TMI Blog2015 (6) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... requires fresh examination at the end of the AO. Accordingly, we set aside the order of ld. CIT(A) on this issue and restore the same to the file of the AO with a direction to examine the same afresh by considering about the applicability of the decisions referred in the case of GE India Technology Centre Private Ltd [2010 (9) TMI 7 - SUPREME COURT OF INDIA] to the facts prevailing in the instant case. - Decided in favour of assessee for statistical purposes. Allowing interest expenditure claimed against the house property income - Held that:- The assessment order shows that the assessee has agreed for the disallowance of the interest so claimed, since it was pointed to him by the AO that the housing loan was not taken in respect of hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 013 passed by the ld. CIT(A)-35, Mumbai and they relate to assessment year 2010-11. 2. The assessee is aggrieved by the decision of ld. CIT(A): a) in confirming the disallowance of export commission; b) in deleting the interest u/s 234B, 234C and 234D and setting aside the initiation of penalty proceedings u/s 271(1)(c) of the Income Tax Act, 1961 (the Act). 3. The Revenue is also in appeal in respect of following issues : a) Allowing interest expenditure claimed against the house property income; b) Deleting the addition made u/s 69C of the Act relating to purchases. 4. We have heard the parties and perused the records. The assessee is a wholesaler in hardware items. He filed his return of income for the year under con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdingly, the AO took the view that the assessee should have deducted tax at source from the Commission payment and since there was failure to do so, he disallowed commission expenditure of ₹ 14.39 lakhs by invoking the provisions of section 40(a)(i) of the Act. The AO also placed reliance on the decision rendered by Authority for Advance Ruling in the case of M/s SKF Boilers and Driers Pvt.Ltd. The ld.CIT(A) also confirmed the same. 6. Before us, the ld. AR placed reliance on the decision of Mumbai Bench of the Tribunal in the case of M/s Indo Industries Limited V/s ITO in ITA No.183/Mum/2014 (AY-2010-11) dated 14.11.2014, wherein the Tribunal has held that commission paid to the agents located outside India does not require deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so the decisions of Hon ble Supreme Court or High Courts or Tribunal. Accordingly, we are of the view that this issue requires fresh examination at the end of the AO. Accordingly, we set aside the order of ld. CIT(A) on this issue and restore the same to the file of the AO with a direction to examine the same afresh by considering about the applicability of the decisions referred supra to the facts prevailing in the instant case. The assessee is also directed to furnish all the details relating to expenditure that may be called by the AO. 8. The issue relating to charging of interest under the provision of the Act is consequential in nature and the issue relating to initiation of penalty proceedings is premature and hence they do not req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Sales Tax Department in respect of the parties, referred above. Accordingly, the AO took the view that the purchases to the tune of ₹ 38.69 lakhs have to be treated as unexplained expenditure. Accordingly, he assessed the same u/s 69C of the Act. 11. The ld. CIT(A) deleted the addition and hence the Revenue is in appeal before the Tribunal. 12. The ld. DR strongly placed reliance on the order of Assessing Officer. 13. On the other hand, the ld. AR submitted that the additions made in the case of some other assesses on identical reasons have been deleted by the Co-ordinate Benches of the Tribunal in the following cases : a) Ramesh Kumar and Co V/s ACIT in ITA No.2959/Mum/2014 (AY-2010-11) dated 28.11.2014; b) DCIT V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to cross examine the sellers, which is required to be given as per the decision of Hon ble Kerala High Court in the case of Ponkunnam Traders (83 ITR 508 102 ITR 366). Accordingly, the Ld CIT(A) has deleted the impugned addition. On a careful perusal of the decision rendered by Ld CIT(A) would show that the first appellate authority has analysed the issue in all angles and applied the ratio laid down by the High Courts and Tribunals in deciding this issue. Hence, we do not find any reason to interfere with his order on this issue. 14. In the result the appeal of the revenue is partly allowed and the appeal of the assessee is treated as partly allowed for statistical purposes. Pronounced accordingly in the open court on 27th Mar, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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