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TMI Blog2020 (1) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... e AO has been allowed a reasonable opportunity to examine the evidence or document produced by the appellant, and also to produce any evidence or document in rebuttal of the additional evidence produced by the assessee? ii. Whether, on the facts and circumstances of the case and in Law, the Id. CIT(A) erred in ignoring crucial fact - whether Tax Deducted at Source (TDS) under provisions of Chapter XVII-B of the Income-tax Act, 1961 was deposited into Government Treasury on or before due date specified in Section 139(1) of the Income-tax Act, 1961 i.e. 30-11-2011 for AY 2011-12, so as not to attract provisions of Section 40(a)ia) of the Income-tax Act, 1961 ? iii. Whether, on the facts and circumstances of the case and in Law, the Id. CIT(A) erred in deleting the addition of Rs. 2,12,24,848/- by citing that the party i.e., Nomanbhoy & Sons Pte Ltd, Singapore, treated as an Associated Enterprise of assessee by A.O. is not an Associated Enterprise of assessee as per information in Form 3CEB without calling for Remand Report from the A.O. before deciding the issue in favour of the assessee?" iv. Whether, on the facts and circumstances of the case and in law, whilst it is true tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of statutory audit for the subsequent financial year ending 31st March, 2011, had erroneously not been booked as expenditure in the said financial year, but were instead booked in the financial year ending 31" March, 2012 on receipt, of the relevant bills from the respective parties. The said amounts have been classified in the subsequent financial year in the accounts as "prior period expense". Date Name Nature Amount (Rs.) 31.03.2031 Premier Marine Barge hire 2,800,000 28.03.20J I Machado & Sons Agency charges 72,798 28.03.2011 Machado & Sons Charges 618,770 25.03.2011 Laxmikant Parab Mineral Traders Transport Handling Charges 1,221,619 26.03.2011 Counto Metals Renting and using Jetty plots 7,818,360 12,531,547 'Note 2 . The Return of Income for the current fiscal year is being revised to claim the above expenses which relate to the year under consideration. No deduction has been claimed for the above expenses in the Return of Income for the subsequent assessment year A.Y. 2012-13. 5. AO noted that assessee has not furnished any details/supporting with regard to the said expenses/charges. That asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - It is felt that a markup of 20% on trading activity should be reasonable and should represent Arms Length price. Consequently, 20% mark up on the expenses, as detailed below, incurred by the assessee has been considered to arrive at the Arms Length price. Nature of Expenses Amount (Rs.) Purchases 93,660,724 Custom duty 24,853,400 Shipment insurance 54,885 Clearing and forwarding charge 303,312 Loading port charges 2,204,379 Total expenses 121,076,700 Add mark up @ 20% of total expenses 24,215,340 Arms Length Price (A) 145,292,040 Adjustment (price declared by the assessee Rs; 12,40,69,985 less A above) 21,224,848 Accordingly, adjustment of Rs. 21,224,848/- is proposed to be made to the amount of total income. Income from services in foreign currency 9. The Assessing Officer noted that as per profit and loss account and details furnished by the assessee and income of Rs. 1,20,46,986 has been credited by the assessee company in profit and loss account. The assessee has not filed any detail/information in this regard even though the same was called for. The assessing officer concluded that the transactions shall come in the purview of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee submission in statement of facts. He noted the assessee submissions that a lot of information was already provided to the Assessing Officer. Thereafter, he held as under :- "In any event, in order to do Justice to the matter, I requested the appellant, in the light of the powers vested in me, to submit copies of the relevant bills, TDS challans, etc. The appellant submitted all the relevant bills to me during the course of appeal proceedings. I have perused the relevant bills and found that there is no reason why the disallowance should be upheld. Firstly, the Assessing Officer states that details were not furnished, but the details were clearly available in the notes appended to the revised return, which the Assessing Officer himself culled out in the assessment order. If the Assessing Officer felt that he required to verify the bills, he should have called for the same, but has certainly not done so. I have, therefore, verified the said bills in the course of appeal proceedings. The details of bills and TDS deducted are as under:- Date Name Nature Amount (Rs.) Remarks TDS deducted Remarks 31.03.2011 Premier Marine Barge hire 28,00,000 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cing certificate in Form 3CEB. b) Transactions with related parties disclosed in Schedule 8 in the Notes to Accounts. c) The statement of the appellant that the said alleged Associated Enterprises, Nomanbhoy & Sons Pte. Ltd. is a completely unrelated party. d) In details of export sales submitted vide letter dated 21st October 2013 where there was a specific Section whether the party is a related party, the appellant clearly answered 'NO'. The only issue involved in this ground of appeal is M/s. Nomanbhoy & Sons Pte. Ltd. (Singapore) treated by the Assessing Officer as an Associated Enterprise of the appellant company whereas the AR of the appellant argues that as per Form 3CEB, it is not mentioned as Associated Enterprise. Accordingly he has filed a copy of Form 3CEB wherein at page 3 of Form 3CEB the appellant company has mentioned Abdoolally Ebrahim & Co.(HK) Ltd. Abdoolally House, 1st floor, 20, Stanley Street, Central, Hongkong as its Associated Enterprise whereas vide page 3, para 5.1 of the assessment order, the Assessing Officer has only mentioned that the assessee has undertaken export of Rs. 12,40,69,985/- in favour of Nomanbhyoy & Songs Pte. Ltd.(Singapor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come of Rs. 30,06,152/- computed as under: Export Segment Back office segment Expenses as per audited accounts for the year 54,15,049 1,09,37,528 Add: Expenses for Jan - March allocated to Back Office segment (27,47,097) 27,47,097 Adjusted expenses 26,67,952 1,36,84,625 Add: Markup(r) 10% - 13,68,463 Total Amount chargeable 26,67,952 1,50,53,088 Less: Back-office Revenue already declared in audited accounts (1,20,46,986) Suo-moto Transfer Pricing Addition by Appellant 30,06,102 17. Against the order, revenue is in appeal before us. 18. We have heard both the Counsel and perused the record. 19. The revenue's grievance is that learned CIT(A) has passed order without giving the Assessing Officer an opportunity to go through the additional documents and submissions made by the assessee before him. 20. Per Contra, learned counsel of the assessee has given Catena of case laws for the proposition that learned CIT (A) is fully empowered to call for details and pass order accordingly and in that case it cannot be said that there is violation of rule 46A( 3) 21. Upon careful consideration, we note that as regards the del ..... X X X X Extracts X X X X X X X X Extracts X X X X
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