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2014 (4) TMI 634 - HC - Income TaxApplicability of section 40A(3) of the Act – Relationship of Agency present or not - Whether the Tribunal was justified in accepting the contention that there existed an agency between the assessee and M/s. Reliance Communication to justify its conclusion that Section 40A(3) was inapplicable – Held that:- The question of agency is a question on fact and that factual question cannot be resolved merely applying the reasoning adopted by the Tribunal in some other case - such an issue has to be answered with reference to the facts and circumstances of each case and with reference to the material available before the Tribunal - if as a matter of fact, there existed an agency between the assessee and M/s Reliance Communication Limited, there is no reason why the assessee should be denied an opportunity to produce materials disclosing the agency and also Form 16A before the Tribunal so that the Tribunal can reconsider the claim of the assessee that they were an agent of M/s.Reliance Communication. The Tribunal arrived at its conclusions not on the basis of the assessment order or the appellate order, but on the basis of its own previous order - the appellant could not have disputed the issue of agency before the Tribunal – there was no substance in the contention now urged that the revenue did not dispute the issue of agency before the Tribunal and therefore should be precluded from raising that issue before the Court – thus, the order is remitted back to the Tribunal for reconsideration of the matter – Decided in favour of Revenue.
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