TMI Blog2019 (9) TMI 1226X X X X Extracts X X X X X X X X Extracts X X X X ..... remium from the assessee. Hence, this transaction of payment of one time premium would effectively go to add to the purchase cost of the gold and cannot be categorised as commission. Accordingly, there is no requirement of deduction of tax at source on the part of the assessee in terms of Section 194H of the Act and consequently, no disallowance u/s.40(a)(ia) of the Act would come into operation thereon. CIT(A) had completely shifted the stand taken by the AO by considering that the said payment of one time premium is capital expenditure as against the claim of revenue expenditure made by the assessee. It is well settled that the issue of capital vs revenue expenditure is always a debatable issue. Hence, we hold that the debatable issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein it has been contended that he had undergone Kidney Transplantation and his health was weak for a prolonged period from 2008 onwards. Subsequently, he also suffered stroke in the year 2012 which made him completely bed ridden. Because of his prolonged illness, he could not follow-up with his Chartered Accountant as to whether the appeal against the order of the ld. CIT(A) had indeed been filed by the concerned Chartered Accountant before the Tribunal for the year under consideration i.e., A.Y.2006-07. The assessee had also furnished the concerned medical reports in support of his contentions in order to prove his bona fide. Subsequently, when the appeals for the A.Yrs. 2007-08 2008-09 had come up for hearing in July 2016, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted in 280 ITR 357 (Mad), among other decisions of the Tribunal, had condoned the delay of 2819 days in the interest of substantial justice. 2.1. Respectfully following the said decision which had discussed elaborately on the aspect of condonation of delay, by referring to various judicial precedents including the decisions of Hon ble High Court and Hon ble Supreme Court, we are inclined to condone the delay in filing of appeal before us of 2107 days and admit the appeal of the assessee for adjudication. 3. The only issue to be decided on merits is as to whether the ld. CIT(A) was justified in upholding the disallowance made u/s.40(a)(ia) of the Act in the sum of ₹ 20 lakhs in respect of one time prem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide letter dated 25/04/2005 on the subject of gold purchases from the bank wherein it had been specifically stated by the assessee that it had paid the non-refundable additional premium of ₹ 20 lakhs to Bank of Nova Scotia towards purchase of gold during the relevant purchase period. It was specifically mentioned in the said letter that the said additional premium paid by the assessee is non-refundable irrespective of the quantity of gold purchased by the assessee from the bank during the relevant period. In effect, this premium was paid by the assessee to the bank to enable continuous and uninterrupted supply of gold by the bank to the assessee for the purpose of his business , pursuant to mutual understanding with the bank. The asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter and does not require any investigation of fresh facts. Accordingly, we deem it fit to admit this additional ground and consider the same for re-adjudication. We find from the submissions made by the assessee before the lower authorities, which had been completely ignored by the ld. AO and by the ld. CIT(A) that assessee has made payment of one time non-refundable premium of ₹ 20 lakhs to bank of Nova Scotia for purchase of gold for the purpose of his business in order to ensure continuous and uninterrupted supply of gold by the bank to the assessee. We find from page 5 of the paper book that the bank had also confirmed the receipt of said sum of ₹ 20 lakhs towards one time non-refundable premium from the assessee. Hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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