MA No. 103-104/Ahd/2015 Arising out of I.T.A. Nos.3383/Ahd/2010 and 539/Ahd/2011 Assessment year: 2007-08 and 2008-09 Page 1 of 3 IN INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH, AHMEDABAD [Coram: Pramod Kumar AM and Rajpal Yadav JM] MA No. 103-104/Ahd/2015 Arising out of I.T.A. Nos.3383/Ahd/2010 and 539/Ahd/2011 Assessment year: 2007-08 and 2008-09 Maniar & Co Applicant Near Ajit Mills, Gujarat Bottling Road Rakhial, Ahmedabad 380021 [PAN: AABFM4919K] Vs. Joint Commissioner of Income Tax Range 11, Ahmedabad . . Respondent Appearances by: P F Jain for applicant Prasoon Kabra for respondent Date of concluding hearing : July 15, 2016 Date of pronouncing order : October 13, 2016 ORDER Per Pramod Kumar, AM: [1] By way of these applications, assessee applicant seeks rectification of mistake, apparent on record, alleged to have crept in order dated 22nd July 2012 passed by Tribunal. [2] mistake is said to be this. While Tribunal has confirmed disallowance of commission for both assessment years before us, on ground that there was no evidence of services rendered- as evident from observations to effect learned AO had allowed commission to various persons which had been found genuine payment. Ld CIT(A) also upheld addition on ground that appellant had not given any evidence, of services being rendered by them. burden of proof lay upon assessee. Therefore, we uphold order of CIT(A) . However, according to applicant, issue MA No. 103-104/Ahd/2015 Arising out of I.T.A. Nos.3383/Ahd/2010 and 539/Ahd/2011 Assessment year: 2007-08 and 2008-09 Page 2 of 3 before ITAT was disallowance of 20% commission under section 40A(2)(b) and there was no dispute regarding rendition of service and respective grounds have not been taken adjudicated resulting into apparent mistake as envisaged under section 254(2) of Act . [3] We have heard rival contentions, perused material on record and duly considered facts of case in light of applicable legal position. [4] Undoubtedly, so far as assessment proceedings are concerned, disallowance was made under section 40A(2)(b) and issue regarding rendition of services did not come up for consideration at that stage. However, when matter travelled to CIT(A), for both these assessment years, disallowance was confirmed on ground that there was no evidence for rendition of services. question, therefore, arises whether, disallowance having been confirmed by CIT(A) on ground of lack of evidence of services having been rendered- even though disallowance was originally made under section 40A(2)(b), Tribunal committed error apparent on record in confirming disallowance on ground that there was no evidence for rendition of services. We are unable to see any merits in plea of assessee. order of CIT(A) and AO are required to be seen in conjunction, in view of merger theory, and Tribunal was indeed required to view issue in appeal as such. admissibility of deduction under section 37(1), as has been adjudicated by CIT(A) and ITAT, is basic issue, and unless something is held to admissible for deduction under section 37(1), disabling provisions under section 40A donot come into play at all. view is thus indeed possible that disabling provisions of Section 40A, on given facts, were purely academic in application. Viewed thus, there is no mistake apparent on record, expression must remain confined to cover only such cases on which no two views are possible- as is law settled in case of ITO Vs Volkart Bros [(1971) 82 ITR 50 (SC)], in approach of Tribunal. That apart, even in situation in which aspect of deductibility has been taken up by Tribunal itself- even when said aspect has not been taken up at assessment stage, special bench of Tribunal, in case of Tata Communications Ltd Vs JCIT [(2009) 121 ITD SB 384 (Mum)], has declined to hold that there is any mistake apparent on record in approach so adopted by Tribunal. It was held by Tribunal that, assessee s contention that it was not required to satisfy condition regarding rendering "eligible telecommunication services" because no such objection was raised by Departmental Representative, and as it was not raised by AO in assessment order, is devoid of any merit. Once legal claim was before Tribunal, it was duty bound to consider and examine that all conditions are satisfied before relief is allowed. This is precisely what Tribunal has done and assessee is not justified in contending that question of basic or cellular services could not have been examined by Tribunal. When such are views of special bench, which bind this division bench, we are unable to see any legally sustainable merits in plea of assessee. If assessee is aggrieved of order of Tribunal, as he is, remedy lies elsewhere. We must, however, dismiss these rectification petitions as devoid of any merits sustainable in law. MA No. 103-104/Ahd/2015 Arising out of I.T.A. Nos.3383/Ahd/2010 and 539/Ahd/2011 Assessment year: 2007-08 and 2008-09 Page 3 of 3 [5] rectification applications are dismissed. Pronounced in open court today on 13th day of October, 2016 Sd/- Sd/- Rajpal Yadav Pramod Kumar (Judicial Member) (Accountant Member) Dated: 13th day of October, 2016. Copies to: (1) appellant (2) respondent (3) Commissioner (4) CIT(A) (5) Departmental Representative (6) Guard File By order Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad Maniar & Co. v. Joint Commissioner of Income-tax, Range-11, Ahmedabad