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2022 (9) TMI 707 - Income Tax
Disallowance of commission paid to the directors - Issue recurring in nature - principle of res-judicata - Scope of principle of consistency - directors to whom the said commission is paid are having substantial shareholding and they have been paid dividend in the garb of commission which is not allowable - HELD THAT:- The Hon’ble High Court [2019 (11) TMI 1008 - GUJARAT HIGH COURT] after considering the contention of both the parties, dismissed the appeal of revenue by holding that payment of commission was made by the assessee company to its director have been allowed for five continuous assessment years. Nothing has been pointed out to show that the position has changed in the year under consideration. Under such circumstances, the Tribunal was wholly justified in allowing the grounds of appeal.
The grounds of appeal, therefore, does not rise to any question of law, much less, a substantial question of law, warranting interference - Hon’ble Supreme Court Radhasoami Satsang [1991 (11) TMI 2 - SUPREME COURT] wherein held that, where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and the parties have been allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in subsequent year. We find that no change in fact for the year under consideration is brought to our notice to take the other view, therefore, respectfully following the decision of Coordinate bench, which has been affirmed by the Hon’ble Jurisdictional High court, we do not find any merit in the grounds of appeal raised by revenue. All the submissions or the objections raised by the ld. CIT-DR for the revenue has already been considered by our predecessor while deciding the similar issue in appeal for A.Y. 2011-12, 2013-14 and 2014-15. In the result, ground No. 1 of appeal is dismissed.
Unexplained cash credit u/s 68 - HELD THAT:- Hon’ble Supreme Court in PCIT Vs Montage Enterprises P Limited [2018 (10) TMI 1452 - SC ORDER] held that where the High Court upheld the order of Tribunal in deleting the addition made under Section 68 in respect of trade advances on the ground of that the said advances were adjusted against sales made in the subsequent assessment years, the special leave filed against the said decision was to be dismissed.
We find that in Ayachi Chandrashekhar Narsangji [2013 (12) TMI 372 - GUJARAT HIGH COURT] though, on the context of repayment of loan in subsequent year, also held that when the department had accepted repayment of loan in subsequent years, no addition was to be made in the current year on account of cash credit. At the cost of repetition, we may mention that once the Assessing Officer has accepted the sale against the advances of previous year and the assessee has offered due tax thereon, no addition against the trade advance was liable to be added. With the aforesaid additional observation, we affirm the order of ld. CIT(A). In the result, ground No. 2 of appeal raised by revenue is also dismissed.