TMI Blog2015 (9) TMI 1659X X X X Extracts X X X X X X X X Extracts X X X X ..... the file of Assessing Officer for fresh adjudication in accordance with the order of the Tribunal [ 2015 (2) TMI 1317 - ITAT PUNE] . Thus, ground Nos. 1 to 7 in the appeal of assessee are allowed for statistical purposes. Disallowance of the commission expenses claimed by the assessee - HELD THAT:- Assessee has stated at the bar that the documents as sought by the Assessing Officer are now available with the assessee and the same can be furnished, if an opportunity is granted. We deem it appropriate to remit this issue back to the file of the Assessing Officer with a direction to assessee to file the necessary documents in support of the claim. The Assessing Officer after considering the documents furnished by the assessee shall decide the issue afresh, in accordance with law. This ground of appeal of assessee is also allowed for statistical purposes. - ITA No. 884/PN/2014 - - - Dated:- 30-9-2015 - SHRI VIKAS AWASTHY, JM AND SHRI PRADIP KUMAR KEDIA, AM For The Assessee : Shri Nilesh Khandelwal For The Revenue : Shri Dheeraj Kumar Jain ORDER PER VIKAS AWASTHY, JM : The appeal has been filed by the assessee against the order of CIT(A)-V, Pune dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed vide common order dated 27-02-2015. The Tribunal after appreciating the facts of the case has remitted the matter back to the file of Assessing Officer with a specific direction. The Ld. Authorised Representative placed on record a copy of the order of Tribunal dated 27-02-2015 in the aforesaid appeals. In so far as the second issue raised in the appeal regarding disallowance of commission expenses, the Ld. Authorised Representative submitted that if an opportunity is given, the assessee can place on record all the documents which are relevant to substantiate the payment of commission. 6. Mr.Dheeraj Jain representing the Department fairly agreed that the issue relating to disallowance of deduction u/s.80IB(4) was earlier agitated by the Department, as well as, the Assessee before the Tribunal and the Tribunal has remitted the matter back to the file of the Assessing Officer for fresh adjudication. So far as the commission expenses is concerned, the Ld. Departmental Representative supported the findings of the authorities below. 7. We have heard the submissions made by the representatives of the rival sides and have perused the orders of the authorities below. We have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Kavita Industries Pvt. Ltd.. Further, when the bills purported to have been issued by him to M/s Kavita Industries Pvt. Ltd. and assessee were put to him, it was stated that those bills i.e. Bill Nos.130 and 132 respectively were not issued by him. Though, he confirmed the vehicle number mentioned in the bills but it was claimed by him that the said vehicle was not sent by him from Chakan, Pune (i.e. the premises of M/s Kavita Industries Pvt. Ltd.) to Silvassa unit of the assessee. After noticing the denial of the transporter, he was also asked to produce a Log Book, if any, maintained by him showing movement of the vehicle in question. In response, it was stated that though the vehicle was owned by him but no Log Book was maintained for its movement. On being asked to produce the bill book for the relevant period, the said transporter replied that it was not available and it was kept in the godown in his residential house which he had since shifted out. The transporter also confirmed that the Bill Nos. 130 and 132 purported to have been issued by him were not even signed by him and nor were issued by him. When all these were put to the assessee, a detailed written communicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from his earlier stand of the bills having been fabricated. A copy of the said statement recorded on 28.12.2010 is placed at pages 20 to 24 of the Paper Book. The relevant portion of the same is already reproduced in the earlier part of this order. Nevertheless, when the Assessing Officer put across to the transporter Bill Nos. 246 and 249 issued by him as also the contents of assessee s submissions it was admitted that the LR and bills were indeed issued and signed by him. The transporter explained that the bills related to the local transportation and not for transportation outside Maharashtra and that in the bills he had mentioned the address of Silvassa merely for the purposes of billing. According to the transporter, though the LRs and bills were issued by him but they were for local transportation only and there was no transportation of goods from Chakan, Pune to Silvassa or from Silvassa to Chakan, Pune. 21. Ostensibly, there are apparent contradictions in the statements furnished by the transporter at the different points of time. In such a situation, one of the course available was for a cross-examination of the transporter by the assessee. On this aspect, we find t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as the evidence of transportation is concerned it does not clinchingly establish the case either way. Under these circumstances, in our view, it was not only imperative but also prudent that the cross-examination of the transporter was undertaken so as to enable the Assessing Officer to come to appropriate findings. In our considered opinion, it would meet the ends of justice if the matter is restored back to the file of the Assessing Officer who shall certainly confronted the assessee with the material with him but also ensure that an appropriate and adequate opportunity of cross-examination is allowed to the assessee. It is also relevant to say that in response to the denials by the transporter, initially the assessee had made a detailed submission attempting to demolish the version of the transporter. The initial burden on the assessee stood discharged in view of its submissions dated 21.12.2010 and therefore it was in fitness of things that crossexamination was carried out so as to enable the Assessing Officer to come to an appropriate and credible findings thereof. Thus, we set-aside the order of the CIT(A) and restore the matter back to the file of the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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