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TMI Blog2014 (4) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... e A assessment order, applying the provisions of Section 40A(3) of the Income Tax Act, 1961, the expenditure claimed was disallowed. In an appeal filed by the assessee before the Commissioner of Income Tax, the assessment order was confirmed. Assessee went in appeal before the Tribunal, which, by Annexure C order, allowed the appeal and held that the relationship between the assessee and M/s. Reliance Communication was that of agent and principal and therefore, Section 40A(3) of the Income Tax Act was inapplicable. It is this order which is under challenge before us at the instance of the Revenue. 3. We heard the learned standing counsel for the Revenue and the learned counsel appearing for the assessee. 4. According to the learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gems and Jewellery (362 ITR 272). 6. We have considered the submissions made by both sides. 7. The main issue that arises for consideration is whether the Tribunal was justified in accepting the contention that there existed an agency between the assessee and M/s. Reliance Communication to justify its conclusion that Section 40A(3) was inapplicable. A reading of Annexure C, the Tribunal's order, shows that in para 3.6 of its order, the Tribunal held that the facts and circumstances of the assessee's business are identical to that in the case of S.Rahumathulla v. CIT (Asst.) {127 ITD 440 (Cochin)}, in which the Tribunal held that the relationship between M/s. Vodafone Essar Cellular Limited and the assessee therein was one of princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adopted by this Court in Rahumathulla's case also vide judgment in ITA 315/10. 10. During the course of the submissions, learned counsel for the respondent contended that the question of agency is raised for the first time and that the same is impermissible in an appeal filed under Section 260A of the Income Tax Act. In our view, if the Tribunal had relied on the appellate authority's order or the assessment order and had decided the question of agency, the appellant could not have raised such a contention. As we have already stated, the Tribunal arrived at its conclusions not on the basis of the assessment order or the appellate order, but on the basis of its own previous order, which may have been referred to during the course o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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