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TMI Blog2015 (9) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... 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(A) 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 partly in favour of assessee. - I.T.A.No.530/Mds/2014 - - - Dated:- 21-8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer has applied his mind to the details filed by the assessee and taken one view, the CIT cannot substitute his own view and disallow the claim u/s 40(a)(i) of the Act. Referring to the order of this Tribunal in assessee s own case in I.T.A. No.2334/Mds/2014 dated 2.1.2015, the ld. Counsel submitted for assessment year 2011-12, this Tribunal, after following the judgment of the Hon'ble Madras High Court in CIT vs Faizan Shoes Pvt. Ltd [2014] 367 ITR 155, allowed the claim of the assessee. Therefore, the CIT ought not to have directed the Assessing Officer to disallow the claim of the assessee u/s 40(a)(i) of the Act. 4. We heard Dr. B. Nischal, ld. Departmental Representative also. 5. The CIT, while exercising his jurisdiction u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion. The only contention of the ld. Counsel is that the Assessing Officer called for the details and allowed the claim. This Tribunal is of the considered opinion that the Assessing Officer being a quasi-judicial authority, the application of mind shall be reflected in the impugned assessment order itself. In this case, even though the Assessing Officer called for the details, there is no discussion in the assessment order regarding the payment of commission and application of mind does not reflect from the assessment order. 6. The application of mind and the reasons for reaching a conclusion shall contain in the assessment order itself. Reasons for arriving at a conclusion are the live link to the mind of the decision maker and the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the appellate jurisdiction of this court under article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under article 227 of the Constitution and that the reasons, if recorded, would enable this court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimise chances of arbitrariness in decision making. In this regard a distinction has been drawn between ordinary courts of law and tribunals and authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge. In Testeels Ltd. v. N. M. Desai [1970] 37 FJR 7; AIR 1970 Guj 1, a Full Bench of the Gujarat High Court has made an extremely lucid enunciation of law on the subject and we can do no better than to extract some of the observations m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere so as to keep the administrative officer within the limits of the law. The result would be that the power of judicial review would be stultified and no redress being available to the citizen, there would be insidious encouragement to arbitrariness and caprice. If this requirement is insisted upon, then, they will be subject to judicial scrutiny and correction. If the order passed by the Tribunal is scrutinised in the light of the aforementioned proposition of law, we do not find any difficulty in setting aside the same on the ground of violation of the rules of natural justice. The flowery language used by the Tribunal to justify its acceptance of the respondent's plea that he did not know the law does not warrant our affirmatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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