United Liner Agencies (Stevedores v. Commissioner Of Income-Tax,Central Iii And Anr

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL No. 5643 of 2010. United Liner Agencies (Stevedores) ... Appellant. Versus Commissioner of Income-tax,Central III and anr. ... Respondents. Mr Pankaj Toprani with Mrs Usha Dalal for the appellant.Mr Vimal Gupta for the respondents. CORAM : J.P. Devadhar & A.R. Joshi, JJ. DATE : 17[th] November,2011. P.C. :- 1.Whether the ITAT was justified in confirming the disallowance in respect of commission paid by the assessee to various sister concerns, is the question raised in this appeal. 2. The CIT(A) and the ITAT have rejected the appeal filed by the assessee on the ground that the assessee has not been able to prove that actual services have been rendered by the sisters concerns for which the commissions have been paid by the assessee. From the order passed by the ITAT in Misc. Application No. 89/Mum/2010 in ITA No.2660/Mum/2002 relating to the AY-1998-1999 dated 30[th] April, 2010, it is seen that the assessee had stated 2itxa-5643-10 before the ITAT that the sister concern had in fact provided adequate staff to whom proper salaries were paid. Shri S.K. Parikh, Finance Manager of the Assessing Company has also filed an affidavit dated 19[th] October, 2011, wherein it is stated on oath that out of the 14 sister concerns, 10 sister concerns had sufficient employees who had rendered the services for which the commissions have been paid by the assessee. In these circumstances, in our opinion, it would be just and proper to restore the issue to the file of the Assessing Officer for fresh consideration of the aforesaid question in accordance with law. 3.Accordingly the impugned order dated 28[th] April, 2006 in ITA No. 2660/Mum/2002 and 2507/Mum/2002 relating to the AY-1998-99 as also the order of the Assessing Officer and CIT (A) in respect of the disallowance of commission expenses is set aside and the issue is restored to the file of the Assessing Officer for fresh consideration in accordance with law. Accordingly, the appeal is disposed of with no order as to costs. We make it clear that we have not expressed any opinion as to the correctness of the statements made by the assessee regarding the services rendered by the employees of the assessees’ sister concerns and it will be open to the assessing officer to go into the correctness of the said statements and pass appropriate order as he deems fit.4.The appeal is disposed of accordingly with no order as to costs. (A.R.Joshi,J) (J.P.Devadhar,J.)