DISALLOWED THE SAME UNDER SECTION 37(1) OF THE ACT. FURTHER, THE ASSESSING O FFICER ON PERUSAL OF THE DETAILS NOTED THAT THE COMMISSION IS STATED TO BE PAID TO VARIOUS NON-RESIDENTS BUT THE ASSESSEE H AD NOT DEDUCTED TDS ON THE SAME. THE ASSESSING OFFICER RE FERRING THE PROVISIONS OF SECTION 195(1), SECTION 5 AND SEC TION 9 4 ALONGWITH BOARD CIRCULAR, HELD THAT SINCE NO TDS HA S BEEN DEDUCTED ON THE PAYMENT OF COMMISSION, THEREFORE, T HE DISALLOWANCE WAS ALSO MADE UNDER SECTION 40(A)(IA) OF THE ACT R.W.S. 195(1) OF THE ACT. 4. THE ASSESSEE CHALLENGED THE ADDITION BEFORE THE LEARNED CIT (APPEALS) AND WRITTEN SUBMISSION OF THE ASSESSEE IS REPRODUCED IN THE APPELLATE ORDER, IN W HICH THE ASSESSEE REITERATED THE SAME SUBMISSION AND ALSO SU BMITTED THAT THE ASSESSEE FIRM IS EXPORTING GOODS WHICH ARE PURCHASED FROM INDIA AS PER THE ORDERS BOOKED BY OV ERSEAS AGENTS/CONSIGNEES, NAMELY, SCARF PALACE TRADING LLC AND SILVER ZONE TRADING LLC, BOTH THE COMPANIES ARE FRO M DUBAI AND THE FOREIGN AGENTS CHARGED THE COMMISSION ON TH E GOODS SOLD IN DUBAI AND REMIT THE BALANCE AMOUNT TO THE CONSIGNORS IN INDIA THROUGH THE BANKING CHANNEL. THEREFORE, NO TDS IS REQUIRED TO BE DEDUCTED. THE ASSESSEE RELIED UPON THE DECISION OF THE HON'BLE SUPREME COU RT IN THE CASE OF G.E. INDIA TECHNOLOGY CENTRE PVT. LTD. VS. CIT, 327 ITR 456. THE ASSESSEE ALSO RELIED UPON THE DEC ISION OF THE DELHI HIGH COURT IN THE CASE OF CIT VS. EON TE CHNOLOGY (P) LTD., 246 CTR 40 AND OTHER DECISIONS IN SUPPORT OF THE CONTENTION. 5. THE LEARNED CIT (APPEALS), HOWEVER, DID NOT ACC EPT THE CONTENTION OF THE ASSESSEE AND NOTED THAT THE A SSESSEE HAS NOT FURNISHED THE DETAILS OF SERVICES RENDERED BY THE COMMISSION AGENTS AND THAT THE AGREEMENT WAS EXECUT ED ON 1.1.2011 BUT GOODS HAVE BEEN SUPPLIED TO THE PURCHA SER 5 PRIOR TO THAT. THE ASSESSEE ALSO FAILED TO DISCHAR GE ITS ONUS TO ESTABLISH THE GENUINENESS OF THE EXPENSES AND NO DETAILS OF SERVICES RENDERED BY THE COMMISSION AGENTS HAVE BEEN FILED. THEREFORE, THE ASSESSEE FAILED TO PROVE THA T THE EXPENSES WERE INCURRED WHOLLY AND EXCLUSIVELY FOR T HE PURPOSE OF BUSINESS. THEREFORE, ADDITION UNDER SEC TION 37(1) OF THE ACT WAS CONFIRMED. THE LEARNED CIT (A PPEALS) CONSIDERING THE PROVISIONS OF TDS ALSO CONFIRMED T HE ORDER OF THE ASSESSING OFFICER HOLDING THAT SINCE NO TDS HAS BEEN DEDUCTED ON THE COMMISSION PAYMENT, THEREFORE, ADDI TION WAS CONFIRMED UNDER SECTION 195(1) R.W.S. 40(A)(IA) OF THE ACT AND APPEAL OF THE ASSESSEE HAS BEEN DISMISSED. 6. I HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. HE HAS REFERRED TO COPIES OF THE INVOICES FOR EXPORTS, WHI CH ARE FILED IN THE PAPER BOOK. PB-92 IS ASSESSMENT ORDER FOR ASSESSMENT YEAR 2012-13, IN WHICH THE ASSESSING OFF ICER DID NOT MAKE ADDITION ON ACCOUNT OF COMMISSION AND ACCE PTED THE CONTENTION OF THE ASSESSEE THAT NO TDS IS REQUI RED TO BE DEDUCTED UNDER SECTION 195(1) OF THE ACT. PB-56 T O 83 ARE BANK CERTIFICATES FOR EXPORT AND REALIZATION, IN WH ICH NO COMMISSION HAVE BEEN PAID AND PB-84 TO 91 ARE BANK CERTIFICATES IN WHICH COMMISSION HAVE BEEN DEDUCTED . THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN ALL THE BILLS COMMISSION HAVE NOT BEEN DEDUCTED. HE HAS FI LED CONFIRMATION FROM M/S SILVER ZONE TRADING LLC AND S CARF 6 PALACE TRADING LLC AT PB-97 AND 98 TO PROVE THE COMMISSION PAYMENT. HOWEVER, HE HAS ADMITTED, THES E CONFIRMATIONS WERE NOT FILED BEFORE THE AUTHORITIES BELOW. THE LEARNED COUNSEL FOR THE ASSESSEE BY REFERRING T O THE INVOICES SUBMITTED THAT THE NAMES OF COMMISSION AGE NTS ARE MENTIONED IN THE INVOICES. THEREFORE, THE ASSESSEE PROVED THE GENUINENESS OF THE COMMISSION PAID TO THE COMMI SSION AGENTS, NO ADDITION UNDER SECTION 37(1) OF THE ACT BE MADE. FURTHER COMMISSION HAVE BEEN PAID TO NON-RESIDENT COMMISSION AGENTS WHO DID NOT HAVE ANY BUSINESS CONNECTION IN INDIA AND THEY HAVE NO PE IN INDIA AN D THAT NO INCOME ACCRUED IN THEIR HANDS IN INDIA, THEREFOR E, THEIR INCOME IS NOT TAXABLE IN INDIA AND AS SUCH, NOT LIA BLE TO TDS. HE HAS RELIED UPON THE JUDGMENT OF HON'BLE MA DRAS HIGH COURT IN THE CASE OF CIT VS. FAIZAN SHOES PVT . LTD., 89 CCH 213, HON'BLE DELHI HIGH COURT IN THE CASE OF CIT V S. ANGELIQUE INTERNATIONAL LTD., 359 ITR 9 AND IN THE CASE OF CIT VS. EON TECHNOLOGY PVT. LTD., 343 ITR 366 AND UNREPORTED DECISION OF PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. M/S RAM GOPAL & SONS IN ITA NO.214 OF 2014 DATED 29.7.2015 FOR THE PROPOSITION THAT WHEN PAYMENTS ARE MADE TO NON-RESIDENTS AND PAYMENTS WER E REMITTED ABROAD DIRECTLY, NO TAX IS DEDUCTIBLE UNDE R SECTION 195(1) OF THE ACT. 7. ON THE OTHER HAND, THE LEARNED D.R. RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 7 8. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE ASSESSING OFFICER DISALLOWED THE COMMISSION PAYMENT S TO NON RESIDENTS, FIRSTLY UNDER SECTION 37(1) OF THE A CT. ACCORDING TO SECTION 37(1) OF THE ACT, THE ONUS WOU LD BE UPON THE ASSESSEE TO PROVE THAT SUCH EXPENDITURE HA S BEEN LAID OUT OR EXPENDED WHOLLY OR EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. THE ASSESSING OFFICER NOTED THAT THOUGH THE AGREEMENT WITH COMMISSION AGENT SCARF PALACE TRADIN G HAS BEEN EXECUTED ON 1.1.2011 BUT SOME OF THE GOODS HAV E BEEN SUPPLIED TO THE PURCHASER AS PER INVOICE PRIOR TO T HE DATE OF AGREEMENT. THEREFORE, IT CAST DOUBT UPON THE GENUI NENESS OF THE COMMISSION PAYMENT OR SUPPLY OF THE GOODS TH ROUGH COMMISSION AGENTS OR INVOLVEMENT OF THE COMMISSION AGENTS IN THE TRANSACTIONS CARRIED OUT BY THE ASSESSEE. T HE ASSESSEE EXPLAINED THAT THE COMMISSION AGENTS PROCU RED THE ORDERS, COLLECTED SAMPLES, MADE INSPECTIONS AND ALS O LOOKED AFTER THE REMISSION OF PAYMENTS FROM OUTSIDE INDIA BUT NO EVIDENCE IN SUPPORT OF THIS PLEA HAVE BEEN FILED BE FORE THE AUTHORITIES BELOW. THE ASSESSEE CLAIMED THAT THE COMMISSION AGENTS DID RENDER SERVICES FOR THE ASSES SEE BUT THE ASSESSEE FAILED TO GIVE DETAILS OF SERVICES REN DERED BY THE COMMISSION AGENTS. NO EVIDENCE HAVE BEEN FILED ON RECORD TO PROVE IF COMMISSION AGENTS RENDERED ANY A CTUAL SERVICES FOR THE BUSINESS OF THE ASSESSEE. THE ASS ESSEE FURTHER EXPLAINED THAT THE COMMISSION AGENTS CHARGE D THE COMMISSION ON THE GOODS SOLD IN DUBAI AND REMIT THE BALANCE AMOUNT TO THE ASSESSEE IN INDIA THROUGH BA NKING CHANNEL. IT WOULD MEAN THAT THE ASSESSEE RECEIVED LESSER 8 SALE CONSIDERATION OF THE INVOICES/BILLS WHEN AMOUN T HAVE BEEN TRANSFERRED IN INDIA BUT NO EVIDENCE HAVE BEEN FILED BEFORE THE AUTHORITIES BELOW IF THE ASSESSEE HAS GI VEN ACTUAL PAYMENT TO THE COMMISSION AGENTS OR ACTUAL PAYMENT HAVE BEEN GIVEN BY THE BUYER DIRECTLY TO THE COMMISSION AGENTS. THE ASSESSEE DID NOT FILE ANY CONFIRMATION OF THE COMMISSION AGENTS BEFORE THE AUTHORITIES BELOW. FO R THE FIRST TIME, THE ASSESSEE FILED CONFIRMATIONS IN THE PAPER BOOK WITHOUT MAKING ANY REQUEST FOR ADMISSION OF TH E ADDITIONAL EVIDENCE. THEREFORE, SAME CANNOT BE TAKE N INTO CONSIDERATION AT THE STAGE. IT MAY ALSO BE SEEN FR OM THESE CONFIRMATIONS THAT THE COMMISSION AGENTS MERELY EXP LAINED THE COMMISSION AMOUNTS BUT DID NOT SPECIFY AS TO WH AT SERVICES HAVE BEEN RENDERED BY THE COMMISSION AGENT S FOR THE BUSINESS OF THE ASSESSEE. IN THE ABSENCE OF AN Y DETAILS/EVIDENCE OF SERVICES RENDERED BY THE COMMIS SION AGENTS FOR THE ASSESSEE, NO RELIANCE COULD BE PLACE D ON SUCH CONFIRMATIONS WHICH ARE ALSO ADDITIONAL EVIDENCES I N NATURE. THEREFORE, SAME ARE REJECTED AT THE STAGE. THE LEA RNED COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT IN THE INVOICES, NAMES OF THE COMMISSION AGENTS HAVE BEEN MENTIONED. THIS WILL NOT PROVE ANYTHING TO ALLOW DEDUCTION IN FAVOU R OF THE ASSESSEE. THE LEARNED COUNSEL FOR THE ASSESSEE ALS O REFERRED TO ASSESSMENT ORDER UNDER SECTION 143(3) DATED 20.3 .2015 FOR ASSESSMENT YEAR 2012-13 TO SHOW THAT THE ASSESS ING OFFICER ACCEPTED THE CONTENTION OF THE ASSESSEE THA T WHEN COMMISSION HAVE BEEN PAID TO NON-RESIDENTS OUTSIDE INDIA, PROVISIONS OF SECTION 195(1) OF THE ACT WOULD NOT A TTRACT IN 9 THE CASE OF THE ASSESSEE. HOWEVER, THE ASSESSING OFFICER IN THIS ASSESSMENT ORDER DID NOT CONSIDER THE ISSUE OF ALLOWABILITY OF THE DEDUCTION UNDER SECTION 37(1) O F THE ACT. NO DETAILS OR EVIDENCE HAVE BEEN DISCUSSED OR CONSI DERED BY THE ASSESSING OFFICER IN THIS ASSESSMENT ORDER. TH EREFORE, IN THE ABSENCE OF ANY FINDING RECORDED IN SUBSEQUEN T ASSESSMENT ORDER, NO RELIANCE COULD BE PLACED UPON THE SAME IN FAVOUR OF THE ASSESSEE. 9. THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF DCIT VS. MCDOWELL & CO. LTD., 291 ITR 107 HELD AS U NDER : (II) THAT THE ASSESSING OFFICER DISALLOWED THE COMMISSION PAID TO AGENTS HOLDING THAT PAYMENTS TO AGENTS COULD NOT BE ESTABLISHED AS HAVING BEEN WHOLLY AND EXCLUSIVELY INCURRED FOR THE PURPOSE OF BUSINESS AS THE GOVERNMENT AUTHORITIES CONTROLLED THE ENTIRE TRANSACTIONS. THE COMMISSIONER UPHELD THE ALLOWANCE. FROM THE MATERIALS ON RECORD IT WAS SEEN THAT AT THE RELEVANT POINT OF TIME, THE SALES WERE MADE DIRECTLY BY THE GOVERNMENT AND GOVERNMENT CORPORATIONS. ON THE FACTS AND CIRCUMSTANCES THE ALLOWANCE BY THE TRIBUNAL WAS NOT JUSTIFIED. 10. THE HON'BLE SUPREME COURT IN THE CASE OF GANAPATHY & CO. VS. CIT, 381 ITR 363 HELD AS UNDER : HELD, DISMISSING THE APPEAL, (I) THAT THE ANSWER GI VEN BY THE ASSESSEE IN RESPONSE TO A SPECIFIC QUERY MADE BY TH E ASSESSING OFFICER CALLING FOR EVIDENCE IN SUPPORT OF THE SERV ICES CLAIMED TO HAVE BEEN RENDERED BY U DURING THE YEAR IN QUESTION WAS THAT EXPLANATIONS IN THIS REGARD HAD ALREADY BEEN SUBMIT TED FOR THE PRECEDING ASSESSMENT YEAR, I. E., 1983-84. IT WAS I NCUMBENT ON THE 10 PART OF THE ASSESSEE TO ADDUCE PROOF OF SUCH SERVIC E HAVING BEEN RENDERED DURING THE PERIOD UNDER ASSESSMENT. ADMITT EDLY, THE ASSESSEE DID NOT, IN FACT, OFFER ANY PROOF OF THE S ERVICE RENDERED DURING THE YEAR IN QUESTION. THE TRIBUNAL HAD NOT A DDRESSED ITSELF TO THIS ISSUE. IN SUCH CIRCUMSTANCES, THE HIGH COUR T WAS PERFECTLY JUSTIFIED IN REVERSING THE ULTIMATE CONCLUSION OF T HE TRIBUNAL ON THE BASIS THAT THE FINDINGS AND CONCLUSIONS RECORDED IN THE COURSE OF THE ASSESSMENT PROCEEDINGS FOR THE PRECEDING YEAR C OULD NOT FORECLOSE THE FINDINGS REQUIRED TO BE ARRIVED AT FO R THE ASSESSMENT YEAR IN QUESTION, I.E., 1984-85. 11. THE HON'BLE SUPREME COURT IN THE CASE OF LACHMINARAYAN MADAN LAL VS. CIT, 86 ITR 439 HELD AS UNDER : HELD, THAT THE FINDINGS OF THE TRIBUNAL WERE FINDIN GS OF FACT AND NO QUESTION OF LAW AROSE OUT OF THE TRIBUNAL'S O RDER. THIS WAS A CASE THE ASSESSEE, BY ADOPTING A DEVICE, HAD MA DE IT TO APPEAR THAT THE INCOME WHICH BELONGED TO IT HAD BEEN EARNED BY SOME OTHER PERSON. THE MERE EXISTENCE OF AN AGREEMENT BETWEEN THE ASSE SSEE AND ITS SELLING AGENTS OR PAYMENT OF CERTAIN AMOUNTS AS COMMISSION, ASSUMING THERE WAS SUCH PAYMENT, DOES BIN D THE INCOME-TAX OFFICER TO HOLD THAT THE PAYMENT WAS MADE EXCLUSIVELY AND WHOLLY FOR THE PURPOSE OF THE ASSESSEE'S BUSINESS . ALTHOUGH THERE MIGHT BE SUCH AN AGREEMENT IN EXISTENCE AND T HE PAYMENTS MIGHT HAVE BEEN MADE, IT IS STILL OPEN TO THE INCOME- TAX OFFICER TO CONSIDER THE RELEVANT FACTS AND DETERM INE FOR HIMSELF WHETHER THE COMMISSION SAID TO HAVE BEEN PAID T O THE SELLING AGENTS OR ANY PART THEREOF IS PROPERLY DEDUCT IBLE UNDER SECTION 37 OF THE ACT. 12. IT MAY ALSO BE NOTED HERE FROM THE COPY OF ONE OF THE INVOICES AND BANK CERTIFICATE (PB-48+84) THAT I N THE INVOICE, THE TOTAL SALE CONSIDERATION HAVE BEEN MEN TIONED 11 AND WHEN THE AMOUNT WAS REMITTED IN INDIA, OUT OF T HE TOTAL SALE CONSIDERATION, THE AMOUNT OF ALLEGED COMMISSION/DISCOUNT AND BANK CHARGES, ETC. HAVE BEE N DEDUCTED. IT WOULD, THEREFORE, NOT SPECIFY AS TO W HAT SERVICES HAVE BEEN RENDERED BY THE COMMISSION AGENT S FOR THE ASSESSEE. IT IS ALSO NOT CLEAR THAT ON WHAT HE AD OF ACCOUNT 10% AMOUNT HAVE BEEN DEDUCTED FROM THE SALE CONSIDERATION. NO EVIDENCE FROM THE PURCHASER OF T HE GOODS SENT BY THE ASSESSEE HAVE BEEN PRODUCED ON RECORD F OR PROVING INVOLVEMENT OF THE COMMISSION AGENTS FOR PR OCURING THE GOODS FROM THE ASSESSEE. IT MAY ALSO BE NOTED HERE THAT THE LEARNED COUNSEL FOR THE ASSESSEE ALSO ADMITTED THAT IN ALL THE BANK CERTIFICATES, THERE IS NO DEDUCTION OF THE COMMISSION/DISCOUNT. COPIES OF THE SAME ARE FILED AT PAGES 56 TO 83 OF THE PAPER BOOK. IT WOULD, THEREFORE, S HOW THAT IN EVERY TRANSACTION THERE WAS NO INVOLVEMENT OF TH E COMMISSION AGENT, AS ARGUED BY THE ASSESSEE. THERE FORE, IT IS NOT EXPLAINED THAT WHAT WAS THE NEED FOR INVOLVE MENT OF THE COMMISSION AGENTS ONLY IN SOME OF THE TRANSACTI ONS FOR WHICH BILLS/INVOICES HAVE BEEN ISSUED BY THE ASSESS EE. IT IS A CASE OF NO EVIDENCE TO PROVE IF THE COMMISSION AG ENTS HAVE RENDERED ANY ACTUAL SERVICE FOR THE ASSESSEE. THER EFORE, THE ASSESSEE FAILED TO PROVE THAT THE AMOUNT ON ACCOUNT OF COMMISSION WAS INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. I, THEREFORE, DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDERS OF THE A UTHORITIES BELOW. I CONFIRM THE ADDITION UNDER SECTION 37(1) OF THE ACT. 12 13. THE SECOND ISSUE IS WITH REGARD TO SIMILAR ADD ITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF NON-DED UCTION OF TDS BY THE ASSESSEE. SINCE I HAVE ALREADY CONFI RMED THE ADDITION UNDER SECTION 37(1) OF THE ACT, THEREFORE, THIS ISSUE IS LEFT FOR ACADEMIC DISCUSSION ONLY AND IS NOT DEC IDED BECAUSE IT WOULD NOT CHANGE THE FATE OF THE CASE. 14. IN THE RESULT, THE APPEAL OF THE ASSESSEE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATED : 10 TH AUGUST, 2016 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH