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2020 (10) TMI 788 - AT - Income TaxDisallowance of expenditure of TDS on export commission - discharge of the liability - as the case of the assessee that it has paid export commission as a gross amount which included applicable TDS and by mistake the assessee has separated the export commission and the TDS payable - HELD THAT:- No material has been brought on record to show that the assessee has to bear the TDS liability on account of the payees as per any contractual agreement. At least, no material evidence to indicate existence of such contractual terms and obligations has not been furnished either before the Departmental Authorities or even before us. In the absence of any evidence, no factual finding can be recorded to the effect that the assessee has incurred such expenditure in terms of any contractual obligation. If the assessee through proper evidence can prove that the TDS liability was incurred by it in terms of any contractual obligation, the ratio laid down in case of BOB Cards Ltd. [2012 (7) TMI 155 - ITAT, MUMBAI] would be squarely applicable and the expenditure has to be allowed. However, the existence of a contractual obligation requires factual verification by the AO - we restore the issue to the Assessing Officer for factual verification and if it is found that the expenditure was incurred on account of contractual obligation, it has to be allowed. - Assessee Ground is allowed for statistical purposes.
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