2010 (12) TMI 1032 - HC - Income Tax

Unaccounted purchases - assessee had purchased the duty paid goods and availed of cenvat credit in terms of the Cenvat Credit Rules - Held that - According to the Tribunal, it was the duty of the seller to pay excise duty to the Excise Department which had been done by the seller and, consequently, since the goods had been sold under the proper invoices, the assessee had availed of the cenvat credit of the same. That 10 per cent. of the cenvat credit availed of by the assessee on the basis of the invoices of the sellers was also supported by way of duty paid certificate and subsequently, the goods were cleared by the assessee under ARE-1. sellers were registered with the Central Excise Department which was evident from the bills issued by them to the assessee. As per Tribunal though the parties at the moment are not traceable at the addresses and the Central Excise Department had issued alert circular , but it is also a fact that the very same Central Excise Department had issued cenvat credit on the basis of the bills issued by the sellers. Not only that, the Central Excise Department after due verification of the said parties, has issued refund at 10 per cent. to the assessee. As Tribunal has given sufficient, cogent and convincing reasons for the conclusion arrived at by it no reason to take a different view. In the circumstances, this ground of appeal is dismissed Disallowance of claim of export commission - Assessing Officer found that assessee did not furnish any agreement for paying commission nor did it file any proof of such remittance routed through the Reserve Bank of India (RBI). The foreign agents commission was allowable up to 12 per cent. under the Central Excise and Customs Rules, while giving the DEPB benefit, but the same was required to be proved beyond doubt as required by the RBI guidelines - Held that - Except one party, all other communications were on letter heads of the respective parties. It was further found that none of the payments had come beyond six months, but the same were within six months as could be verifiable from the bank realization certificates enclosed annexed in the paper book. The Tribunal recorded that each of the transactions between the assessee as the seller and the two buyers were mediated by agents, whose existence was established beyond doubt, by the confirmation letters. Secondly, there was rendering of services. The agents had clearly written that they had rendered services ; in procuring samples, deciding the orders and settling all matters between the buyers and seller including payments by the buyers to the seller. The existence of the agents and their functioning was for the benefit of the assessee as well. The Tribunal, accordingly, was of the view that the claim of the assessee towards commission payment deserves to be allowed, the conclusion arrived at by the Tribunal being based upon findings of fact does not give rise to any question of law. This ground of appeal is also dismissed Eligibility for deduction under section 80HHC - Held that - Tribunal has recorded that it was admitted by both the sides that the issue needs to be set aside to the file of the Assessing Officer to decide afresh in the light of insertion of clause (iiid) to section 28 of the Taxation Laws (Amendment) Act, 2005, with retrospective effect from April 1, 1998. In the circumstances, it is apparent that the Tribunal has decided the issue of eligibility for deduction under section 80HHC of the Act on a consensus and as such, it is not open for the Revenue to challenge the same nor does it give rise to a question of law. In the circumstances, this ground of appeal is also dismissed

Issues Involved:
1. Deletion of addition on account of unaccounted purchases.
2. Deletion of disallowance of claim of export commission.
3. Restoring the issue of eligibility for deduction under section 80HHC of the Income-tax Act.
4. Error in reversing the order of the Commissioner of Income-tax (Appeals) without cogent reasons.
5. Whether the Tribunal's order is contrary to evidence and material on record.

Detailed Analysis:

1. Deletion of Addition on Account of Unaccounted Purchases:
The Assessing Officer (AO) observed that the assessee made total purchases of Rs. 24,88,63,282 and issued notices under section 133(6) of the Act to verify them. Notices sent to 17 parties, accounting for Rs. 16,75,91,346, were returned as "party not available." The AO concluded these parties were fake/bogus/non-existent based on inquiries with the Central Excise and Customs Department. The AO held that the purchases were made without bills to save cenvat duty and inflated the purchases by 10% to account for the non-payment of cenvat duty, adding Rs. 1,67,59,134 to the income.

The Commissioner (Appeals) upheld this addition, noting that while the purchases were genuine, they were not made from the parties claimed by the assessee but from third parties without excise duty payment. The Tribunal, however, deleted this addition, finding that the assessee had purchased duty-paid goods and availed of cenvat credit as per the Cenvat Credit Rules. The Tribunal noted that the payments were made through account payee cheques and the Central Excise Department had issued refund certificates after due verification.

The High Court upheld the Tribunal's decision, noting that the Tribunal's findings were based on a thorough appreciation of evidence and were not perverse or based on irrelevant material.

2. Deletion of Disallowance of Claim of Export Commission:
The AO disallowed the export commission claim of Rs. 3,83,37,678, finding that the assessee did not furnish any agreements for paying such commission or proof of remittance through the RBI. The AO also noted that the names and addresses of foreign agents did not confirm the actual payment.

The Commissioner (Appeals) confirmed this disallowance, but the Tribunal allowed the assessee's claim. The Tribunal found that the receipt of commission was confirmed by the agents and the absence of formal agreements did not invalidate the claim. The Tribunal noted that the commission was deducted from the export invoices as per the terms agreed upon between the buyers and the seller, and the agents had confirmed the nature of the transactions.

The High Court upheld the Tribunal's decision, noting that the Tribunal's conclusions were based on findings of fact after appreciating the evidence on record and were reasonable and convincing.

3. Restoring the Issue of Eligibility for Deduction under Section 80HHC:
The Tribunal restored the issue of eligibility for deduction under section 80HHC to the AO to decide afresh in light of the insertion of clause (iiid) to section 28 of the Taxation Laws (Amendment) Act, 2005, with retrospective effect from April 1, 1998. The High Court noted that this decision was based on a consensus between both parties and did not give rise to a question of law.

4. Error in Reversing the Order of the Commissioner of Income-tax (Appeals) Without Cogent Reasons:
The High Court noted that this issue was ancillary to the first three issues and did not warrant separate consideration.

5. Whether the Tribunal's Order is Contrary to Evidence and Material on Record:
The High Court found that the Tribunal's order was based on a thorough appreciation of evidence and material on record and was not perverse. The Tribunal had given sufficient, cogent, and convincing reasons for its conclusions, and the High Court did not find any reason to take a different view.

Conclusion:
The High Court dismissed the appeal, finding no legal error in the Tribunal's order and noting that no substantial question of law arose from the Tribunal's decision.

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