Ita/731/2018 Of Pavel Garg v. Principal Commissioner Of Income Tax-13

$~4 *IN THE HIGH COURT OF DELHI AT NEW DELHI+ITA 731/2018PAVEL GARG..... AppellantThrough:Mr. Rakesh Gupta, Mr. Rohit KumarGupta and Ms. Monika Ghai, Advs.versus PRINCIPAL COMMISSIONER OF INCOME TAX-13 ..... RespondentThrough:Mr. Asheesh Jain, Senior StandingCounsel. CORAM:HON'BLE MR. JUSTICE SANJIV KHANNAHON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANIO R D E R%28.11.2018 CM APPL.27246/2018 For the reasons stated in the application, the delay of 57 days in re-filing is condoned. ITA 731/2018 The counsel for the respondent has obtained instructions in terms ofthe last order and states that this is a case of remand. The Income TaxAppellate Tribunal (‘Tribunal’, for short) had to record findings and makeobservations to set aside the order of Commissioner of Income Tax(Appeals). This was necessary to pass an order of remit to the AssessingOfficer. The Assessing Officer has been asked to re-examine the claim fordeduction of alleged commission payments of Rs. 53,86,004/- and Rs.1,06,11,990/- allegedly paid to Satish Kumar Goel and JB Exports Ltd.,respectively. 2.Learnedcounselfortheassesseesubmitsthatsomeoftheobservations made in the impugned order dated 01.11.2017 passed by the Tribunal could be read by the Assessing Officer as final and bindingfindings on merits. This would cause prejudice to the assessee and foreclosethe entire issue inspite of remand for fresh consideration. 3.We have heard both sides, perused the documents and observations ofthe Tribunal. We do not find any justification and reason to review and setaside the direction for remand. However, we are not making any commentsand giving detailed reasons on merits to avoid prejudice. Observations of theTribunal are factual. 4.Tribunal was required to set aside the findings recorded byCommissioner of Income Tax (Appeals) and therefore, certain observationshave been made.These observations were only for the decision of theappeal by the Tribunal and are not to be treated as conclusive findings onmerits. If the findings were final and conclusive, then no order of remit wasnecessary. 5.The Assessing Officer has been asked to re-examine the issue of thecommission allegedly paid in its entirety on merits. 6.The Assessing Officer would examine the question of genuineness ofthe commission payment and all aspects relating to allowability of the statedexpenditure under Section 37 or Section 28 of the Income Tax Act, 1961.We also clarify that we have not interfered with the direction of the Tribunalregarding production/appearance of the commission agents for verificationabout rendition of services, production of relevant information and details toprove allowability of commission expenses. In case of non-appearance,reasons for non-appearance and legal effect thereof would be examined. 7.Recording the aforesaid, we dispose of the present appeal. We clarifythat we have not made any comments on merits. Dasti under the signature of Court Master. SANJIV KHANNA, J. ANUP JAIRAM BHAMBHANI, J. NOVEMBER 28, 2018/uj