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TMI Blog2013 (10) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... essee has otherwise not disputed the fact 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 - no error or mistake in the order - Decided against the assessee. Regarding non consideration of decision in case of Jai Drinks (2011 (1) TMI 1035 - Delhi High Court) as well as Pearl Bottling (P) Ltd. (2011 (2) TMI 42 - ITAT, VISAKHAPATNAM). - A finding given on merit cannot be reviewed in the proceedings u/s 254(2). The evidence considered while deciding the issue cannot be re- evaluated or re-appreciated in the proceedings u/s 254(2). - Decided against the assessee. - I. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered in the invoice is contrary to the decision of Hon'ble Supreme Court in case of M/s IFB Industries Vs State of Kerala. iv) Not considering the invoices raised by the distributors to the retailer showing the discount was passed on the retailers. v) The observation of the Tribunal that no scheme under which the discount has been given was produced is contrary to the record because a copy of marketing guidelines/sales marketing promotions strategy was placed in the paper book. vi) The decision in the case of Jai Drinks 336 ITR 383 (Del.) and Visakapatnam Benches of this Tribunal in case of Pearl Botting (P) Ltd. 46 SOT 133 have not been considered. 4. As regards an error in para 9.7 of the impugned order is concerned t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice issued by the distributors to the retailers wherein the discount has been passed on to the retailers/consumers therefore, the observation of the Tribunal that it is an undisputed fact that the so-called discount by way of credit note has not been passed on to the retailer is contrary to record. The relevant observation of the Tribunal in para 10.1 is as under: 10.1 .............................................................. 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. 6. We have carefully gone through the relevant record. We note that during the course of hearing of the appeal no such reference was made by the assessee in respect of the invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed fact was used in absence of contrary claim. However, since the issue has been set aside to the AO by the Tribunal therefore, in the interest of justice we modify that the sentence of para 10.1 of the impugned order as reproduce above and the same may be read as under: 10.1 .......................................... It is apparent that the amount of so called discount by way of credit note has not been passed on to the retailer. 7. As regards the mistake in para 12 of the impugned order in respect of the observation of the Tribunal that the so called discount given to the distributor through credit note was post sale transaction and not at the time of sale. The Ld. Counsel for the assessee has submitted that this observati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied upon by the assessee. However, the alleged marketing guidelines does not indicate that the same was approved by the Board of Directors as neither any resolution is placed on record nor any reference of such resolution has been given in the marketing guidelines. Even otherwise the marketing guidelines relied upon by the assessee has not been examined by the authorities below therefore, in the interest of justice we modify our finding in para 13.1 and direct the AO to examine and verify the same. 9. The last contention of the Ld. Counsel for the assessee is regarding non consideration of decision in case of Jai Drinks (supra) as well as Pearl Botting (P) Ltd. (supra). When the finding has been given on the basis of the facts of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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