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TMI Blog2021 (9) TMI 1537X X X X Extracts X X X X X X X X Extracts X X X X ..... /2018, 470/2018, 471/2018, 472/2018, 473/2018 are directed against the common order dated 28.02.2018 passed in M.P.No.194/Bang/2017 (ITA No.1358/Bang/2015), M.P.No.195/Bang/2017 (ITA No.1359/Bang/2015), M.P.No.196/Bang/2017 (ITA No.1360/Bang/2015), M.P.No.197/Bang/2017 (ITA No.1361/Bang/2015), M.P.No.198/Bang/2017 (ITA No.1362/Bang/2015), M.P.No.199/Bang/2017 (ITA No.1363/Bang/2015) by the Income Tax Appellate Tribunal, Bangalore ['Tribunal' for short] relating to the assessment years 2006-07, 2007-08, 2008-09, 2009-10, 2010-11, 2011-12 respectively. 4. These appeals were admitted to consider the following substantial questions of law:- ITA Nos.468/2018, 469/2018, 470/2018, 471/2018, 472/2018, 473/2018 "1. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in giving a finding that it has not rendered any finding as to the nature of the payments found in the loose sheets? 2. Whether on the facts and circumstances of the case, the order of the Tribunal can be said as perverse in holding that illegal payments were not made to the port officials ignoring the evidences seized during the course of search operations and the statements recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals before the CIT (A). The said authority partly allowed the appeals vide order dated 10.07.2015, against which the Revenue preferred appeals before the Tribunal relating to the assessment years 2002-03 to 2003-04, 2006-2007 to 2011-2012 and the assessee preferred appeal relating to the assessment year 2004- 05. The Tribunal has partially granted the relief to the assessee with some directions. The assessee preferred Miscellaneous Petition Nos.191 to 199/Bang/2017 seeking for modification of the order dated 02.05.2017. The Tribunal passed the order dated 28.02.2018 observing that no finding was given or any observation was made with regard to the nature of payments found in loose sheets. Challenging the order of the Tribunal dated 02.05.2017 as well as the order passed in Miscellaneous Petitions dated 28.02.2018, the Revenue has preferred appeals raising common substantial questions of law and grounds for all the assessment years in question. 6. Learned counsel for the Revenue submitted that the Tribunal erred in deleting the disallowance allowed by the Assessing Officer on account of speed money claimed as labour charges in the books of accounts claimed as sub-contract paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order dated 02.05.2017, relating to the findings made that, "from the mere perusal of the loose sheets it is clear that 10% of the cash payments was made to the officials of the port trust", the Tribunal has clarified that no finding was rendered as to the nature of the payments found in the loose sheets. Learned counsel placing reliance on the judgment of this Court in the case of CIT, Mangalore vs. M/s. Konkan Marine Agencies, Mangalore (ITA.No.603/2004 DD 28.07.2008), CIT, Mangalore vs. Sri Clifford D'Souza (ITA.No.22/2011 DD 24.02.2015), submitted that the speed money payments made by the assessee to the sub-contractors, to the labourers, is considered to be a normal practice in the line of the business of the assessee to pay certain extra amounts to port labourers as speed money for promptly and speedily carrying on the labour work of handling cargo beyond working hours. Thus, the payment made through sub-contractors to labourers is not prohibited by law. 8. We have carefully considered the submissions made by the learned counsel for the parties and perused the material on record. 9. The search and seizure operation in the case of assessee was carried out on 4.8.2011 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... speed money expenditure is still pending before the jurisdictional Tribunal. Tribunal while considering the case of the Revenue relating to the assessment years in question, challenging the allowance of 90% of speed money observed that "mere perusal of the loose sheets it is clear that about 10% of the cash payments was made to the officials of the port trust". Consequently, held that disallowance to the extent of 10% is just and proper. This order amounts to allowing the appeals filed by the assessee which are still pending where the challenge is made to the extent of disallowance of 10%. On further miscellaneous petitions filed by the assessee, strangely the Tribunal has held that no finding has been rendered as to the nature of payments found in loose sheets which is ex-facie contrary to the finding recorded in the order dated 02.05.2017. This would indicate that the Tribunal has not applied its mind while arriving at the conclusion. The Tribunal being the last fact finding authority ought to have discussed the factual aspects, more importantly when the Assessing Officer has made efforts to discover the tax evasion, placing reliance on the incriminating materials seized and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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