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2015 (8) TMI 842 - AT - Income TaxTDS liability - CIT on his jurisdiction u/s 263 directed the AO to disallow payment of foreign commission u/s 40(a)(i) - Held that - It is incumbent on the part of the Assessing Officer to disclose the reasons in the assessment order for allowing or disallowing a claim of the assessee. This Tribunal is of the considered opinion that the CIT has rightly exercised his jurisdiction u/s 263 of the Act. However, the CIT has directed the Assessing Officer to disallow a sum of ₹ 37,18,965/- said to be paid to the non-residents for non-compliance of provisions of section 40(a)(i) of the Act. This Tribunal is of the considered opinion that an opportunity shall be given to the assessee to explain the nature of payment before the Assessing Officer. Accordingly, the order of the CIT is modified and the Assessing Officer is directed to examine the payment of commission to the non-residents independently and decide the same in accordance with law. It is made clear that the Assessing Officer shall examine the issue independently without being influenced by the observation made by the CIT in the impugned order or by this Tribunal in this order and decide the same in accordance with law after giving a reasonable opportunity to the assessee. - Decided in favour of assessee in part.
Issues:
1. Disallowance of foreign commission payment under section 40(a)(i) of the Act. 2. Jurisdiction of the CIT under section 263 of the Act. 3. Requirement of recording reasons in the assessment order. Issue 1: Disallowance of Foreign Commission Payment under Section 40(a)(i) of the Act: The Assessing Officer called for details regarding the difference in closing stock, salary/wages, loading and unloading charges, overseas commission, and TDS deducted. The Assessing Officer allowed the payment of commission to non-residents after considering the details provided by the assessee. However, the CIT, under section 263 of the Act, found that TDS should have been deducted on the foreign commission payment. The CIT directed the Assessing Officer to disallow the payment of foreign commission under section 40(a)(i) of the Act. The assessee argued that the CIT cannot substitute his view when the Assessing Officer has already allowed the claim. The Tribunal emphasized that the Assessing Officer must reflect the application of mind in the assessment order, which was lacking in this case. The Tribunal directed the Assessing Officer to independently examine the nature of the payment and decide accordingly, giving the assessee an opportunity to explain. Issue 2: Jurisdiction of the CIT under Section 263 of the Act: The CIT, under section 263, directed the Assessing Officer to disallow the foreign commission payment for non-compliance with section 40(a)(i) of the Act. The Tribunal agreed that the CIT rightly exercised his jurisdiction but emphasized the need for the Assessing Officer to disclose reasons for allowing or disallowing a claim. The Tribunal modified the CIT's order, instructing the Assessing Officer to independently review the commission payment to non-residents and decide in accordance with the law. The Tribunal stressed that the Assessing Officer should make the decision without being influenced by previous observations. Issue 3: Requirement of Recording Reasons in the Assessment Order: The Tribunal highlighted the importance of recording reasons in the assessment order for allowing or disallowing claims. Citing legal precedents, the Tribunal emphasized that reasons ensure fairness, clarity, and minimize arbitrariness in decision-making. The Tribunal reiterated that the Assessing Officer must record reasons to facilitate higher authorities' review. Failure to provide reasons may hinder judicial scrutiny and correction. The Tribunal concluded that the Assessing Officer's application of mind should be evident in the assessment order to enable effective appellate or supervisory review. This judgment underscores the significance of proper documentation, independent assessment, and adherence to legal provisions in tax matters, ensuring transparency, and fair decision-making in the tax assessment process.
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