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TMI Blog2010 (12) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be recalled and fresh hearing of the appeal should be ordered. 2. The assessee is a partnership firm engaged in the business of stevedoring. It claimed to have paid commission of Rs. 1,71,49,967 during the year to various parties which were 14 in number. These concerns were sister concerns or associates of the assessee-firm. The Assessing Officer disallowed the commission on the ground that there was no evidence to show whether any services were rendered by those concerns. For this purpose, he relied on the statements recorded from S.K. Parikh, chief finance controller, Cyrus S. Cooper, chief accounts officer and C.A. Alfonso, operational manager of the assessee-firm in the course of the survey proceedings conducted u/s.133A. The appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer had dropped the penalty proceedings initiated for the earlier years was not on the merits, but only because the reassessment proceedings for those years were held to be invalid. The orders of the Assessing Officer dropping the penalty proceedings for asst. years 1991-92 to 1997-98 were passed on 28-3-2005, after the CIT(A) had passed his orders for those years on 28-8-2003, confirming the disallowance of the commission for the asst. years 1991-92 to 1994-95 and holding the reopening of the assessments for the assessment years 1995-96 to 1997-98 to be invalid. The orders of the CIT(A) were upheld by the Tribunal by orders passed on26-9-2006 and27-2-2007. Thus the Tribunal erred in holding that the penalty proceedings for the earlier ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the quantum proceedings has been rejected, where similar contentions were raised by the assessee. (d) As the rule of res judicata is not strictly applicable to the income-tax proceedings and since each assessment year is distinct and separate, the fact that the Assessing Officer had dropped the penalty proceedings for the earlier years has rightly not been considered to be relevant by the Tribunal. On the basis of the above submissions, the learnedSr. DRcontended that the order of the Tribunal did not contain any mistakes apparent from the record and there was no need to recall its order. 6. We have carefully considered the rival contentions and gone through the contents of the miscellaneous application and the relevant material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee, for the year under appeal, concealed its income or furnished inaccurate particulars thereof. Whether the assessee concealed its income or furnished inaccurate particulars thereof is a matter to be examined on year to year basis and the fact that the Assessing Officer had dropped the proceedings for one or more earlier years is not conclusive of the question when it crops up in a subsequent year. The question before the Tribunal was whether, for the year under appeal, the assessee was able to prove whether the payees of the commission rendered any services and if so the nature of the same. These are all matters which have to be decided on the basis of the evidence and the Tribunal found none in support of the claim for commission pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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