2009 (10) TMI 452

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... the court was delivered by C. N. Ramachandran Nair J.- Even though several questions are raised by the Revenue in the connected appeals filed against the very same assessee for the assessment years 2001-02 to 2004-05, we notice that there is only one question that could be treated as a substantial question of law, which is reframed by us as follows : "Whether on the facts and in the circumstanc .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... proprietorship concern of the managing director the assessee paid higher discount of 10 per cent. which is double the normal rate. The Assessing Officer noticed that the purpose is to evade payment of tax in respect of 5 per cent. because the managing director's concern being engaged in export is entitled to deduction under section 80HHC of the Income-tax Act, 1961. Even though the assessee put f .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... inst which these appeals are filed by the Revenue. 4. On going through the Tribunal's order and after hearing both sides, we are unable to sustain the order of the Tribunal because the Tribunal assumed the claim of the assessee that the additional discount is attributable to the packing cost incurred by the managing director as true. In order to prove that the managing director was left with pack .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ility for packing. We notice that the Tribunal assumed certain facts which were contrary to the facts found by the Assessing Officer and confirmed in first appeal. We therefore allow the appeals by vacating the orders of the Tribunal. However, we feel that disallowance cannot be restored as such because the managing director was stated to be engaged in packing at least for subsequent years and if .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... llate Tribunal and remand the assessments to the Assessing Officer for giving an opportunity to the assessee as well as to the managing director to prove that packing was done by the managing director to justify additional discount granted and if the assessee fails to do so, disallowance can be made in the assessment. 5. As already stated other issues pertaining to disallowance of small items of .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X