M/s. Gaytatri International, Ahmedabad V. The Income tax Officer, Ward-7(3), Ahmedabad

MA 256/AHD/2009

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7931 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-04-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2001-2002
• Appeal Filed On: 30-07-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: OI P BATHEJA
• Assessee Lawyers: PF JAIN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER M.A.NO.256/AHD/2009 IN I.T.A. NO.2377 / AHD/2004 (ASSESSMENT YEAR 2001-02) M/S. GAYATRI INTERNATIONAL, 306, UNIVERSITY PLAZA, NAVRANGPURA, AHMEDABAD VS. ITO, WARD 7(3), AHMEDABAD PAN/GIR NO. : AABFG9086B (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI P F JAIN, AR RESPONDENT BY: SHRI OI P BATHEJA, SR. DR DATE OF HEARING: 30.03.2012 DATE OF PRONOUNCEMENT: 13.04.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASS ESSEE IN WHICH IT HAS BEEN SUBMITTED BY THE ASSESSEE THAT THE TRIBUNA L HAS COMMITTED SOME APPARENT MISTAKES AND THEREFORE, IMPUGNED TRIBUNAL ORDER SHOULD BE RECALLED. IT IS ALSO SUBMITTED BY THE ASSESSEE IN THE MISCELLANEOUS APPLICATION THAT THESE FINDING OF THE TRIBUNAL ARE CONTRARY TO THE EVIDENCE ON RECORD AND THE CONTENTIONS RAISED BY THE ASSESSE E IN THE MISCELLANEOUS APPLICATION ARE AS UNDER: THE DEPARTMENT HAS FILED APPEAL AGAINST THE ALLOW ANCE OF CLAIM OF COMMISSION DECIDED IN FAVOUR OF ASSESSEE B Y THE CIT (A) AND GROUND NO. 1 AND 2 RELATED TO THIS ISSUE. THE ITAT IN ITS ORDER PRONOUNCED ON 01-08-2008 CONS EQUENT TO RECALLING OF EARLIER ORDER ON THE ISSUE OF COMMISSI ON WHICH WAS 10 BE RESTORED BACK TO THE FILE OF AO, BUT HAS DECIDED THE .ISSUE OF M.A.NO.256 /AHD/2009 2 COMMISSION AGAINST THE ASSESSEE BY RECORDING FOLLOW ING FINDINGS APPEARING ON PAGE 6 OF THE ITAT ORDER WHICH ARE RES PECTFULLY SUBMITTED TO BE CONTRARY TO THE FACTS ON 'WE FIND THAT NO EVIDENCE OR MATERIAL FOR ACTUALLY RENDERING OF THE SERVICES WERE AVAILABLE BEFORE THE CIT (A) . IT IS OBSERVED THAT THE ASSESSEE COULD NOT FILE ANY LIST OF CUSTOMERS TO WH OM SERVICES WERE RENDERED BY THE SAID AGENT, THOUGH IT WAS SPECIFICA LLY MENTIONED IN THE ASSESSMENT ORDER. FURTHER, NO EVIDENCE REGARDIN G ANY EXPERIENCE OF THE DIRECTOR OF THE AGENT COMPANY IN THE FIELD OF THE ASSESSEE'S BUSINESS COULD ALSO BE FILED BY THE ASSE SSEE.' IT HAS BEEN FURTHER OBSERVED THAT 'CONSIDERING THE FACTS OF THE; CASE, SPECIFICALLY THE FACTS THAT THE AGENT COMPANY'S MAI N LINE OF BUSINESS WAS DIFFERENT FROM THE ASSESSEE'S NATURE O R BUSINESS, NO MATERIAL COULD BE BROUGHT ON RECORD TO SHOW THAT AN Y SERVICE WAS ACTUALLY RENDERED BY THE AGENT.' THE ABOVE FINDINGS ARE CONTRARY TO THE EVIDENCE ON RECORD AS SET. OUT BE LOW:- 1. THE ASSESSEE VIDE SUBMISSION DATED 19-03- 2004 TO AO IN RESPONSE TO HIS LETTER DATED 16-03-04 ENCLOSED LIST OF PARTY TO WHOM EXPORT WAS MADE IN F.Y. 1999-2000 RELEVANT TO A.Y. 2000-01, AS REQUIRED BY HIM AND THE SAID .SUBMISSION IS APPEARI NG ON PAGE NO. 1 TO 6 OF PAPER BOOK RELEVANT PAGE NO. 2 . THIS IS ALSO QUOTED IN THE ORDER OF THE CIT (A) ON PAGE NO. 7 . 2. IN THE STATEMENT OF DIRECTOR RECORDED BY THE AO, THE COPY OF WHICH APPEARS ON PAGE NO. 16 TO 19 OF PAPER BOOK AN D THE COPY OF ENGLISH VERSION WAS GIVEN IN THE COURT DURING HEARI NG HELD ON 01- 07-08 AND WHICH IS ALSO QUOTED BY THE CIT (A) IN HI S ORDER ON PAGE 8 AND IN REPLY TO QUESTION 9 THE DIRECTOR REPLIED Q.9 FOR ABOVE- FIRM GIVE DETAILS OF COMPANIES FROM WHOM EXPORT ORDER WAS RECEIVED BY YOU? 2. SATINER S.A. (FRANCE) 3. INDUS CHEMICALS (U.K. ) 4. UNITED CHEMICALS (USA. THE A.O. IN Q.4 ASKED THE DIRECTOR WHAT IS YOUR EXP ERIENCE FOR DYES AND CHEMICALS. A. 4-1 I AM DOING INDEPENDENT B USINESS OF AND. CHEMICALS SINCE 1992 AND THEREFORE I PO SSESS TECHNICAL KNOWLEDGE AND DETAILS OF MARKET IN THIS REGARD. ON PAGE 9 OF THE ORDER OF CIT (A) FOLLOWING UNDISPU TED FACTS EMERGING FROM THE STATEMENT OF DIRECTOR HAS BEEN ME NTIONED WHICH HAS NOT BEEN CONSIDERED BY THE HONBLE ITAT. 1. IT IS AN OLD COMPANY ESTABLISHED IN THE YEAR 199 2. 2. THE DIRECTOR HIMSELF IS WELL VERSED WITH EXPERTI SE IN KNOWLEDGE OF DYES AND CHEMICALS SINCE 1992 ITSELF. M.A.NO.256 /AHD/2009 3 3. AS PER THE ARTICLES AND MEMORANDUM THE COMPANY I S AUTHORIZED TO DO THIS WORK OF DYES AND CHEMICALS AND THE WORK OF DALALI / COMMISSION, IS DONE SINCE INCEPTION. 4. IN THE STATEMENT THE DETAILS OF COMPANIES FROM W HOM EXPORT ORDERS WERE OBTAINED HAVE BEEN GIVEN WITH NAME AND LOCATION. 5. THE DETAILS OF COMMISSION HAS ALSO BEEN GIVEN. 6. IT HAS BEEN CLEARLY STATED THAT THE WORK WAS CON DUCTED AS SOURCING AGENT FROM THE PREMISES OF THE FIRM ITSELF AND OUT OF BUSINESS CONFIDENTIALITY ALL THE PAPERS PERTAINING TO EXPORT ORDERS WERE KEPT AT THE FIRM ITSELF AND THE COMPANY BEING SOURCING AGENT THERE WAS NO NEED TO MENTION ITS NAME IN THE CONCER NED PAPERS.' 3. THE CIT(A) HAS RECORDED FOLLOWING FINDING IN PARA 4.2 PAGE 13 OF HIS ORDER WHICH HAS NOT BEEN CONSIDERED BY TH E HONBLE ITAT ARE IN CONTRAST TO THE FINDINGS OF CIT(A). .. THE AGENT HAS RENDERED SERVICES TO THE APPELLANT WHERE BY EXPORT SALE OF THE APPELLANT HAVE INCREASED FORM RS.153 LACS TO RS.256 LACS. THE DIRECTOR HAS GIVEN DETAILS OF PARTIES FROM WH OM EXPORT ORDERS HAVE BEEN PROCURED. ........................ IT IS ALSO FOUND THAT SHRI KAMLESH JAIN WAS FULLY CONVERSANT IN THE BUSINESS OF DYES AND CHEMIC ALS AND THE COMPANY HAS AN OBJECT TO DO DYES BUSINESS AS PER OT HER OBJECTS OF THE COMPANY. HE HAS FURTHER HELD THAT THE DECISION OF GUJARAT HI GH COURT I.E. VOLTAMP TRANSFORMERS P. LTD. SUPPORTS THE CONTENT:! . ON OF THE APPELLANT THAT THERE WAS COMMERCIAL CONSIDERATION O R BUSINESS EXPEDIENCY FOR PAYMENT OF COMMISSION. THE-; HON'BLE ITAT HAS NOT CONSIDERED THE DECISION OF GUJARAT HIGH COURT. IN THE CASE OF VOLTAMP TRANSFORMERS P. LTD. REPORTED IN 129 ITR 105 RELIED UPON BY THE ASSESSEE AND FOLL OWED BY THE CIT (A) WHO HAS QUOTED THE RELEVANT PARA OF THE ORD ER ON PAGE NO. 10 & 11 OF HIS ORDER'. THE COPY OF THIS DECISION WA S ALSO TARNISHED TO THE ITAT AT THE TIME OF APPEAL HEARING. IT IS RESPECTFULLY PRAYED THAT THE ABOVE ARE PATENT , MANIFEST AND SELF -EVIDENT ERROR WHICH DOES NOT REQUIRE ELABORATE DIS CUSSION OF EVIDENCE OR ARGUMENTS TO ESTABLISH] IT. IN THIS REG ARD THE RELIANCE IS PLACED ON THE FOLLOWING DECISIONS. . SAURASHTRA KUTCH STOCK EXCHANGE LTD. 262 ITR ( GUJARAT HIGH COURT } L. SAURASHTRA KUTCH STOCK. EXCHANGE LTD. 305 ITR 227 (HON'BLE SUPREME COURT. IN VIE OF ABOVE FACTS AND DECISIONS THE APPLICANT SUBMITS THAT THE ABOVE ERRORS ARE APPARENT BECAUSE THERE CANNOT BE ANY DOUBT, DISPUTE OR DEBATE THAT THEY ARE ERRORS AND DO NOT N EED ANY ARGUMENT M.A.NO.256 /AHD/2009 4 AS HAS BEEN SHOWN ABOVE. IT IS, THEREFORE, PRAYED THAT THESE ERRORS MAY BE CORRECTED AS INDICATED ABOVE. 2. IN THE COURSE OF HEARING BEFORE US, THE LD. A.R. FOR THE ASSESSEE REITERATED THE SAME CONTENTION WHICH ARE RAISED IN THE MISCELLANEOUS APPLICATION. RELIANCE WAS PLACED ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS: (A) CIT VS NIRANJAN K ZAVERI 20 DTR 123 (B) GEHNA VS ITO 137 TTJ (JP)(UO)17 3. IT WAS SUBMITTED THAT RELIANCE ON THESE JUDGEMEN TS ARE PLACED IN SUPPORT OF THIS CONTENTION THAT IF THE TRIBUNAL ORD ER IS NOT ON THE BASIS OF MATERIAL FACTS AVAILABLE ON RECORD AND IF THE MATER IAL ALREADY AVAILABLE HAS NOT BEEN PROPERLY APPRECIATED THEN, THE TRIBUNAL OR DER SHOULD BE RECALLED. HE ALSO SUBMITTED A COPY OF GUJARAT HIGH COURT DECI SION IN THE CASE OF NIRANJAN K JAVERI AND SUBMITTED THAT IT HAS ALSO CO NSIDERED ITS OWN JUDGMENT IN THE CASE OF SAURASHTRA KUTCH STOCK EXCH ANGE LTD. AND SUBSEQUENT DECISION OF HONBLE APEX COURT AS REPORT ED IN 262 ITR 227 (S.C.). 4. AS AGAINST THIS, IT IS SUBMITTED BY THE LD. D.R. OF THE REVENUE THAT THERE IS NO APPARENT MISTAKE IN THE TRIBUNAL ORDER BECAUSE THE TRIBUNAL HAS DECIDED THE ISSUE AFTER CONSIDERING ALL THE MATERIA L AVAILABLE ON RECORD AND THEREFORE, THERE IS NO APPARENT MISTAKE IN THE ORDER WHICH CAN BE RECTIFIED U/S 254(2) OF THE ACT. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT PARA 10 OF THE IMPUGNED ORDER IS RELEVANT AS PER WHICH THE ISS UE IS DECIDED BY THE TRIBUNAL. FOR THE SAKE OF READY REFERENCE, THIS PA RA 10 IS REPRODUCED BELOW: WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE ORDERS OF POWER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD. IN. THE INSTANT CASE THE ASSESSEE CLAIMED DEDUCTION OF COMM ISSION M.A.NO.256 /AHD/2009 5 PAYMENT TO M/S. RACHNA CAPITAL & SECURITIES PVT. LT D., FOR PROCURING EXPORT ORDERS. IN ORDER TO VERIFY THE GEN UINENESS OF THE COMMISSION PAYMENT THE A O EXAMINED THE DIRECTOR OF M/S. RACHNA CAPITAL & SECURITIES .PVT.. LTD., SHRI KAMLE SH JAIN AND REQUIRED HIM TO FILE EVIDENCES FOR THE SERVICES REN DERED IN THE FORM OF LIST, OF BUYERS FROM WHOM ORDERS WERE PROCURED, CORRESPONDENCE, FAXES ETC. WITH THE BUYERS. HE REPL IED THAT AS THE .NATURE OF SERVICES RENDERED WERE CONFIDENTIAL THER EFORE, HE RENDERED THE SERVICES BY VISITING THE OFFICE OF THE ASSESSEE AND AS SUCH HAS NO DETAILS AND EVIDENCES WITH HIM FOR THE SERVICES GIVEN TO THE ASSESSEE. WHEN ENQUIRED ABOUT THE RECEIPT OF PAYMENT, HE REPLIED THAT THE SAME WERE PAID BY WAY OF CREDIT TO M/S. GAYATRI INTERMEDIATE PVT. LTD. AGAINST GOODS SUPPLIED TO TH EM. HE ALSO INFORMED THAT SINCE THE ORDERS BY M/S. GAYATRI INTE RMEDIATE PVT. LTD. WERE CANCELLED AND HENCE, THE PAYMENT WAS NOT RECEIVED AND THAT HE WAS PLANNING FOR TAKING LEGAL ACTION IN THI S CONNECTION. FROM THIS THE A O CONCLUDED THAT NO SERVICES WERE R ENDERED, TO THE ASSESSEE BY M/S. RACHNA CAPITAL & SECURITIES PVT. L TD. AND THE CLAIM OF COMMISSION PAYMENT WAS NOT. GENUINE AND HE NCE HE DISALLOWED DEDUCTION FOR THE SAME TO THE ASSESSEE. THE CIT(A) DELETED THE DISALLOWANCE ON THE GROUND THAT SERVICE S, WERE RENDERED BY M/S. RACHNA CAPITAL & SECURITIES PVT. L TD. AND AS A RESULT EXPORT TURNOVER OF THE ASSESSEE SUBSTANTIALL Y INCREASED IN THE YEAR UNDER APPEAL. WE FIND THAT NO EVIDENCE OR MATE RIAL FOR ACTUALLY RENDERING OF THE SERVICES WERE AVAILABLE B EFORE THE CIT(A). IT IS OBSERVED THAT THE ASSESSEE COULD NOT FILE ANY LIST OF BUYERS TO WHOM SERVICES WERE RENDERED BY THE SAID A GENT, THOUGH IT WAS SPECIFICALLY MENTIONED IN THE ASSESSMENT ORDER. FURTHER, NO REGARDING ANY EXPERIENCE OF THE DIRECTOR OF THE AGE NT THE FIELD OF THE ASSESSEE'S BUSINESS COULD ALSO BE FILED BY ;E. IN ABSENCE OF ANY EVIDENCE REGARDING RENDERING OF THE ASSESSEE THE CI T(A) WAS RIOT JUSTIFIED IN CONCLUDING SERVICES WERE RENDERED BY T HE AGENT. FURTHER, THE A O OBSERVED IN THE ASSESSMENT ORDER T HAT PAYMENT OF COMMISSION WAS NOT RECEIVED BY THE AGENT AND NO LEG AL ACTION AGAINST THEM WAS TAKEN BY THE AGENT THOUGH BEFORE T HE A O IT WAS SUBMITTED THAT LEGAL ACTION FOR NON-RECEIPT OF COMM ISSION IS GOING TO BE TAKEN IN A SHORT TIME, BEFORE US ALSO NO MATE RIAL WAS BROUGHT TO SHOW THAT ANY SUCH ACTION WAS TAKEN. CONSIDERING THE FACTS OF THE CASE, SPECIFICALLY THE FACT THAT THE AGENT COMP ANY'S MAIN LINE OF BUSINESS WAS DIFFERENT FROM THE ASSESSEE'S NATURE O F BUSINESS, NO MATERIAL COULD BE BROUGHT ON RECORD TO SHOW THAT AN Y SERVICE WAS ACTUALLY RENDERED BY THE AGENT, IN OUR CONSIDERED O PINION THE A O WAS JUSTIFIED IN CONCLUDING THAT THE COMMISSION PAY MENT CLAIMED M.A.NO.256 /AHD/2009 6 BY THE ASSESSEE WAS NOT GENUINELY FOR THE BUSINESS PURPOSE OF THE ASSESSEE COMPANY. WE, THEREFORE, SET ASIDE THE ORDE R OF CIT(A) AND RESTORE THE ORDER OF THE A.O. THE GROUND OF AP PEAL OF THE REVENUE IS ALLOWED. 6. FROM THE ABOVE PARA OF THE TRIBUNAL ORDER, WE FI ND THAT IT IS NOTED BY THE TRIBUNAL IN THE ABOVE PARA THAT IT WAS NOTED BY THE A.O. IN THE ASSESSMENT ORDER THAT IN ORDER TO VERIFY THE GENUIN ENESS OF COMMISSION PAYMENT, THE A.O. EXAMINED THE DIRECTOR OF M/S. RAC HNA CAPITAL & SECURITIES LTD. AND REQUIRED HIM TO FILE EVIDENCE F OR THE SERVICES RENDERED IN THE FORM OF LIST OF BUYERS FORM WHOM ORDERS WERE PROCURED, CORRESPONDENCE, FAX ETC WITH THE BUYERS. THE A.O. FURTHER NOTED THAT HE REPLIED THAT THE SERVICES RENDERED WERE CONFIDENTIA L AND THAT HE RENDERED THE SERVICE BY VISITING THE OFFICE OF THE ASSESSEE AND AS SUCH, NO DETAILS AND EVIDENCE FOR THE SERVICES GIVEN TO THE ASSESSEE IS AVAILABLE. IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE, IT WAS CONTENDED THAT THE PERSON HAS PROVIDED THE NAMES AND ADDRESSES OF THE COMPANIES FROM WHOM EXPORT ORDERS WERE OBTAINED. THE TRIBUNAL HAS NOT DISPUTED THIS ASPECT. THE TRIBUNAL HAS NOTED THIS CONTENTION THA T NO EVIDENCE REGARDING RENDERING OF SERVICES IN THE FORM OF CORRESPONDENCE /FAX ETC. FROM THE PARTIES FROM WHOM ORDERS ARE PROCURED WAS BROUGHT O N RECORD. IT IS FURTHER NOTED THAT IT WAS SUBMITTED BY THIS PERSON BEFORE THE A.O. THAT HE USED TO PROVIDE SERVICES BY VISITING THE OFFICE OF THE ASSESSEE. WE FAIL TO UNDERSTAND AS TO HOW, THE SERVICES CAN BE PROVIDED REGARDING PROCUREMENT OF ORDERS BY VISITING THE OFFICE OF THE ASSESSEE UNLESS THIS PERSON/COMMISSION AGENT MAKES EFFORTS BY CONTACTING THE PARTIES FROM WHOM THE ORDERS ARE PROCURED/TO BE PROCURED. THERE IS NO MENTION IN THE MISCELLANEOUS APPLICATION ALSO REGARDING ANY EVIDEN CE IN THIS REGARD AND THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT TH ERE IS NO APPARENT MISTAKE IN THE TRIBUNAL ORDER AND NO VITAL FACT WAS IGNORED BY THE TRIBUNAL M.A.NO.256 /AHD/2009 7 AND HENCE, IT CANNOT BE SAID THAT THE DECISION OF T HE TRIBUNAL IS EITHER NOT BASED ON MATERIAL FACTS OR THE MATERIAL ALREADY AVA ILABLE HAS NOT BEEN PROPERLY APPRECIATED AND, THEREFORE, THE JUDGMENT O F HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS NIRANJAN K JAVERI (SUPRA) IS NOT APPLICABLE IN THE PRESENT CASE. 7. REGARDING THE TRIBUNAL DECISION CITED BY THE LD. A.R. I.E. GEHNA VS ITO (SUPRA), WE FIND THAT THIS TRIBUNAL DECISION IS ALSO NOT APPLICABLE IN THE PRESENT CASE. IN THAT CASE, IT WAS HELD BY THE TRIBUNAL THAT THE TRIBUNAL WHILE DECIDING THE APPEAL OF THE ASSESSEE, HAS NOT TAKEN INTO CONSIDERATION THE FINDING OF LD. CIT(A) AND THERE WAS NO WHISPER IN RESPECT OF THE DECISION RELIED UPON BY THE COUNSEL OF THE ASSESSEE DURING THE HEARING OF APPEAL BEFORE THE TRIBUNAL. UNDER THESE FACTS, IT WAS HELD BY THE TRIBUNAL IN THAT CASE THAT SUCH ORDER OF THE TRIBUNAL IS LIA BLE TO BE RECALLED IN TOTO AND TO DECIDE THE MATER AFRESH. IN THAT CASE, IT IS NOTED BY THE TRIBUNAL THAT WHILE TAKING DECISION, THE FINDING OF LD. CIT( A) HAS NOT BEEN TAKEN INTO CONSIDERATION AS THE TRIBUNAL IN THE RELEVANT PARA OF ITS ORDER HAS MENTIONED ABOUT THE ORDER OF THE A.O. ONLY. IT IS FURTHER NOTED BY THE TRIBUNAL IN THAT CASE THAT THAT THERE IS EVEN NO WH ISPER IN RESPECT OF VARIOUS JUDGMENTS RELIED UPON BY THE LD. COUNSEL FO R THE ASSESSEE DURING THE HEARING OF APPEAL BEFORE THE TRIBUNAL. 8. IN THE PRESENT CASE, IN THE RELEVANT PARA OF THE TRIBUNAL ORDER WHICH IS REPRODUCED ABOVE, THE FINDING OF THE TRIBUNAL IS ON THIS BASIS THAT IN ABSENCE OF ANY EVIDENCE REGARDING RENDERING OF SERV ICES TO THE ASSESSEE, THE CIT(A) WAS NOT JUSTIFIED IN CONCLUDING THAT THE SERVICES WERE RENDERED BY THE AGENT. THIS GOES TO SHOW THAT THE FINDING OF LD. CIT(A) WERE DULY CONSIDERED BY THE TRIBUNAL IN THE PRESENT CASE. WHEN WE EXAMINE THE RELEVANT PARA 4.2 OF THE ORDER OF LD. C IT(A), WE FIND THAT THERE IS NO BASIS INDICATED BY LD. CIT(A) FOR REACH ING TO THIS CONCLUSION THAT SERVICES WERE RENDERED BY THE COMMISSION AGENT . HIS DECISION IS ON M.A.NO.256 /AHD/2009 8 THIS BASIS THAT EXPORT SALE HAD INCREASED AND THE D IRECTOR OF THE COMMISSION AGENT HAS CONFIRMED REGARDING THE COMMIS SION RECEIPT AND HAS ALSO PROVIDED THE DETAILS OF PARTIES FROM WHOM EXPORT ORDERS HAD BEEN PROCURED BY HIM. IT WAS ALSO STATED THAT THE DIREC TOR OF THE COMMISSION AGENT COMPANY SRI KAMLESH JAIN WAS FULLY CONVERSANT ABOUT DYES AND CHEMICALS BUT THERE IS NO WHISPER IN THE ORDER OF L D. CIT(A) REGARDING ANY EVIDENCE IN RESPECT OF RENDERING OF SERVICES ES PECIALLY WHEN IT IS NOTED BY THE A.O. IN THE ASSESSMENT ORDER THAT DURI NG HIS STATEMENT, IT WAS STATED BY SHRI KAMLESH JAIN, THE DIRECTOR OF THE AG ENT COMPANY, TO WHOM THE COMMISSION WAS PAID, THAT NO DOCUMENT OF EXPORT ORDER, COPY OF AGREEMENT, COPY OF RETURN ETC. WAS FILED BY THE COM PANY AND FURTHER DETAILS SUCH AS COPY OF MEMORANDUM & ARTICLES OF AS SOCIATION, PHOTOCOPY OF PAPERS SUCH AS QUOTATION/TENDER, BOOKI NG OF ORDER, SHIPMENT OF GOODS ETC. WERE CALLED FOR BY THE A.O. VIDE ORDE R DATED 21.1.2002 AND IN REPLY, IT WAS SIMPLY SUBMITTED BY THE ASSESSEE B EFORE THE A.O. THAT SERVICES WERE RENDERED ON DAY TO DAY BASIS FOR THE ENTIRE EXPORT BY VISITING THE OFFICE OF THE ASSESSEE COMPANY AND NO DOCUMENT WAS PRODUCED IN THE FORM OF CORRESPONDENCE/FAX ETC. WIT H THE PARTIES FROM WHOM IT IS CLAIMED THAT EXPORT ORDERS WERE PROCURED ON BEHALF OF THE ASSESSEE. HENCE, IT CANNOT BE SAID THAT THE ORDER OF LD. CIT(A) WAS NOT CONSIDERED. 9. REGARDING THE JUDGMENT OF HONBLE GUJARAT HIGH C OURT NOTED BY LD. CIT(A) HAVING BEEN RENDERED IN THE CASE OF VOLT AMP TRANSFORMERS PVT. LTD. AS REPORTED IN 129 ITR 105, IT IS SIMPLY STATED BY LD . CIT(A) THAT THIS DECISION SUPPORTS THE CONTENTION OF THE A SSESSEE AND THERE WAS COMMERCIAL CONSIDERATION AND BUSINESS EXPEDIENCY FO R PAYMENT OF THE COMMISSION. WE FIND THAT THIS JUDGMENT OF HONBLE GUJARAT HIGH COURT IS NOT APPLICABLE IN THE PRESENT CASE BECAUSE IN THAT CASE, THE ISSUE INVOLVED WAS AS TO WHETHER THE COMMISSION PAID BY THE ASSESS EE WAS EXORBITANT M.A.NO.256 /AHD/2009 9 AND WHETHER THERE WAS COMMERCIAL CONSIDERATION AND BUSINESS EXPEDIENCY FOR THE PAYMENT OF SUCH EXORBITANT COMMI SSION WHEREAS, IN THE PRESENT CASE, THE ISSUE INVOLVED IS REGARDING A BSENCE OF ANY EVIDENCE REGARDING RENDERING OF SERVICES AT ALL. HENCE, THI S JUDGMENT OF HONBLE GUJARAT HIGH COURT RENDERS NO HELP TO THE ASSESSEE IN THE PRESENT CASE. IF SUCH A JUDGEMENT OF HONBLE GUJARAT HIGH COURT WHIC H IS ON A DIFFERENT QUESTION ALTOGETHER HAS NOT BEEN COMMENTED UPON BY THE TRIBUNAL IN THE IMPUGNED ORDER, IT CANNOT BE SAID THAT IT IS AN APP ARENT MISTAKE IN THE TRIBUNAL ORDER WHICH CAN BE RECTIFIED U/S 254(2). MOREOVER, WE HAVE NOW CONSIDERED THIS JUDGMENT OF HONBLE GUJARAT HIG H COURT AND IN VIEW OF OUR FINDING THAT THIS JUDGMENT IS NOT APPLICABLE IN THE PRESENT CASE BECAUSE THE FACTS ARE DIFFERENT AND HENCE, THIS GRI EVANCE OF THE ASSESSEE THAT THIS JUDGMENT WAS NOT CONSIDERED, HAS BEEN TAK EN CARE OF NOW WITHOUT ANY IMPACT ON THE CONCLUSION. 10. REGARDING THE JUDGMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF ACIT VS SAURASHTRA KUTCH STOCK EXCHANGE LTD. (SUPRA), AND SUBSEQUENT JUDGMENT OF HONBLE APEX COURT IN THE SA ME CASE AS PER WHICH, THE JUDGMENT OF HONBLE GUJARAT HIGH COURT W AS CONFIRMED, WE FIND THAT THESE JUDGMENTS ARE ALSO NOT APPLICABLE I N THE PRESENT CASE BECAUSE THE FACTS ARE DIFFERENT. IN THAT CASE, IT WAS HELD THAT IF A JUDGEMENT OF JURISDICTIONAL HIGH COURT IS NOT APPLI ED OR NOT CITED AND THIS DECISION OF THE TRIBUNAL IS NOT IN ACCORDANCE WITH SUCH DECISION OF JURISDICTIONAL HIGH COURT THEN IT IS A MISTAKE APPA RENT ON RECORD. IN THE PRESENT CASE, WE HAVE SEEN THAT THE JUDGMENT OF HON BLE GUJARAT HIGH COURT RENDERED IN THE CASE OF VOLTAMP TRANSFORMERS PVT. LTD. (SUPRA) IS NOT RENDERING ANY HELP TO THE ASSESSEE IN THE PRESE NT CASE BECAUSE THE FACTS ARE DIFFERENT AND, THEREFORE, IT CANNOT BE SA ID THAT THE IMPUGNED ORDER OF THE TRIBUNAL IS AT VARIANCE WITH THE FINDI NG OF THE JUDGMENT OF HONBLE GUJARAT HIGH COURT. HENCE, THESE TWO JUDGM ENTS CITED BY THE M.A.NO.256 /AHD/2009 10 ASSESSEE IN THE MISCELLANEOUS APPLICATION ARE ALSO NOT RELEVANT IN THE PRESENT CASE. 11. AS PER ABOVE DISCUSSION, WE HAVE FOUND THAT THE RE IS NO APPARENT MISTAKE IN THE TRIBUNAL ORDER AND HENCE, THE MISCEL LANEOUS APPLICATION FILED BY THE ASSESSEE IS REJECTED. 12. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. 13. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD./- SD./- (MUKUL KUMAR SHRAWAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 30/03/2012 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 02/04/2012.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 13/4 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.13/4 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 13/4/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .