M/S Andritz Hydro Pvt. Ltd v. Commissioner Of Income Tax

ITA No. 265 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH M/s Andritz Hydro Pvt. Ltd. Versus Commissioner of Income Tax ITA No. 265 of 2010 Date of Decision: 30.7.2010 ....Appellant. ...Respondent. CORAM:-HON'BLE MR. JUSTICE ADARSH KUMAR GOEL.HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Ashwani Taneja, Advocate and Ms. Jyoti, Advocate for the appellant. ADARSH KUMAR GOEL, J. 1.This appeal has been preferred by the assessee underSection 260A of the Income Tax Act, 1961 (in short “the Act”) againstthe order dated 20.11.2009 passed by the Income Tax AppellateTribunal, Bench 'I', New Delhi (hereinafter referred to as “the Tribunal”)in ITA No. 316/Del/2009 for the assessment year 2003-04, proposing toraise the following substantial questions of law:- (a)Whether Tribunal erred in law in restoring theissue of commission to Ld. CIT (A) byrecording incorrect finding that additionalevidences were not confronted to Ld. A.O.?issue of commission to Ld. CIT (A) byrecording incorrect finding that additionalevidences were not confronted to Ld. A.O.?(b)Whether the order of Tribunal is perverse in asmuch as it ignores the findings recorded by Ld.much as it ignores the findings recorded by Ld. CIT (A) that additional evidences wereconfronted to Ld. A.O.? (c) Whether Tribunal erred in law in holding thatadditional evidences were not confronted to Ld. A.O., or Ld. CIT (A) admitted additionalevidences in violation of rule 46A when therewas no such ground of appeal nor any suchargument was advanced by Ld. DR? (d) Whether Tribunal decided the issue withoutgiving opportunity of being heard?” 2. 2.The assessee is engaged in manufacture and sale ofturbine and other equipments. In the course of assessment, it claimeddeduction of Rs.6,45,53,688/- towards commission expenses. TheAssessing Officer disallowed the same as he was not satisfied aboutthe services allegedly rendered by the commission agents. Theassessee failed to furnish documentary evidence in support of its case.On appeal, the Commissioner of Income Tax (Appeals) [in short “CIT(A)”] considered additional evidence led by the assessee and held thatthe assessee was able to establish the expenditure incurred as well asits expediency for its business. On further appeal to the Tribunal by therevenue, it was noticed that the CIT (A) was dealing with several issuesand on some of the issues the matter was remanded while on this issuethere was no remand and the documents being voluminous which wereproduced for the first time before the CIT (A), the remand would havebeen a better course. Accordingly, the matter was directed to beremanded to the Assessing Officer to examine the additional evidence relied upon by the assessee after giving due opportunity to it. 3.We have heard learned counsel for the assessee. 4.Learned counsel for the appellant submits that observationof the Tribunal that there was remand in respect of some issues and noremand on the issue in question is erroneous as the CIT (A) hadobtained the remand report and took decision after considering the saidreport. He also submits that the CIT (A) has no power to remand afteramendment to Section 251 by Finance Act, 2001. 5.We are unable to accept the submission. Even if it isassumed that if remand report was considered by the CIT (A), it cannotbe held that any substantial question of law arises from the order of theTribunal. 6.The matter has only been remanded to the AssessingOfficer and the assessee will get full opportunity to put forward itspoints. 3.We have heard learned counsel for the assessee. 4.Learned counsel for the appellant submits that observationof the Tribunal that there was remand in respect of some issues and noremand on the issue in question is erroneous as the CIT (A) hadobtained the remand report and took decision after considering the saidreport. He also submits that the CIT (A) has no power to remand afteramendment to Section 251 by Finance Act, 2001. 5.We are unable to accept the submission. Even if it isassumed that if remand report was considered by the CIT (A), it cannotbe held that any substantial question of law arises from the order of theTribunal. 6.The matter has only been remanded to the AssessingOfficer and the assessee will get full opportunity to put forward itspoints. 7.As regards the submission that there was no power ofremand neither any question has been proposed in the memo of appealnor such a plea can be sustained under Section 251 of the Act. Thepower of CIT (A) is to confirm, reduce, enhance or annul theassessment. Under clause (c), the said authority can pass such ordersas it thinks fit. The words “or he may set aside and refer the case backfor fresh assessment” were deleted. We might have considered thissubmission but for the fact that it is not the order of the CIT (A) underwhich the matter has been remanded but by the Tribunal and it is notthe case of the appellant that the Tribunal does not have any power toremand the matter to the Assessing Officer. ITA No. 265 of 2010 -4- 8.No substantial question of law arises in the appeal.9.The appeal is dismissed. (ADARSH KUMAR GOEL) JUDGE July 30, 2010(AJAY KUMAR MITTAL)gbsJUDGE