TMI Blog2011 (11) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the Revenue and perused the orders of the adjudicating authorities with his assistance. Question pertains to additions made in respect of payment of commission to foreign agent by foreign buyer on behalf of the assessee. The Assessing officer did not find the claim made by the assessee genuine. He disallowed entire amount of ₹ 59,27,941/and made addition of said amount to the income of the assessee for the assessment year20042005. 3. When challenged before the CIT(Appeals), CIT(Appeals) by an elaborate discussion, had set aside the order of the Assessing Officer. This was when challenged before the Tribunal, it had confirmed the order of the CIT(Appeals) by relying on its own order for the earlier year. This has been dealt wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ths and the assessee could not take the plea that the foreign agents received payment of commission directly from the buyer, since unless there was a due for making payment for purchase, no amount of commission would become payable and no one would pay such commission in advance. The Assessing Officer further observed that names and addresses of foreign agents did not confirm the actual payment and therefore, disallowed the claim of commission. 17. As can be seen from the order of the Commissioner (Appeals), before the Commissioner (Appeals), the assessee had filed confirmations from agents acknowledging receipt of commission which was paid for securing export order. It was the case of the assessee that considering the nature of servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter appreciating the evidence on record found that the receipt of commission amount had been duly confirmed by the agents which in turn meant that the amount which had been deducted from the invoice value actually represented commission payments which were finally received by the agent. This had been done in accordance with the terms and conditions agreed upon between the buyers and the seller, even though there was no formal agreement. The agents had unequivocally confirmed and reconfirmed the nature of the transactions and that the absence of any formal agreement could not be held to be a ground to dismiss the claim of the assessee. There were clear contra confirmations from the agents. Thus, once the genuineness of the commission as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee, no such income had therefore accrued to the assessee and this was because of an obligation or compulsion to deduct the commission from the export invoices which clearly showed this to be a case of diversion of income by overriding title. The amounts deducted from the export invoices were thus clearly allowable as deduction. 22. From the facts noted hereinabove, it is apparent that the conclusion arrived at by the Tribunal is based upon findings of fact recorded by it after appreciating the evidence on record, which have not been dislodged by the revenue by pointing out any evidence to the contrary. The reasons assigned by the Tribunal for arriving at its conclusion are reasonable and convincing. On behalf of the revenue nothi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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