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2020 (9) TMI 1255 - MADRAS HIGH COURTTDS u/s 195 - disallowance of BD commission - Tribunal remitting the issue of disallowance of BD commission without deciding whether the appellant was liable to deduct tax at source - Whether the appellant was not able to deduct tax source in respect of the BD commission paid by it considering the provisions of the Act and the DTAA between India and US particularly when the recipient did not have any permanent establishment in India? - HELD THAT:- There can be no quarrel with regard to the aspect that the Tribunal is the final fact finding Authority. Nevertheless, the jurisdiction of the Tribunal is confined to the lis before it and more particularly in the instant case, it is the assessee's appeal and they cannot be worse off in their appeal and the Tribunal has no jurisdiction to direct the AO by virtually reopening the proceedings concluded under Section 201 of the Act pursuant to the order passed by the CIT(A) concerned. Tribunal ought to have referred to the said order and if, in its opinion, the order does not bind the Tribunal, then, adequate reasons ought to have been assigned by the Tribunal in that regard. We find that nothing was recorded by the Tribunal in the impugned order. Argument of Revenue of the impugned order will clearly show that the impugned order is an order of remand with a direction to the Assessing Officer to redo the matter and that no substantial question of law would arise in this appeal for the Court to interfere with the impugned order - We do not agree with the said submission since the legal position is that an order or a judgment has to be read in its entirety and cannot be read in a truncated fashion. Thus, what flows from the observations and directions in paragraph 11 of the impugned order has to be read along with paragraph 13. In fact, in paragraph 11, there are pointed observations to the Assessing Officer, which appear to be wholly adverse to the assessee. Which we need to point out is that the Tribunal observed in paragraph 11 that the AO has to examine as to whether there was any concerted effort to shift profits by camouflaging it as commission on sales. This was never the case of the Revenue either before the AO or before the CIT(A) or for that matter before the Tribunal. The tenor of the observations gives a different impression to the transaction done by the assessee, which, in our considered view, was not called for. In the light of the above discussions, we hold that the Tribunal exceeded in its jurisdiction while remanding the matter to the AO, which has the effect of reopening a concluded proceedings vide order dated 03.2.2014 passed by the concerned CIT(A). Accordingly, the above tax case appeal is allowed and substantial question of law Nos.1 and 2 are answered in favour of the assessee.
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