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2013 (5) TMI 529 - ITAT MUMBAIDisallowance of commission payment in respect of export - Held that:- On examining the export invoices, it turns out that there is a clear mention of such commission on the very face of the export invoices that the commission on export to these two persons was deposited in their respective NRE accounts at the rates agreed in conformity with the Memorandum of understanding, substantiates the factum of the assessee having actually paid commission to these two parties at Rs. 35.37 lakh. Therefore, order for granting deduction to this extent. In favour of assessee. Commission on domestic purchases - Held that:- It is a fundamental proposition that the onus of proving the rendering of services is on the assessee for a genuine claim of deduction on account of commission. As the assessee has failed to lead any evidence in respect of services provided by these persons no deduction can be allowed for a sum of Rs. 18.73 lakh as Commission on domestic purchases - Against assessee. Disallowance of Clearing and forwarding expenses u/s 40(a)(ia) - Held that:- As assessee fairly admitted that no tax was deducted at source in respect of payments at Sr.nos.8 and 9 the disallowance u/s 40(a)(ia) was rightly made. As regards item at Sr.nos. 4 and 5, assessee pointed towards certain material showing that these parties obtained certificates from the Department for no deduction of tax at source as additional evidence & as regards item in Sr.no.10, the real character of this payment was of purchase and not payment of Clearing and forwarding charges relied on certain documents to indicate that this payment was towards some purchases was also filed through additional evidence - therefore remit the case for fresh decision - Partly in favour of assessee for statistical purposes. Disallowance of traveling expenses - Held that:- As during the course of assessment proceedings assessee placed on record copies of invoices of M/s Perfect Tours and Travels showing payment of Rs. 2.70 lakh as an additional evidence, thus it would be in the interest of justice if restore the issue back to the file of A.O. for examining the deductibility or otherwise of Rs. 2.70 lakh in the light of the fresh evidence filed by the assessee - in favour of assessee for statistical purposes.
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