TMI Blog1994 (6) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... the case discloses that after the Appellate Tribunal, Madras Bench, 'A', disposed of the proceeding, the Revenue sought a reference to this court, and the Tribunal declined to make a reference, the Revenue approached this court in T.C.P. Nos. 140 and 141 of 1980 under section 256(2) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), and this court directed, in the said proceeding, the Tribunal to refer the question to it for determination whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law and had valid material to hold that the claim for the allowance of secret commission should be allowed even though the assessee could produce neither the receipt for the payment of secret c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there might be some inflation in the brokerage expenses. The Revenue appealed before the Tribunal, The Tribunal confirmed the findings of the Appellate Assistant Commissioner. It is seen from the orders of the Income-tax Officer, the Appellate Assistant Commissioner and the Tribunal and the statement of the case submitted to this court that the Income-tax Officer examined the vouchers given in support of the payment of brokerage in connection with the transaction with Ashok Leyland Limited and to others. He, however, disallowed the commission on the ground that there were no addresses available in the vouchers. The assessee, however, submitted a letter stating that all the payments made by them were genuine, that the payments were ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of sales effected by it. Viewed in this light, it has said that the order of the Appellate Assistant Commissioner allowing brokerage payment for sales effected to Ashok Leyland Limited and other allied purchasers has to be upheld. This observation in the Appellate Tribunal's order has been vehemently attacked by learned counsel for the Revenue, who has, on specific queries by the court, urged that the Tribunal has only gone by a so-called presumption that the assessee must also have paid such commission, which does not constitute a valid material and besides the above there being no valid material, the Tribunal ought to have allowed the Revenue's appeal and reversed the findings of the Appellate Assistant Commissioner. Learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue took the matter up in appeal to the Tribunal. The Tribunal reversed the order of the Appellate Assistant Commissioner and restored that of the Income-tax Officer. It came to the conclusion that the so-called selling agency agreement between the assessee-firm and the selling agency firm was only a make-believe arrangement. It was merely a device to minimise the tax liability of the assessee-firm and it was not a genuine business arrangement. It arrived at that conclusion on the basis of the set of facts as disclosed in the said judgment. The Tribunal held, on facts, that it was unable to accept the oral evidence at its face value in view of the surrounding circumstances of the case. The Supreme Court has, on the above facts, said about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the High Court was justified in not calling for a statement of case under sub-section (2) of section 256. We are of the view that in the instant case also, had the full facts been placed before this court in T.C.P. Nos. 140 and 141 of 1980, this court would have declined to call for any statement of facts under sub-section (2) of section 256 of the Act. Since, however, a reference has been called for and it is before us, we record that the Supreme Court has laid down the limitations as to the question of law that may be called for by the courts in a proceeding of this kind. The observation of the Supreme Court that it is open to the Tribunal to analyse the facts and evidence and to give reasons of its own in support of any conclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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