Case Law Details
DCIT Vs Allied Offshore Services Pvt. Ltd (ITAT Mumbai)
It has categorically come on record that remand report though called by Ld. CIT(A) during appellate proceedings has not been referred to in the impugned orders. When additional evidence entertained by the CIT(A) has not been brought on record in accordance with Rule 46A subsequent findings on the same are vitiated because there is not even a whisper of remand report admittedly submitted in this case by the AO. Secondly the AO has not got the opportunity to examine the agreement on the basis of which services have been rendered and commission has been earned by the assessee company.
Moreover, additional evidence selectively entertained by Ld. CIT(A) has not been taken on record in accordance with the rule 46A of the Income Tax Rules.
Moreover, there is not an iota of evidence on the file if any working as to rendering services and as to how much commission was earned by the assessee during a particular year under consideration nor such any working has been provided during the assessment proceedings or during the appellate proceedings. When we examine para 4.4.9 Ld. CIT(A) has categorically recorded that terms and conditions contained in the agreements are tampered with by way of subsequent correspondence by the parties to the contract which is hit by section 62 of the Indian Contract Act, 1872, but ultimately allowed the relief to the assessee.
In the given circumstances we are of the considered view that issue in question has not been addressed in entirety before the AO because of non availability of the agreement and other relevant information called for from the assessee company as well as before the Ld. CIT(A) for want of overlooking the remand report submitted by the AO and for want of furnishing complete working of the service rendered and commission earned by the assessee company during particular years under assessment. AO as well as CIT(A) have also not addressed the issue if the commission taken in advance by the assessee should be assessed in 2012-13 or in the subsequent years nor the AO as well as Ld. CIT(A) have referred to the agreement entered into between the parties.
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