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TMI Blog2012 (12) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... t proceeds never reached the assessee, no such income had therefore accrued to the assessee and this was because of an obligation or compulsion to deduct the commission from the export invoices which clearly showed this to be a case of diversion of income by overriding title - amounts deducted from the export invoices were thus clearly allowable as deduction – disallowance deleted – In favor of assessee - TAX APPEAL No. 2261 of 2010 - - - Dated:- 17-1-2012 - MR. AKIL KURESHI AND MS SONIA GOKANI JJ. Appearance: MRS MAUNA M BHATT for Appellant(s): 1, ORAL ORDER (Per : HONOURABLE MS JUSTICE SONIA GOKANI) 1. The appellant-Revenue, being aggrieved by the order of Income Tax Appellate Tribunal, Ahmedabad dated 30.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial concerning the identity of agent and genuineness of the transactions as well as services rendered as also with regard to the amount received by it. Therefore, the disallowance made was deleted by Tribunal. While dealing with the identical issue in case of M/s. Rachana Exports (Supra) by following the decision in case of Atma Prakash Batra (Supra) in the following manner the issue is adjudicated by this Court: 4. Order which is sought to be relied on by the Tribunal was challenged before this Court by way of Tax Appeal No.838/2009 in case of Commissioner of Income Tax-II v. Atma Prakash Batra and this Court confirmed the view taken by the Tribunal by holding thus : 13. In relation to proposed question No.2, which relates to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actual payment and therefore, disallowed the claim of commission. 17. As can be seen from the order of the Commissioner (Appeals), before the Commissioner (Appeals), the assessee had filed confirmations from agents acknowledging receipt of commission which was paid for securing export order. It was the case of the assessee that considering the nature of service, no documentary evidence could be maintained. The payment of commission was deducted from the export invoice itself and made directly to the agents by the buyer and there was no need to have any written agreement for the same. That the assessee had duly complied with the rules framed by the RBI and the payment of commission was recognized by the RBI. That there was no significan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seller, even though there was no formal agreement. The agents had unequivocally confirmed and reconfirmed the nature of the transactions and that the absence of any formal agreement could not be held to be a ground to dismiss the claim of the assessee. There were clear contra confirmations from the agents. Thus, once the genuineness of the commission as well as its justification of having been wholly and exclusively incurred for the purpose of assessee's business was established, the same becomes admissible as deduction under section 37(1) of the Act. The Tribunal was of the view that it could not be held that the gross invoice amounts were what had accrued to the assessee, and that these were the amounts on which the assessee should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conclusion arrived at by the Tribunal is based upon findings of fact recorded by it after appreciating the evidence on record, which have not been dislodged by the revenue by pointing out any evidence to the contrary. The reasons assigned by the Tribunal for arriving at its conclusion are reasonable and convincing. On behalf of the revenue nothing has been pointed out to persuade the Court to take a different view. In the circumstances, 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. 5. In the instant case, as could be seen from the order of CIT(Appeals) there are convincing and cogent reasons given by CIT(Appeals) for arrivi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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