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2010 (10) TMI 641 - AT - Income TaxAddition - DEPB - Commission as a sale - the ingredients of what is commission are contained in the Explanation to Sec. 194H - if at all such commission agent had rendered any service to the assessee, then the assessee would have paid commission to such party directly through the banking channels, with proper and prior approval of the RBI - once the genuineness of the commission payments as well as its justification of having been wholly and exclusively incurred for the purpose of assessee’s business is established, the same becomes admissible as deduction under section 37(1) of the I. T. Act - it is necessary for us to state that the assessee has accounted the export sales turnover at the net figure and claimed DEPB benefits on the gross amounts in accordance with the guidelines issued by the RBI in the light of the Export Import Policy of the Government of India - As the assessee has not paid to the foreign buyers any amount by way of commission, but it was only adjustment through the export invoices by way of commission/discount, Section 194H also had no role to play - Thus addition deleted Regarding deduction under section 80HHC - no such ground of appeal was raised and argued before Learned Commissioner of Income Tax (Appeals) - CIT(A) has held that the advance tax paid was less than 90% of the tax assessed and therefore, the assessee was liable to pay interest under the said section - In the result, the appeal of the Revenue as well as the cross objection of the assessee both are dismissed
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