The Commissioner Of Income Tax – 8, Mumbai v. M/S.haria Exports Limited

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.2417 OF 2011 The Commissioner of Income Tax – 8, Mumbai..Appellant. Versus M/s.Haria Exports Limited ..Respondent. None for the appellant.None for the respondent. CORAM : J.P. Devadhar &M.S. Sanklecha, JJ. DATE : 6[th] March 2013 P.C. : 1.In this appeal by the Revenue for assessment year 2002-03, following questions of law have been proposed for our consideration. “a)Whether, on the facts and circumstances of the case and in law, the Tribunal was justified in allowing the assessee's claim of deduction of the entire commission of Rs.1,00,97,285/- against the export invoices of non-EOU units of the assessee even though the assessee had failed to furnish any evidence in support of such claim before the AO and the CIT (A) ?Tribunal was justified in allowing the assessee's claim of deduction of the entire commission of Rs.1,00,97,285/- against the export invoices of non-EOU units of the assessee even though the assessee had failed to furnish any evidence in support of such claim before the AO and the CIT (A) ? b)Whether, on the facts and circumstances of the case and in law, the Tribunal was correct in holding that the AO was not justified in apportioning the commission expenses of Rs.1,00,97,285/- between the EOU and the non-EOU units of the assessee and allowing the assessee's claim of higher deduction under Section 10B of the Act Tribunal was correct in holding that the AO was not justified in apportioning the commission expenses of Rs.1,00,97,285/- between the EOU and the non-EOU units of the assessee and allowing the assessee's claim of higher deduction under Section 10B of the Act even though the assessee had failed to furnish independent evidence in support of its claim that the entire commission was paid in respect of exports of the non-EOU unit and no commission was paid in respect of exports of the EOU unit ? c) Whether, on the facts and circumstances of the case and in law, the Tribunal was justified in accepting the mere, self serving statement of the assessee that it had given different description on the invoices of the exports of the EOU unit and on the invoices of the non-EOU unit, without furnishing any independent, material evidence to distinguish the exports from the EOU unit vis-a-vis the non-EOU unit ?”Tribunal was justified in accepting the mere, self serving statement of the assessee that it had given different description on the invoices of the exports of the EOU unit and on the invoices of the non-EOU unit, without furnishing any independent, material evidence to distinguish the exports from the EOU unit vis-a-vis the non-EOU unit ?” 2.Although numerous questions have been raised, the hub of the dispute is, whether the Tribunal was justified in allowing the respondent – assessee's claim for deduction of commission paid against export invoices of non-EOU units, when the case of the Revenue is that the commission has been paid also on EOU units. Therefore, according to the Revenue, the expenditure on commission be distributed between the EOU and non-EOU units in proportion of their turn-over. 3.The Tribunal in the impugned order has recorded a finding of fact that the commission was expended only in respect of non-EOU units. This conclusion was reached on the basis of the details placed before the authorities giving particulars of invoice numbers, name of parties, amount of invoice and commission paid relating to each export. These invoice numbers and parties, the Tribunal found, were relatable only to the invoices issued by a non-EOU units. In view of the above finding of fact, the Tribunal concluded that there is no justification in allocating the commission paid to the EOU units even on proportion of their turn-over. 4.Since the decision of the Tribunal is based on finding of fact, we see no reason to entertain the proposed questions of law. Accordingly, the appeal is dismissed with no order as to costs. (M.S. Sanklecha, J.) that there is no justification in allocating the commission paid to the EOU units even on proportion of their turn-over. 4.Since the decision of the Tribunal is based on finding of fact, we see no reason to entertain the proposed questions of law. Accordingly, the appeal is dismissed with no order as to costs. (M.S. Sanklecha, J.) (J.P. Devadhar, J.)