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TMI Blog2016 (6) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... hands of the appellant on a substantive basis even though on the basis of an application filed by M/s. Siemens Ltd. before the Settlement Commission admitting the unsubstantiated commission payments as its own income and the Settlement Commission had accepted such disclosure by M/s. Siemens Ltd. and the income of the said company for the assessment years 2001-02 and 2002-03 had been recomputed on that basis? 2. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in holding that the alleged commission receipts from M/s. Balaha Chemicals and M/s. Gem Enterprises were assessable in the hands of the appellant even though the said amounts had been assessed in their respective hands and the appeals filed by those concerns had been dismissed?" 4. The substantial questions of law framed in T.C.A.Nos. 169 to 174 of 2012 are as follows:- "1. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in holding that the alleged commission receipts from M/s. Siemens Ltd. were assessable in the hands of the appellant on a substantive basis even though on the basis of an application filed by M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002-03 and 2003-04, on 6.3.2006, disallowing the commission claimed by the father-assessee to have been paid to third parties. 12. Without challenging the Orders of Assessment by way of appeal, the father-assessee filed independent applications under Section 154 for rectification. It is pertinent to note that these applications for rectification were filed after more than two years and 8 months. The only ground on which rectification was sought was that the company from which the father-assessee received commission, went before the Settlement Commission, accepted the payments made to the father-assessee as un-substantiated payments, got them treated as part of their income, paid tax and also got immunity from further action. 13. The petitions filed under Section 154 of the Act were dismissed by a non-speaking one line order dated 30.3.2009 by the Assessing Officer. But by a speaking order, the Commissioner of Income Tax (Appeals) allowed the appeals on 29.05.2009, holding that there was an error apparent which could have been corrected by the Assessing Officer. 14. The Revenue filed Second Appeals before the Income Tax Appellate Tribunal. These appeals were allowed by the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the father-assessee acted as a conduit for some other person. 20. The payments received by the father-assessee in the form of cheques, were also deposited by him into his bank account and immediate withdrawals of cash was observed from the accounts. Therefore, two things would follow. They are (1) either these cash withdrawals were for payment to the persons to whom they were actually intended or (2) they were paid back to M/s. Siemens Limited. These two things that follow as a corollary, will not amount to categorisation of payment. Therefore, we are unable to accept the contention that the Tribunal made a categorisation not found by two lower authorities. 21. It is true that by an order passed on 7.1.2008, the Settlement Commission, Mumbai not only added these amounts as the income of M/s. Siemens Limited, but also taxed them and granted them immunity from other proceedings. But the same would not tantamount to a protection granted to other persons who are subjected to protective orders of assessment. 22. In a Circular issued by the Central Board of Direct Taxes, bearing No.71, dated 20.12.1971, the Board has indicated that once the same income is assessed as a protectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect view taken by the Tribunal. 28. While the treatment of the payment made by M/s. Siemens Limited at the hands of the appellant herein, after it was treated differently at the hands of M/s. Siemens Limited can, given some allowance, be treated as an error apparent, the moment it is shown to have been rejected in the order of Assessment, it would become at the most a mistake correctable on an appeal but not an error apparent. Hence, the second substantial question of law is also to be answered against the appellant/assessee. 29. Coming to the two appeals filed by the son-assessee namely T.C.A.Nos. 167 and 168 of 2012, it is seen that the first substantial question of law is just the same. Therefore, for the reasons that we have indicated in the case of the father, the first substantial question of law in T.C.A.Nos. 167 and 168 of 2012 is also to be answered against the appellant/assessee. 30. The second substantial question of law arising in T.C.A.Nos. 167 and 168 of 2012, is on a weaker wicket them even the first substantial question of law. At least in so far as the first substantial question of law is concerned, the appellant could rely upon the order of the Settlement Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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