DCIT, Bangalore V. M/s Fouress Pvt. Ltd., Hosakote

ITA 848/BANG/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95445 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 24-11-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 26-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R REDDY I
• Assessee Lawyers: H V GOWTHAMA
• Section: 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE A BENCH, BANGALORE BEFORE SMT ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ITA NOS.847 & 848(BNG)/2014 (ASSESSMENT YEARS : 2009-10 & 2010-11) THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-11(2), BANGALORE APPELLANT VS M/S B FOURESS PVT.LTD. PLOT NO.7, PB NO.11, KIADB INDUSTRIAL AREA, HOSAKOTE-562 114 PAN NO.AAACB 6220A RESPONDENT AND ITA NO.846(BNG)/2014 (ASSESSMENT YEAR : 2010-11) M/S B FOURESS PVT.LTD. PLOT NO.7, PB NO.11, KIADB INDUSTRIAL AREA, HOSAKOTE-562 114 PAN NO.AAACB 6220A APPELLANT VS THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-11(2), BANGALORE RESPONDENT ASSESSEE BY : SHRI H.V.GOWTHAMA, CA REVENUE BY : SHRI G.R.REDDY, CIT-DR-I DATE OF HEARING : 24-11-201 5 DATE OF PRONOUNCEMENT : 30-12-2015 2 ITA NOS.846,847 & 848(B)/2014 O R D E R PER SHRI INTURI RAMA RAO, AM : THESE ARE APPEAL AND CROSS APPEALS FILED BY THE ASS ESSEE AND REVENUE DIRECTED AGAINST ORDERS OF THE LEARNED CIT( A)-I, BANGALORE DATED 27-02-2014 FOR THE ASSESSMENT YEARS 2009-10,2 010-11 & 2009-10 RESPECTIVELY. 2. SINCE COMMON ISSUES WERE INVOLVED IN ALL THESE APPEALS, WE DISPOSE OF THESE APPEALS BY THIS CONSOLIDATED ORDER . WE SHALL NOW TAKE UP APPEAL IN ITA NO.847(B)/2014 FOR AY: 2009-10, FOR T HE SAKE OF CLARITY AND CONVENIENCE. 2.1 THE REVENUE RAISED THE FOLLOWING GROUNDS OF AP PEAL; 1. THE ORDER OF THE CIT(A) IS OPPOSED TO LAW AND FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE CIT(A) ERRED IN HOLDING THAT THE COMMISSIONS OF RS.2,93,08,446/- PAID TO THE AGENTS IS GENUINE AND REASONABLE WITHOUT APPRECIATING THAT TH E PAYMENTS WERE MADE FOR LIASONING WHICH WAS MORE OF GENERAL IN NATURE AND THE ASSESSEE HAD FAILED TO PR OVE THE ACTUAL WORK CARRIED OUT BY THE PARTIES. 3. THE CIT(A)ERRED IN NOT APPRECIATING THAT THE PAYMENTS WERE MADE FOR COORDINATION FOR PRE-TENDER 3 ITA NOS.846,847 & 848(B)/2014 PROCESS, TENDER PROCESS AND ASSISTING FOR MEETINGS ETC. AND THE ASSESSEE HAD FAILED TO PROVE THE ACTUAL WOR K CARRIED OUT BY THE PARTIES. 4. THE CIT(A) ERRED IN NOT APPRECIATING THAT MERE LY FILING THE AGREEMENTS DOES NOT AMOUNT TO ACTUAL RENDERING OF SERVICE TO NECESSITATES AS TO EXPAND S UCH A HUGE COMMISSION. 5. THE CIT(A) ERRED IN NOT APPRECIATING THAT THE PRINCIPLES OF RES-JUDICATA DO NOT HAVE APPLICATION TO INCOME TAX PROCEEDINGS AND THE CIT(A) WAS INFLUENCE D BY THE ORDER OF THE AO PERTAINING TO A DIFFERENT ASSESSMENT YEAR IN CONTRAST TO THE OBSERVATION MADE IN THE ASSESSMENT ORDER OF THE RELEVANT ASSESSMENT YEA R. 6. FOR THESE AND SUCH OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING, IT IS HUMBLY PRAYED T HAT THE ORDER OF THE CIT(A) BE REVERSED AND THAT OF THE AO BE RESTORED. 7. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER, TO AMEND OR DELETE ANY OF THE GROUNDS THAT MAY BE URGE D AT THE TIME OF HEARING OF THE APPEAL 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A COMPANY DULY INCORPORATED UNDER THE PROVISIONS OF COMPANIES ACT, 1956. IT IS ENGAGED IN 4 ITA NOS.846,847 & 848(B)/2014 MANUFACTURE AND SALE OF HYDRO TURBINES. THE RETUR N OF INCOME FOR THE AY: 2009-10 WAS FILED ON 26-09-2009 DECLARING TOTAL INC OME OF RS.18,44,7,730/-AND THE SAME WAS REVISED ON 22-03-2 011 AFTER PROCESSING THE RETURN OF INCOME UNDER THE PROVISIONS OF SEC.14 3(1) OF THE IT ACT. THE CASE WAS SELECTED FOR SCRUTINY ASSESSMENT AND THE A SSESSMENT WAS COMPLETED AT A TOTAL INCOME OF RS.21,37,96,180/-. WHILE DOING SO, THE AO DISALLOWED THE COMMISSION PAYMENT OF RS.2,93,08,446 /-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO CALLED FOR THE DETAILS OF COMMISSION PAYMENT MADE TO VARIOUS PARTIES. THE ASS ESSEE HAD DULY FURNISHED FULL DETAILS OF THE COMMISSION PAYMENTS A ND COPIES OF THE AGREEMENT ENTERED WITH THE AGENTS. AFTER GOING THR OUGH THESE DETAILS, THE ASSESSEE COMPANY WAS CALLED UPON TO FURNISH THE PRO OF IN SUPPORT OF THE EXACT SERVICES RENDERED BY THE AGENTS. HOWEVER, TH E AO OBSERVED THAT NO EVIDENCE WAS FILED SUBSTANTIATING THE NATURE OF WOR K DONE BY THE AGENTS AND THEREBY HE HAD COME TO THE CONCLUSION THAT THE EXPENDITURE IS NOT ALLOWABLE U/S 37 OF THE IT ACT, 1961. THE AO FURTHE R OBSERVED THAT THE ADDITION ON IDENTICAL ISSUE IN ASSESEES OWN CASE W AS UPHELD BY THE JURISDICTIONAL HIGH COURT VIDE ORDER DATED 07-10-20 09 IN ITA NO.225/209 5 ITA NOS.846,847 & 848(B)/2014 FOR THE ASSESSMENT YEAR 2002-03. A SIMILAR ADDITI ON WAS CONFIRMED BY THE LEARNED CIT(A) FOR THE ASSESSMENT YEARS 2006-07 AND 2007-08. 4. BEING AGGRIEVED BY THIS ORDER OF LEARNED CIT(A) THE REVENUE IS IN APPEAL BEFORE US. 5. THE LEARNED AR ARGUED THAT THE ASSESSEE HAS FILE D FULL DETAILS FOR THE PAYMENT, COPIES OF AGREEMENTS WHICH DESCRIBE TH E NATURE OF SERVICES RENDERED BY THE ASSESSEE. HE HAS ALSO SUBMITTED T HAT THE PAYMENTS HAVE BEEN MADE THROUGH BANKING CHANNELS AND HE SUBMITTED THAT THE ORDER OF THE CIT(A) MAY BE SUSTAINED. 6. BEFORE US LEARNED SR DR VEHEMENTLY ARGUED THAT T HE ASSESSEE COMPANY HAD FAILED TO PROVE THE ONUS OF SERVICES RE NDERED BY THE AGENTS TO WHOM THE COMMISSION PAYMENTS WERE MADE. MERE PAYMEN TS OF COMMISSION THROUGH BANKING CHANNEL AND EXISTENCE OF AGREEMENTS ARE NOT SACROSANCT. THEREFORE, THE CIT(A) IS NOT JUSTIFIED IN ALLOWING THE APPEAL. 7. ON THE OTHER HAND, LEARNED AR RELIED ON THE ORDE RS OF THE LD. CIT(A) 6 ITA NOS.846,847 & 848(B)/2014 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN APPEAL IS ABOUT THE ALLOWABILI TY OF COMMISSION PAYMENT OF RS.2,93,08,446/-. UNDISPUTEDLY, THE ASS ESSEE COMPANY HAD PAID COMMISSION THROUGH ACCOUNT PAYEE CHEQUE. THIS WILL NOT DEBAR THE AO FROM PROBING THE MATTER FURTHER TO EXAMINE WHETH ER THE COMMISSION PAYMENTS ARE ALLOWABLE EXPENDITURE OR NOT. IN THI S CONTEXT, IT IS WORTH QUOTING THAT THE DECISION OF THE HONBLE SUPREME CO URT IN THE CASE OF LAXMI NARAYAN MADANLAL VS CIT 86 ITR 439, WHEREIN I T WAS HELD AS FOLLOWS; THE MERE EXISTENCE OF AN AGREEMENT BETWEEN THE ASSESSEE AND ITS SELLING AGENTS OR PAYMENT OF CERTA IN AMOUNT AS COMMISSION, ASSUMING THERE WAS SUCH PAYMENTS, DOES NOT BIND INCOME TAX OFFICER TO HOLD THAT THE PAYMENTS WAS MADE EXCLUSIVELY AND WHOLLY FOR THE PURPOSE OF ASSESSEES PAYMENTS MIGHT HAVE BEEN MADE. IT IS STILL OPEN TO THE ITO TO CONSIDER THE RELEVANT FACTS AND DETERMINE FOR HIMSELF WHETHER TH E COMMISSION SET TO HAVE BEEN PAID TO THE SELLING AGE NTS OR ANY PART THEREOF IS PROPERLY DEDUCTIBLE U/S 37 O F THE ACT. 7 ITA NOS.846,847 & 848(B)/2014 9 . THUS, THE AO IS EMPOWERED TO PROBE FURTHER AND RE ACH AT A CONCLUSION WHETHER THE COMMISSION WAS PAID FOR THE SERVICES ACTUALLY RENDERED AND DETERMINE WHETHER THE EXPENDITURE WAS LAID OUT WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. IN THE P RESENT CASE, THE AO HAD CALLED UPON THE ASSESSEE COMPANY TO FURNISH EVIDENC E IN SUPPORT OF THE SERVICES RENDERED BY THE COMMISSION AGENTS. IN RE SPONSE TO THIS, EXCEPT HIGHLIGHTING THE ROLE OF COMMISSION AGENT, NO EVIDE NCE WAS FURNISHED IN SUPPORT OF THE SERVICES RENDERED BY THE COMMISSION AGENT. THE AO GAVE CATEGORICAL FINDING THAT THE ASSESSEE HAD FAILED TO SUBSTANTIATE THE ACTUAL SERVICES RENDERED BY THE SALES AGENT. THE AO OBSERV ED AS UNDER VIDE PARA-8 OF HIS ORDER; 8. IN THIS CONTEXT, THE ASSESSEE COMPANY WAS ASKED TO EXPLAIN THE EXACT NATURE OF WORK CARRIED O UT BY THE LOCAL AGENCIES FOR PROVIDING THESE SERVICES. THE ASSESSEE-COMPANY COULD BE ABLE TO PROVIDE CERTAIN CORRESPONDENCES CARRIED OUT BETWEEN THE ASSESSEE-COMPANY AND LOCAL AGENCY. ON EXAMINATION OF THESE CORRESPONDENCES, IT IS NOTED THAT THESE WE RE WRITTEN TO INFORM EITHER THE PAYMENTS HAVE BEEN RELEASED OR DEMANDING FOR A PAYMENT. NO EVIDENCE 8 ITA NOS.846,847 & 848(B)/2014 SUBSTANTIATING THE EXACT NATURE OF WORK HAS PRODUCE D BY THE ASSESSEE. MOREOVER, IT IS INTERESTING TO KNO W FROM THE PAYMENTS MADE BY THE ASSESSEE-COMPANY TO VARIOUS LOCAL AGENCIES AS REFLECTED IN THE TABLE ABOVE.I.E.FOR AGENCY HIRED BY IT IN DUBAI, UAE, MR.KARTHIK NARAYAN FOR A PROJECT AT TURKEY, IT HAS CLAIMED TO HAVE INCURRED ONLY 0.25% AS COMMISSION FOR THE SERVICES PROVIDED BY A COMPANY SITUATED AT DUBAI, WHEREAS IT HAS CLAIMED TO HAVE PAID COMMISSION AT 7.5% ON THE RECEIPTS AS COMMISSION PAID TO M/S NORVIS HOLDING (S) PVT.LTD. SINGAPORE, IT COULD BE SEEN, IF COORDINATION HAS TO BE CARRIED OU T AT A FOREIGN PLACE LIKE DUBAI/TURKEY, THE EXPENSES WIL L BE MORE THAN IF IT IS TO BE CARRIED OUT WITHIN THE COUNTRY. IT MUST ALSO BE OBSERVED THAT THE COMMISS ION PAID TO M/S KRISHNA HYDRO PROJECTS PVT.LTD. DEHRA DUN, AGAINST KHALDIGAD INDIA PROJECT COMMISSION HAS BEEN PAID AT 3.5% AMOUNTING TO RS.5,00,000/-. FRO M THIS OBSERVATION, IT CAN BE SAID THAT THERE IS NO CONSISTENCY AND COHESION IN THE SUBMISSIONS MADE BY THE ASSESSEE-COMPANY. MOREOVER, THE AGENTS ARE NOT TECHNICAL PERSONNEL WHO ARE AWARE OF THE TECHNICAL SPECIFICATION AND OTHER AND OTHER DETAILS OF THE MACHINERY INVOLVED. THE PERCENTAGE OF THE COMMISSIO N 9 ITA NOS.846,847 & 848(B)/2014 VIS--VIS THE TOTAL RECEIPT ON SUPPLY OF TURBINES I S SUBSTANTIALLY HIGH. THE ASSESSEE HAS FAILED TO ESTABLISH THAT THE SERVICES RENDERED BY THE COMMISSION AGENT ARE FOR THE REQUIREMENTS OF THE PROJECT TRANSACTED BY THE ASSESSEE-COMPANY TO ITS CUSTOMERS. THE AGREEMENTS ARE VAGUE AND GENERAL IN NATURE. THE ASSESSEE-COMPANY COULD NOT DISCHARGE IT S ONUS BY SUBSTANTIATING ITS CLAIM BY FURNISHING COMPLETE DETAILS. FURTHER, IT COULD NOT BE TO ESTAB LISH AS TO HOW THE EXPENDITURE CLAIMED WERE IDENTICAL T BUSINESS AND RELATABLE TO THE INCOME EARNED OR FOR THE PURPOSES OF BUSINESS. IN VIEW OF THIS, IT IS DIFFI CULT TO AGREE WITH THE ASSESSEES VERSION. THE ENTIRE AMOUN T OF COMMISSION EXPENDITURE CLAIMED TOTALING TO RS.2,93,08,446/- IS DISALLOWED HOLDING THAT IT IS N OT AN ALLOWABLE EXPENDITURE U/S 37 OF THE IT ACT. 10. THE ABOVE OBSERVATION REMAINED UNCONTROVERTED A ND THE ASSESSEE COMPANY HAD CHOSEN NOT TO FILE ANY EVIDENC E IN SUPPORT OF THE SERVICES RENDERED BY SALES AGENCIES EITHER BEFORE T HE LEARNED CIT(A)OR BEFORE US. EVEN BEFORE US, THE LEARNED AR MISERABL Y FAILED TO DEMONSTRATE BEFORE US AS TO WHAT KIND OF PROOF WAS FILED BEFORE THE LOWER AUTHORITIES IN 10 ITA NOS.846,847 & 848(B)/2014 SUPPORT OF SERVICES RENDERED BY THE COMMISSION AGEN T. PURSUANT TO THE DIRECTION OF THE BENCH TO FILE EVIDENCE IN SUPPORT OF THE SERVICES RENDERED THE ASSESSEE HAD CHOSEN TO FILE ONLY CORRESPONDENCE RELATING TO THE PAYMENT WHICH NO WAY ESTABLISHES THE ACTUAL SERVICE S RENDERED BY THE COMMISSION AGENT. THUS, THE ASSESSEE FAILED TO DISC HARGE THE BURDEN OF PROVING THAT THE EXPENDITURE LAID OUT WERE INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. WE MAY FURTHER ADD THA T THE HONBLE SUPREME COURT IN THE CASE OF CIT VS IMPERIAL CHEMICAL INDUS TRIES (IND.) PVT. LTD (1969) 74 ITR 17 HAS UNEQUIVOCALLY HELD THAT THE BU RDEN OF PROVING THAT A PARTICULAR EXPENDITURE HAD BEEN AID OUT OR INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS ENTIRELY LIES ON THE AS SESSEE. THE DISCHARGE OF THE BURDEN HAD TO BE EFFECTIVE AND MEANINGFUL AND N OT TO COVER UP BY MERELY BOOK ENTRIES AND PAPER WORK. THE MERE FACT O F PAYMENT OF COMMISSION BY ACCOUNT PAYEE CHEQUES AND COMPLIANCES WITH THE TDS PROVISIONS SHALL NOT ALONE ENABLE THE ASSESSEE TO C LAIM DEDUCTION UNLESS AND AMOUNT HAS BEEN EXPENDED WHOLLY AND EXCLUSIVEL Y FOR THE PURPOSE OF BUSINESS. 11 ITA NOS.846,847 & 848(B)/2014 11. A CO-ORDINATE BENCH TRIBUNAL OF DELHI IN THE CA SE OF KANU KITCHEN KULTURE (P)LTD VS DCIT (2013) 28 ITR (T) 49 (DEL.-TRIB.) HELD THAT WHETHER THE ASSESSEE FAILED TO DEMONSTRATE THE SERVICES RENDERED BY THE COMMISSION AGENT, THE COMMISSION WAS DISALLOWED . THE RELEVANT PARAS OF THE JUDGMENT ARE REPRODUCED BELOW; 22. THUS THE ASSESSEE AS UTTERLY FAILED TO DEMONST RATE THE NATURE AND EXTENT OF SERVICE RENDERED BY THE AGENT AND AVAILED OF BY THE ASSESSEE FOR ITS BUSINESS OF MODULAR KITCHEN. IN THIS SCENARIO WHAT APPEARS ON RECORD IS MERELY BOOK ENTRIES COUPLED WITH TDS THE AMOUNT WHICH WILL BE CLAIMED AS A REFUND BY THE RECIPIENT BEING A LOSS MAKING CO NCERN. IN OUR CONSIDERED VIEW THE ASSESSEE HAS PRODUCED ONLY SKEL ETAL PAPER WORK OF THE ARRANGEMENT WITHOUT ANY IOTA OF EVIDENCE ABOUT ACTU AL BUSINESS SERVICES RENDERED. 23. THE ASSESSEES CLAIM FOR ALLOWING SIMILAR COMMI SSION PAYMENT IN SUBSEQUENT YEAR CARIES NO MERIT INASMUCH AS THE LEA RNED DR HAS RIGHTLY PLEADED THAT EACH AND EVERY YEAR OF ASSESSMENT IS S EPARATE AND INDEPENDENT UNIT AND PRINCIPLES OF RESJUDICATA DO N OT APPLY. THE 12 ITA NOS.846,847 & 848(B)/2014 ASSESSMENT FOR THE ASSESSMENT YEAR 2009-10 IS UNDER SECTION 143(1) AND FOR THE ASSESSMENT YEAR 2010-11 THERE IS NO MENTION OF THE COMMISSION AT ALL. THEREFORE, WE ARE UNABLE TO GIVE EVIDENCED TO THE FACTS WHOSE RECORD IS NOT BEFORE US AND NOT REFERRED TO BEFORE THE LOW ER AUTHORITIES. 12. SIMILARLY, THE HONBLE DELHI HIGH COURT IN THE CASE OF SCHNEIDER ELECTRIC (IND.) LTD VS CIT (21008) 304 ITR 360 (DEL .) HELD THAT IN THE ABSENCE OF MATERIAL ON RECORD SUGGESTING THAT THE COMMISSION AGENTS HAD PROCURED THE SALE ORDERS, NO COMMISSION SHOULD BE A LLOWED. THE RELEVANT PARA OF THE JUDGMENT IS REPRODUCED BELOW; 13. WE AGREE WITH THE TRIBUNAL THAT THERE IS ABS OLUTELY NO MATERIAL ON RECORD TO SUGGEST THAT M/S RAM AGENCIES HAD PROCURE D ANY SALE ORDERS FOR THE ASSESSEE. THE PRODUCTION OF A FEW BILLS OR PAYM ENT HAVING BEEN MADE BY ACCOUNT PAYEE CHEQUES CANNOT BY ITSELF SHOW THAT M/S RAM AGENCIES HAD PROCURED SALE ORDERS FOR THE ASSESSEE. APART FR OM AN INTERNAL NOTE, THERE IS NO EVIDENCE OF ANY CORRESPONDENCE OR ANY P ERSONAL; MEETINGS ETC. BETWEEN THE ASSESSEE AND M/S RAM AGENCIES TO SUGGES T THAT THE WAS ANY RELATIONSHIP ON THE BASIS OF WHICH M/S RAM AGENCIES PROCURED SOME 13 ITA NOS.846,847 & 848(B)/2014 ORDERS FOR THE ASSESSEE FOR WHICH IT WAS ENTITLED T O RECEIVE COMMISSION. MOREOVER, WE FIND THAT THE UNDERSTANDING BETWEEN TH E PARTIES WAS AN ORAL UNDERSTANDING AND IT APPEARS TO BE DOUBTFUL THAT SU CH AN ORAL UNDERSTANDING CAN BE ARRIVED AT WITHOUT ANY LONG ST ANDING RELATIONSHIP HAVING BEEN ESTABLISHED BETWEEN THE ASSESSEE AND M/ S RAM AGENCIES. IT SEEMS A BIT OUT OF PLACE THAT THE PARTIES ENTERED I NTO AN ORAL BUSINESS RELATIONSHIP INVOLVING SUCH HUGE AMOUNTS OF MONEY O VER A PERIOD OF TIME. 13, THE CO-ORDINATE BENCH OF DELHI IN THE CASE OF P RINTER HOUSE PVT.LTD. VS DCIT (DEL.) AUTHORED BY ACCOUNTANT ME MBER, AFTER REFERRING TO THE ABOVE PRECEDENCE ON THIS ISSUE HELD AS FOLLOWS: THUS, HAVING REGARD TO THE RATIO LAID DOWN IN THE ABOVE CASES THAT IN THE ABSENCE OF PROOF IN SUPPORT OF TH E SERVICES RENDERED BY THE COMMISSION AGENT, NO COMMISSION CAN BE ALLOWED AS A DEDUCTION. THEREFORE, WE DISMISS THE A PPEAL FILED BY THE ASSESSEE AND ALLOW THE APPEALS FILED B Y THE REVENUE. 14 ITA NOS.846,847 & 848(B)/2014 14. IN THE PRESENT CASE, THE LEARNED CIT(A) HAD NOT EXAMINED ANY EVIDENCE TO SHOW THAT THE AGENTS HAVE ACTUALLY REND ERED THEIR SERVICES. THE LEARNED CIT(A) HAD TOTALLY MISDIRECTED HIMSELF BY EXAMINING THE ISSUE FROM THE ANGLE OF TAX DEDUCTED AT SOURCE AND HE HAD FAILED TO EXAMINE WHETHER THE SERVICES ARE ACTUALLY RENDERED BY THE C OMMISSION AGENTS OR NOT. THEREFORE, WE ARE UNABLE TO SUSTAIN THE ORDER OF THE LEARNED CIT(A) AND HOLD THAT THE COMMISSION PAYMENTS IN QUESTION A RE NOT ALLOWABLE KEEPING IN VIEW THE RATIO LAID DOWN IN THE CASES CI TED SUPRA. THE ASSESSEE COMPANY HAD MISERABLY FAILED TO DEMONSTRATE THE ACT UAL SERVICES RENDERED BY THE AGENTS TO WHOM THE COMMISSION PAYMENTS WERE MADE, DESPITE AMPLE OPPORTUNITY GRANTED BY THIS TRIBUNAL TO FURNI SH EVIDENCE IN SUPPORT OF SERVICE RENDERED BY COMMISSION AGENT. 15. THE FACTS RELATING TO ASSESSMENT YEAR : 2010-11 ARE IDENTICAL AND THEREFORE, THE DECISION RENDERED IN THE ASSESSMENT YEAR 2009-10 IS EQUALLY APPLICABLE TO THE ASSESSMENT YEAR : 2010-11 ALSO. 15 ITA NOS.846,847 & 848(B)/2014 16. IN THE RESULT, THE APPEALS FILED BY THE REVEN UE IN ITA NOS.847 & 848/2014 FOR THE AY: 2009-10 & 2010-11 ARE ALLOWED AND THE APPEAL FILED BY THE ASSESSEE IN ITA NO.846/2014 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 30 TH DECEMBER, 2015. SD/- (ASHA VIJAYARAGHAVAN SD/- (INTURI RAMARAO) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: BANGALORE D A T E D : 30-12-015 AM* COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)-II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER, AR,ITAT, BANGALORE