TMI Blog2011 (11) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... . Srinivas Vyas. ITA Nos. 1311 to 1316/Mds/2009 are appeals filed by the Revenue against the order in ITA Nos. 08 to 13/09-10 dated 29-05-2009 for the assessment years 1998-99 to 2003-04 in the case of Shri Durga Das Vyas. As the issues in all the eight appeals are inter-connected and related, all the eight appeals are disposed of by this common order. 2. Shri Shaji P. Jacob, learned Sr. DR represented on behalf of the Revenue and Shri K. S. Ragunathan, CA represented on behalf of the assessees. 3. It was submitted by the learned DR that the assessees are individuals who are doing commission agency business. It was the submission that the assessees were receiving commission from one M/s. Siemens Ltd. apart from others. It was the subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Settlement Commission included the commission paid to both the assessees herein. The discussion in regard to the commission paid to the two assessees is found in page 5 of the order of the Hon'ble Settlement Commission vide para 2.3.1. As a consequence of the offer made before the Hon'ble Settlement Commission, the Hon'ble Settlement Commission had vide order dated 30-12-2005 directed further investigation to investigate the payments of commission shown to have been paid were bogus or were simply not sustainable as also other issues. Before the Settlement Commission, the Commissioner of Income Tax had clarified in his report dated 14-06-2007 that M/s. Siemens Ltd. was following a particular modus operandi whereby in some cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by M/s. Siemens Ltd. It was the submission that after the order of the Hon'ble Settlement Commission, the assessee moved a rectification application under section 154 of the Income Tax Act, 1961 before the Assessing Officer in the case of Shri Durga Das Vyas on 26-11-2008 submitting that the commission paid to the assessee had been offered as income by M/s. Siemens Ltd. before the Hon'ble Settlement Commission and consequently the commission income received was liable to be deleted. In the case of Shri D. Srinivas Vyas it was the submission that in the course of assessment itself the assessee had raised the claim. It was the submission that in the case of Shri Durga Das Vyas the Assessing Officer had rejected the rectification app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r by M/s. Siemens Ltd. for having received back any part of the commission from the assessee. It was the submission that even assuming that this was so that the assessee did pay back any amount to M/s. Siemens Ltd., the same would have to be verified and it cannot be said that the issue was not a debatable one or that it was a mistake apparent from the record which could be rectified by invoking the provisions of section 154 of the Act. 5. In regard to the appeals in the case of Shri D. Srinivas Vyas, It was the submission that on merits the assessee did not fall within the first category where the monies had been reverted back to M/s. Siemens Ltd. and no evidence to this effect had been produced before the Assessing Officer. It was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Durga Das Vyas in view of the circular cited by the learned CIT(A) the protective assessments were liable to be quashed by invoking the provisions of sec. 154 as M/s. Siemens had already disclosed the commission payments as its income before the Settlement Commission. He vehemently supported the order of the learned CIT(A). 7. We have considered the rival submissions. In the course of hearing it was put to the learned authorised representative as to how the assessees could in appellate proceedings get their income assessed at a figure lower than the returned income? To this the learned authorised representative had no reply. Though we do sympathize with the case of the assessees, the Tribunal being an appellate authority cannot shu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Coming to the issue of the debatable or mistake apparent from the record issue, it is noticed that the income offered by M/s. Siemens Ltd. before the Hon'ble Settlement Commission is on account of the unsubstantiable nature of the commission payments by M/s. Siemens Ltd. and not on account of the receiving back of the amounts paid to the assessees. It is for the assessees to prove that the monies received by them have been returned to M/s. Siemens Ltd. in some manner or the other, directly or indirectly, and this moves the issue out of the realm of a mistake apparent from the record into a highly debatable issue. In the circumstances we are of the view that the finding of the learned CIT(A) on both the issues of rectification u/s. 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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