9911796707
TMI Blog1976 (10) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant previous year is Financial year ending on 31st March, 1972. The assessee, as we were told, had effected total sales of Rs..... lakhs during the year on which it claimed as allowable revenue expenditure secret commission to the tune of Rs....., which gave a percentage of. 6 per cent. For the immediately preceding two years (Asst. yrs. 1969-70 and 1970-71) it had similarly claimed secret commission of Rs..... on sales of Rs..... (75 per cent) and Rs...... on sales of Rs..... lakhs (.56 per cent), which had not been allowed to the assessee by the ITO as well as by the AAC. However, for those two years, the Tribunal, Bombay Bench 'A' by its order dt. April, 1975 in I.T.A. Nos. 3063 and 2353 (BOM)/72-73 allowed the secret commission a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1971 and 29th March, 1972, approving the payments. The ITO rejected the claim as early as on 25th Nov., 1972, which is the date of the assessment order, by merely stating that "secret commission paid for which no details are furnished". 4. The AAC held, inspite of the Tribunal's order dt. 2nd July, 1974, which was produced before him, that he could not agree with the observations of the Tribunal. According to him on the evidence produced by the assessee in the form of Minutes of the Meetings of the Directors and the cash book extracts, no inference was possible as to why the commission was paid, on what transaction, at what rate of sales, etc. He also observed that it was not known as to who authorised the payment and what were the chec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Directors by passing resolutions, that for Bombay the payments were made out off cash withdrawals made from the bank and for Ahmedabad cheques were sent from Bombay, which on encashment were utilised for paying such secret commission, that by its very nature no details could be furnished about such secret payments in the interests of the business, and that with the progressive increase in the company's sales from year to year the assessee had made an attempt to reduce the percentage of commission payable, which went down to as low as. 3 per cent for Assessment year 1974-75. 6. Shri B.A. Palkhiwala, the learned counsel for the assessee, requested us to take into account the contents of this Affidavit made by Shri C and filed before the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the order of the Tribunal even in the absence of that fact. This according to us is not proper and is against the precepts of law. A lower Tribunal has to accept the order of the higher Tribunal, even if the former is not in agreement with the views expressed by the latter, unless on new facts another conclusion can be reached. The AAC is therefore, not justified in disagreeing with the order of the Tribunal if the facts of the year are identical with the facts of an earlier year, for which the Tribunal might have decided the issue. 9. However, in view of the Affidavit filed by Shri C before the Tribunal for the first time, we do not think, we can finally determine this issue without giving an opportunity to the authorities below to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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