TMI Blog2014 (4) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... According to the learned counsel for the Revenue, it was without any material before the Tribunal that the Tribunal concluded that the relationship was of principal and agent and that Section 40A(3) was inapplicable. Therefore, it was contended that the order passed by the Tribunal was illegal. On the other hand, learned counsel for the respondent assessee referred us to the assessment order which showed that the assessee had produced original TDS certificate from M/s. Reliance Communication. Referring to Section 194H of the Act and its explanation, learned counsel contended that the question of TDS can arise only in a case of agency. In support of his contention, counsel invited our attention to the judgment of the Gujarat High Court in Ah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee therein was one of principal and agent. This finding of the Tribunal therefore shows that it was entirely on its conclusion in the case of Rahumathulla that the Tribunal held that there existed an agency between the assessee and M/s.Reliance Communication and that this conclusion of the Tribunal was not based on any material that was available before it. 8. 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. Instead, 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. Therefore, this conclusion of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y have been referred to during the course of hearing. In such a case, the appellant could not have disputed the issue of agency before the Tribunal. Therefore, we do not find any substance in the contention now urged that the appellant did not dispute the issue of agency before the Tribunal and therefore should be precluded from raising that issue before this Court. 11. Therefore, we set aside Annexure C order passed by the Tribunal in ITA No.153/11 and remit the matter to the Income Tax Appellate Tribunal, Cochin Bench. The Tribunal is directed to reconsider the matter with notice to the parties and giving the respondent an opportunity to produce additional materials before it to prove its case of agency and on that basis, the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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