TMI Blog2015 (10) TMI 1388X X X X Extracts X X X X X X X X Extracts X X X X ..... second aspect is whether the learned Commissioner has examined all those aspects before directing the AO to disallow the claim. In other words, learned Commissioner is expected to investigate all relevant facts and only thereupon must direct the AO to do the needful required under the circumstances. We have noted that the aspects as discussed hereinabove were not examined by the learned Commissioner based upon certain fundamental evidences such as nature of payment and the contract between the parties. Matter remanded to the Commissioner for passing a fresh order - We direct that the assessee should file requisite information and the agreements before learned Commissioner and fully co-operate in the proceedings. Side by side learned Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial to the interest of revenue ignoring the clear mandate of the circular issued by the Central Board of Direct Taxes explaining amendments to the provisions of section 194C relied upon by the appellant and further directing AO to rectify the assessment to disallow the subscription paid u/s 40(a)(ia) of the Act. This action of Id. CIT is harsh, uncalled for and completely against the principles of Natural Justice. 2. Facts in brief were that an assessment was made u/s.143(3) r.w.s 147 of IT Act, dated 31.12.2008 in respect of the assessee company, which is in the business of a cable network operator SMO . Learned CIT has noted that the assessment was erroneous and also prejudicial to the interest of the Revenue because an amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing services of broadcasting to the assessee. There is a contract and if the terms of the contract are not fulfilled, that is the assessee doesn t pay specific contribution to the channel owner, the services will not be provided to the assessee. Like-wise the assessee is liable to make the payment to the channel owner irrespective of the fact that whether he collects from the individual subscriber or not. The assessment order dated 31.12.2008, is thereof, erroneous to this extent and hence prejudicial to the interest of revenue. I, therefore, direct that the assessment should be rectified to disallow the subscription of ₹ 87,92,136/- u/s. 40(a)(ia) since tax has not been deducted on it as per the provision of section 194C. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell some annexure was not available which was essential to decide the issue hence the matter was restored back for fresh adjudication. 5. From the side of the Revenue, learned CIT-DR, Mr. Subhash Bains appeared and vehemently opposed the arguments of learned AR. Learned DR has pleaded that in a situation when the AO had passed an order without invoking the provisions of Section 40(a)(ia), although it was visible from the facts of the case, the AO had passed an erroneous order. The provisions of Section 194C were directly applicable and the circular no.715 dated 8th August, 1995 has also been over looked by the AO. Therefore, the order was prejudicial to the interest of the Revenue. In support of the arguments, learned DR has cited few de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion if he considers postulates that learned Commissioner is required to scrutiny all relevant facts for holding that the order is erroneous. If necessary facts are not on record but those facts are relevant to arrive at a right conclusion then the learned Commissioner even has the powers to direct the AO to conduct an inquiry afresh and bring all material facts before passing an assessment order. Such a direction of the learned Commissioner cannot be held a wrong direction. 6.1 In view of the above, considering the directions of learned Commissioner, we are of the view that those directions were devoid of certain basic facts. Learned Commissioner was expected to investigate the nature of the payment and for that he was also expected to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined by him. But the second aspect is whether the learned Commissioner has examined all those aspects before directing the AO to disallow the claim. In other words, learned Commissioner is expected to investigate all relevant facts and only thereupon must direct the AO to do the needful required under the circumstances. We have noted that the aspects as discussed hereinabove were not examined by the learned Commissioner based upon certain fundamental evidences such as nature of payment and the contract between the parties. In this situation, we have noted that few Hon ble High Courts have approved the action of the ITAT remanding the matter back to learned Commissioner directing to pass afresh order after further investigation, viz., Marti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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