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TMI Blog2020 (2) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... his appeal. 2. Brief facts of the case are that the assessee is engaged in the processing, trading and export of food products and processing of mustard oil cakes and trading in commodities. For the assessment year 2012-13, it has filed its return of income on 29/9/2012 declaring total income of Rs. 1,15,22,200/-. During the scrutiny learned Assessing Officer noticed that the assessee did not deduct any TDS on the commission paid to the foreign agents to the tune of Rs. 56,05,298/-. Assessee explained that the foreign agents to whom the commission was paid are not located in India and the services were rendered outside India. Learned Assessing Officer, however, did not agree with the contention of the assessee and opined that the services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the arbitrators and compensate the barrier for breach of contract and has to make the payments as it is also Arcade preceded that the person who breaches a contract has to make good the loss suffered by the buyer by paying the rate difference of agreed price and market price, and such loss cannot be said to be loss incurred on account of "agreement of contracts". 5. Learned Assessing Officer made a distinction between the dispute settled and contract settled, and observing that there is no evidence/proof that there was a dispute between the parties, that either of the parties had approached a court of law/arbitrators and had settled a dispute by way of paying the damages/in accordance with such award and therefore, it has to be inferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in respect of the rate settlement (contracts), as rightly observed by the learned Assessing Officer no evidence, whatsoever, is provided to show that the contracting parties had ever visited a dispute or that the dispute, if any, was referred to any court of law or to the arbitrators and all the transactions of settlement entered into by the assessee were mutually settled without actual delivery of goods which fall under the ambit of speculative transaction under section 43(5) of the Act. In the circumstances, Ld. DR submits that, in the absence of any evidence to the contrary, learned Assessing Officer is justified in treating the loss as a speculation loss which cannot be available for set off against the business income of the curren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Assessing Officer to verify and comment on the fresh evidence produced before Ld. CIT(A) for the first time in the appellate proceedings. 10. Ld. AR does not dispute the fact that under identical circumstances, a coordinate Bench of this Tribunal thought it fit to remand the matter to the file of the learned Assessing Officer in relation to the assessment years 2010-11 and 2011-12 in ITA Nos. 2876/Del/ 2016 by order dated 20/3/2019 and ITA No.3757/Del/2016 by order dated 7/1/2020 respectively. 11. The paper book filed before us shows that the assessee produced certain documentary evidence in support of rate difference, brokerages etc and now it remains an admitted fact that such material was not available before the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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