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TMI Blog2011 (12) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the assessee and during the course of enquiries conducted, it was found that the assessee had been incurring expenditure by way of commission to drivers and the commission agents for bringing the customers to the business premises of the assessee. The AO accepted the claim of the assessee in his remand report. In the present case, when the AO during the course of remand proceedings made spot enquiries and was fully satisfied with the claim of the assessee, in our opinion, the ld. CIT(A) was fully justified in deleting the addition made by the AO. - ITA No.104/Bang/2011 - - - Dated:- 20-12-2011 - SHRI. N.K. SAINI AND SHRI GEORGE GEORGE K. Smt. Archana Chowdhry, CIT-II(DR) for the Appellant. Shri. V. Srinivasan, C.A. for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 40(a)(ia) of the I T Act, 1961, were not applicable in respect of the commission payments, whereas the details/evidence filed before the CIT(A) in course of appeal proceedings clearly indicate the applicability of the provisions of Section 40(a)(ia) which was not commented on by the Assessing Officer in the remand report submitted to the CIT(Appeals). 5. For these and such other grounds that may be urged at the time of hearing, it is humbly prayed that the order of the CIT (A) be reversed in so far as the above mentioned issue is concerned and that of the assessing officer be restored. 3. From the above grounds, it is gathered that the grievance of the department relates to the deletion of addition amounting to ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht tourists, foreign and outstation, in groups to the shops of the assessee. The AO was not satisfied with the explanation of the assessee and considered that 2% of commission of the sales was enough in such situation, he therefore disallowed a sum of ₹ 1,39,50,088. 5. The assessee preferred an appeal to the ld. CIT(Appeals) and filed written submissions, which had been reproduced by the ld. CIT(A) in para 3 of the impugned order and reads as under: Sri V. Srinivasan, C.A, A.R. appeared and argued the case. He was heard. He also filed a written submission. Along with the written submission he produced several additional evidences viz., 1. Certificate from M/s. Sree Shakthi Travels stating that the drivers get commission o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for allowing the claim. The submissions made by the assessee as mentioned in para 4 of the impugned order read as under: 2.1. The above additional evidences produced by the appellant could not be filed during the assessment proceedings due to shortage of time and also due to the fact that the appellant bonafidely believed that the commission paid, which was supported by proper vouchers would be sufficient and no disallowance would be made by the learned AD in view of the above, it is prayed the additional evidence may kindly be accepted under Rule 46A of the I. T. Rules to bring out the trade practice prevalent in this line of trade. 3. In light of the trade practice explained above, it is submitted that the appellant had claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to the drivers. It is submitted that the identity of the drivers is established by the copy of the licenses enclosed along with the affidavits and in light of the aforesaid material produced by the appellant, it is requested that the disallowances made by the AO may please be deleted. 4. The last ground canvassed by the appellant vide Ground No.3 relates to the levy of interest u/s. 234B and 234C of the Act. The interest levy may be disposed off in accordance with law. 7. The ld. CIT(A) sent the additional evidence produced by the assessee for a report to the AO who in his remand report stated as under: 1. Assessing Officer in this case for the A Y 2007-08 made the addition to the total income to the extent of ₹ 1,39, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts recorded from one of the employees of the assessee namely Shri.Ajay Sachdev and Shri.Nagaraj Sandesh have been placed on the file. Also the documents furnished by the assessee during the course of inquiries viz Sighter vouchers, relevant sale, taxi print etc. are placed on the file. 4. In view of the above findings, the claim of the assessee that he has been making payments to the drivers and commission agents to the extent up to 30% for bringing customers to his business premises may be accepted. 8. The ld. CIT(A) after considering the above remand report of the AO on the additional evidences, deleted the impugned addition. Now the department is in appeal. 9. The ld. DR strongly supported the order of the AO and reiterated t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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