TMI Blog2018 (8) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of rendering services were missing and had not been placed on record. There was no evidence to show that the sub-agent had the experts, who had helped in the bidding process or had interacted with the Indian company. No letter or communication from the Korean company or the Indian company to the subagent was filed. A decision of question of fact depends upon appreciation of evidence and material placed before the authorities, i.e. the Tribunal. The Tribunal, as a final fact finding authority, has to determine and decide question of fact in dispute by examination of evidence and material produced. Inference and conclusion based upon appreciation of fact does not give rise to a question of law. In this context that the appellant claims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the decision of the Tribunal is perverse being contrary to the facts as M/s AGR Steel Strips Private Limited had accepted and accounted for the payment, which was made through banking channel and in an earlier assessment year, the appellant had paid ₹ 1.25 Crores as commission to M/s AGR Steels Private Limited, albeit no addition was made. Three other assessees had also paid commission to M/s AGR Steels Private Limited during the period relevant to the Assessment Years 2009-10 and 2011-12. 3. The appellant in the return for the Assessment Year 2010-11 had declared taxable income of ₹ 13,79,62,090/-, which income had included commission @ 1% received as an agent from M/s Hyosung Corporation Power and Industrial Systems PG Ko ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied on the finding of the Ld. CIT-(A) on the issue in dispute and also emphasized on the rule of consistency. We find that the Ld. CIT-(A) has concluded that the assessee has discharged its onus to establish the fact of rendering services by the sub-agent. In our opinion, this conclusion of the Ld. CIT-(A) is not based on the proper appreciation of the facts on record, due to following reasons: (i) The Id. CIT(A) has recorded that the subagent had directly filed reply to the Assessing Officer in response to notice under section 133 (6) of the Act, with required documents and confirmed having rendered services to the assessee. This observation is factually incorrect. The Assessing Officer has clearly mentioned in assessment order that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y rendered the services. (iii) The Ld. CIT-(A) has further observed that no cash has been withdrawn from the bank account of the AGR i.e. sub-agent. In our opinion, for discharging the onus that the services were rendered by the sub-agent, it was not relevant to show that cash was not withdrawn from the bank account of the subagent. Assessee was required to produce direct evidences of services rendered. (iv) Further, the learned CIT-(A) has observed that in the preceding year also the fact of services rendered has been accepted by the Assessing Officer. In our opinion, the fact of services rendered needs to be examined in each year and by accepting the services rendered in one year, it cannot be established that the assessee might ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gent company interacted with M/s PCGIL, was given either before the lower authorities or before us. The assessee has not furnished any confirmation either from the principal company M/s Hyosung Corporation, Korea or from M/s PCGIL that the sub-agent provided the services of coordination and follow-up in the process of bidding of tenders for contracts. The assessee has merely submitted that coordination and follow-up services only required use of telephone or email or personal interaction, but it has not provided any documentary evidence before us, which could establish that the sub-agent followed with M/s `PCGIL'. The assessee has submitted that due to services of the subagent, the supplier got contract for supply of transformer, but th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the sub-agent for rendering services, persons whom the sub-agent had contacted in the process of rendering services and letters, report or document submitted by the sub-agent in the process of rendering services were missing and had not been placed on record. There was no evidence to show that the sub-agent had the experts, who had helped in the bidding process or had interacted with the Indian company. No letter or communication from the Korean company or the Indian company to the subagent was filed. 7. Contention of the appellant that payment of ₹ 1.25 crores was made by the appellant-assessee to the respondent in Assessment Year 2009-10, which amount was not disallowed, would not, in our opinion, reflect or show that the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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