9911796707
TMI Blog2013 (10) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... f this Tribunal on the ground No. 2.2 on the issue of disallowance made u/s 40(a)(ia) of the Income Tax Act in respect of discount given to the distributors which was treated by the AO as commission. 3. We have heard the Ld. Counsel for the assessee as well as Ld. DR. The Ld. Counsel has pointed out various alleged mistakes in the order which are summarised as under: i) In para 9.7 of the impugned order wherein the word agent/distributors used by this Tribunal is not correct. ii) In para 10.1 the Tribunal has stated that it is an undisputed fact that the amount of so-called discount by way of credit note has not been passed on to the retailer. The assessee's grievance is that the assessee has not accepted this fact but right from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of the fact that the same is given to the distributors. Therefore, when this term agents/distributors appearing in para 9.7 has no influence or bearing on the finding of the Tribunal on the issue then we do not find any substance on this point. It is pertinent to note that in para 9.7 the Tribunal has discussed the AO's finding regarding the prevailing rate of commission in the industry and that context the observation of the Tribunal is in favour of the assessee by disapproving the action of the AO whereby the entire sale of the assessee was taken into consideration instead of the sale through agents/distributors only. Accordingly, in our view there is no apparent mistake on record in para 9.7 of the impugned order which can be rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Even otherwise the issue was remitted by this Tribunal to the record of the AO for further verification therefore, if the assessee is able to prove that the alleged discount given to the distributors has been ultimately passed on to the retailer/ultimate consumer the same has to be considered by the Assessing Officer. As regards the term undisputed fact appearing in para 10.1 it appears that the same has been used by the Tribunal because no where the assessee has claimed that the alleged discount has been passed onto the retailer or ultimate consumer. The onus is on the assessee is to prove that the incentive in question is in the nature of discount and one of the crucial aspect to prove its claim the assessee had to come up with fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the alleged discount was not reduced/adjusted from the total turnover as per the original invoices for the purpose of sales tax therefore, the decision of Hon'ble Supreme Court would not help the case of the assessee. Accordingly, we do not find any error apparent on the face of the impugned order in par 12 which can be rectified u/s 254(2). 8. The next point raised in the Miscellaneous Application is regarding the existence of marketing guidelines/sales marketing/promotions strategy. The Ld. Counsel for the assessee has submitted that in para 13 of the impugned order the Tribunal has observed that the assessee has failed to produce any scheme under which such benefit has been given to the distributors whereas a copy of marketing ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
