Madura Coats Private Ltd. v. The Deputy Commissioner of Income-tax, Circle 2, Madurai
[Citation -2020-LL-0930-73]

Citation 2020-LL-0930-73
Appellant Name Madura Coats Private Ltd.
Respondent Name The Deputy Commissioner of Income-tax, Circle 2, Madurai
Court HIGH COURT OF MADRAS
Relevant Act Income-tax
Date of Order 30/09/2020
Assessment Year 2011-12
Judgment View Judgment
Keyword Tags comparable uncontrolled price method • transactional net margin method • specified domestic transaction • transfer pricing adjustment • international transaction • most appropriate method • commission expenditure • associated enterprise • commercial expediency • expenditure incurred • resale price method • profit split method • additional evidence • arm's length price • business purpose • cost plus method • commission paid • tp adjustment • comparables • cup method • net value
Bot Summary: The learned Tribunal disallowed the said expenditure in the form of commission paid to M/s.The Central Agency on the ground that there is no evidence for actual agency services availed by the Assessee being produced before the learned Tribunal and merely raising of invoices does not give rise to any presumption of rendering the actual service and therefore, the payment of such commission to M/s.The Central Agency was not an allowable expenditure. Mr.Swaminathan, learned Counsel for the Revenue, fairly submitted that for previous years also, though there was no specific and categoric finding by the learned Tribunal that CUP Method is the most appropriate method for the authorities to adopt in the case of the Assessee, but the Tribunal has observed so in paragraph 12 of the impugned order, for the present Assessment Year 2009-10, as quoted above. On the said issue, Mr.Swaminathan submitted that the Tribunal may be permitted to look into the past history of the Assessee and depending on the materials and evidence on record, the Tribunal may decide the issue afresh, in accordance with law. A bare reading of paragraph 12 of the order passed by the learned Tribunal for the previous years dated 21.12.2012 would also show that it was an open remand and no specific method was finalized by the Tribunal in the previous order of the appeal for previous assessment years. We do not expect a further open remand by the learned Tribunal on the said issue any more because such decision of the learned Tribunal is likely to affect not only the years under consideration before the learned Tribunal but also the future assessment years, as the Assessee continues to remain in the same business for such future years also. As far as the second question is concerned about allowing of the commission paid to M/s.The Central Agency as 'Business Expenditure', we leave it free for the Tribunal to look into the past history of the Assessee about the allowability of the said expenditure, and as such expenditure for the previous years has been consistently allowed by the Revenue Authority below, and there was no contrary finding by the learned Tribunal for the previous years. We do not find the reasons given by Tribunal in its impugned order dated 16.11.2016, sufficient enough to distinguish the judgment of Delhi High Court in the case of M/s. EKL Appliances Ltd. The learned Tribunal may re-decide the said issue also fairly and objectively in the light of the materials available before it for the present AY 2009-10 also.


T.C.A.No.799 of 2018 IN HIGH COURT OF JUDICATURE AT MADRAS Dated: 30.09.2020 Coram HONOURABLE Mr. JUSTICE T.S.SIVAGNANAM AND HONOURABLE Mrs. JUSTICE V.BHAVANI SUBBAROYAN T.C.A.No.799 of 2018 M/s Madura Coats Private Ltd., New Jail Road, Madurai - 625 001 ... Appellant Vs. Deputy Commissioner of Income Tax, Circle 2, Madurai ...Respondent Tax Case Appeal filed under Section 260-A of Income Tax Act, 1961, is directed against Order passed by Income Tax Appellate Tribunal, D Bench, Chennai in I.T.A No.548/Chny/2016 dated 05.04.2018 for assessment year 2011-2012. For Appellant : Mr.Sandeep Bagmar For Respondent : Mr.M.Swaminathan Senior Standing counsel 1/17 http://www.judis.nic.in T.C.A.No.799 of 2018 JUDGMENT [Judgment of Court was delivered by T.S.SIVAGNANAM, J.] This appeal has been filed by assessee under Section 260A of Income Tax Act, 1961 ['the Act', for brevity] challenging Order passed by Income Tax Appellate Tribunal, D Bench, Chennai in I.T.A No.548/Chny/2016 dated 05.04.2018 for assessment year 2011-2012. 2. appeal was admitted on 14.11.2018 to consider following substantial questions of law: 'i. Whether Tribunal was right in holding that TNMM should not be applied for computing arm's length price in respect of 0.05% of class of transaction being 'export of goods' selectively, when 99.95% of international transaction forming part of same class have been subject to transactional net margin method under Rule 10B(1)(e) read with Rule 10C? ii. Whether application of CUP method under Rule 10B(1)(a) is correct when comparative data in relation to price for exports to AE as against non AE is very different because of differences in geographic 2/17 http://www.judis.nic.in T.C.A.No.799 of 2018 markets of sale? and iii) Whether Tribunal was right in not appreciating legal argument that application of external CUP method under Rule 10B(1)(a) is not possible for cases wherein sale price per product are compared as comparative data for export prices is not available in public domain?' 3. We have heard Mr.Sandeep Bagmar, learned counsel appearing for appellant and Mr.M.Swaminathan, learned senior standing counsel appearing for respondent. 4. Tribunal by impugned order disposed of appeal by following assessee's own case for assessment year 2009-2010 in ITA No.770/Mds/2014 dated 16.11.2016. Against said order, appellant / assessee had filed Tax Case Appeal before this Court in TCA No.739 of 2017 raising following substantial questions of law:- '1.Whether finding of DRP and Tribunal that decision of Tribunal in appellants' own case for earlier years has held that CUP method was appropriately used in preference to TNMM is perverse? 2. Whether Tribunal was right in holding that transactional net margin method should not be applied for 3/17 http://www.judis.nic.in T.C.A.No.799 of 2018 benchmarking/ computing arms length price in respect of 0.88% of transaction when 99.12% of international transaction forming part of same class have been subject to transactional net margin method under Rule 10B(1)(e) read with Rule 10C? 3. Whether application of CUP method under Rule 10B(1)(a) is correct when comparative data in relation to price for exports to AE as against hon-AE is very different because of market, mode of delivery, geography location and volume of sale? 4. Whether TPO can arrive at NIL arms length price without even rejecting arms length price arrived by Appellant and without even mandatorily applying provisions of Section 92 and 92C wherein TPO is bound compute arms length price as per methods prescribed under Rule 10B? 5. Whether TPO has jurisdiction to question commercial expediency in relation to expenditure incurred by Appellant for its business purpose? 6. Whether TPO has jurisdiction to decide how assessee should conduct its business and regarding necessity or otherwise of incurring expenditure in interests of its business? 7. Whether TPO, DRP and Tribunal erred in not appreciating that The Central Agency ( TCA ) renders 4/17 http://www.judis.nic.in T.C.A.No.799 of 2018 various services to Appellant such as demand and supply management, forecasting of monthly / quarterly / annual demand, rolling forecasts, raising of purchase orders, acting as central coordination agent in connection with supply chain? 8. Whether TPO, DRP and Tribunal were 3/22 Dt.14.09.2020 in T.C.A.No.739 OF 2017 M/s. Madura Coats Pvt Ltd. vs. Dy.Commr. Of I.T. correct in disallowing commission expenditure incurred by Appellant contending that such expenditure has not resulted in any benefit to Assessee instead of computing Arms Length Price under Sections 92 and 92C read with Rule 10B?' appeal has been disposed of by Division Bench of this Court by Judgment dated 14.09.2020. 5. It is submission of learned counsel appearing for respondent / revenue that Division Bench of this Court has infact decided assessee's appeal and relevant portion of Judgment reads as follows: '3. learned Tribunal, in case of Assessee, which is manufacturer of various kinds of threads, has held in paragraph 12 of its order, referring to order for previous Assessment years, wherein it had clearly decided that for international transactions, CUP method (Comparable Uncontrolled Price Method) was appropriately used for making Transfer Pricing Adjustment (for short, TP Adjustment) under 5/17 http://www.judis.nic.in T.C.A.No.799 of 2018 Section 92C of Income Tax Act, in comparison to TNM Method (Transactional Net Margin Method) under said provision, and for recalculating TP adjustment for present AY 2009-10, matter was remitted back to learned Transfer Pricing Officer. Paragraph 12 of order of learned Tribunal dated 16 November 2016, is quoted below for ready reference. 12. In our opinion, decision of T ribunal is clear in that C UP method was appropriately used in preference to TNM method. only modification suggested by Tribunal was to consider external comparables also and this direction was given noting, submissions of assessee that external comparables could be placed 4/22 Dt.14.09.2020 in T.C.A.No.739 OF 2017 M/s. Madura Coats Pvt Ltd. vs. Dy.Commr. Of I.T. on record for determining Arms Length Price under CUP method, if it was given opportunity. above decision was available with DRP when it was dealing with matter for impugned assessment year. That assessee could not furnish any external comparable has been specifically noted by ld. DRP at para 2.7 of its order. Hence, in our opinion assessee cannot say that ld. DRP had not taken proper cognizance of Tribunal order for earlier years. Apart from this, what we find is that there were forty nine number of items in which internal comparables which were totally uncontrolled were readily available. No doubt, it is true that Pune bench in case of Amphenol Interconnect India P. Ltd (supra) held that CUP method was not appropriate for evaluating part of exports. But reasons for taking said view was on account of difficulties in carrying out adjustments for differences between transactions with Associated Enterprise and Non Associated Enterprise, which is not case here. 13. Coming to contention of ld. Authorised Representative that Sec. 92C of Act mandates adjustment and determination of Arms Length Price on class of transactions, it is necessary to have look of Sec. 92C(1) of Act, which is reproduced hereunder:- M/s. Madura Coats Pvt Ltd. vs. Dy.Commr. Of I.T. 1) arm s length price in relation to international transaction or specified domestic transaction shall be determined by any of following methods, being most appropriate method, having regard to nature of transaction or class of transaction or class of associated persons or functions performed by such persons or 6/17 http://www.judis.nic.in T.C.A.No.799 of 2018 such other relevant factors as Board may prescribe, namely : (a) comparable uncontrolled price method ; (CUP) (b) resale price method ; (RPM) (c) cost plus method ; (CPM) (d) profit split method ; (PSM) (e) transactional net margin method ; (TNMM) (f) such other method as may be prescribed by Board . reading of above, clearly indicate that most appropriate method has to be selected having regard to nature of transactions or class of transactions. In our opinion, when uncontrolled comparables are available internally on some of items which was sold to Associated Enterprise then such comparables would form separate class of its own. TPO had considered forty nine thread types for which there were internal uncontrolled transactions available for comparison. TPO had not made adjustment for any of other varieties of thread sales made by assessee to its Associated Enterprise. Nevertheless, we do find that at least for eight items among these forty nine thread types, mentioned at Sl.No.27, 28, 30, 35, 37, 38, 39 & 44, there was negative differences adjustment which were ignored by TPO, in work out at annexure of its order. When class of items are considered for adjustment, negative effect of some of items therein cannot be ignored. As for contention of assessee is that there were geographical difference between supplies made to Associated Enterprise and Non Associated Enterprise, there is clear finding by ld. DRP that assessee was catering to Asian countries and Associated Enterprise were located in Sri Lanka, Mauritius, Pakistan and Egypt and Non Associated Enterprises were located in Srilanka, Bangladesh, Malawi etc with not much of geographical difference. Viz-a-viz volume discount mentioned by ld. Authorised Representative, ld. DRP had given clear finding that there were substantial sales in alteast in five items falling in table appearing in para 2.10 of its order. Considering all these, we are t he opinion that lower authorities were justified in selecting CUP method over TNM method. However, as mentioned by us, computation of Arms Length Price adjustment required on forty nine number of items mentioned in order of TPO requires to be reworked, so that negative amounts are also considered for aggregation and for working out Arms Length Price adjustment that is required. For this limited purpose of recalculation, we remit issue back to file of Assessing Officer/TPO. 7/17 http://www.judis.nic.in T.C.A.No.799 of 2018 4. second issue raised before us, arising from same order of learned Tribunal, is with regard to some commission paid to M/s.The Central Agency, appointed by Assessee under Supplemental Agreement dated 24 March 2005, to avail its services for finding market for said threads and procuring purchase orders from all over world. learned Tribunal disallowed said expenditure in form of commission paid to M/s.The Central Agency on ground that there is no evidence for actual agency services availed by Assessee being produced before learned Tribunal and merely raising of invoices does not give rise to any presumption of rendering actual service and therefore, payment of such commission to M/s.The Central Agency was not allowable expenditure. relevant portion of order of learned Tribunal in impugned order in this regard are also quoted below for ready reference :- What assessee was bound to pay was commission based on net invoice value. What agent was supposed to do was promote sale of assessee. Finding of ld. TPO is that no such services were rendered by TCA to assessee. It is not disputed that invoices were raised by TCA on assessee, based on net value of order. It is also not disputed that supplies were made by assessee only to its group concerns. question that is to be addressed is whether TCA had procured orders for assessee as its agent. Ld. Assessing Officer had given clear finding that no services in nature of procurement of any orders were discernable from e-mail correspondence between assessee and M/s. TCA. Argument of assessee before ld. TPO and ld. DRP was that primary role of M/s. TCA was to indentify requirements of assessee and get orders. However, no evidence whatsoever was produced by assessee in support of this contention. It was for assessee to show services it had received from M/s. TCA. When supplies were all to group concerns, we cannot fathom what marketing services could have been done by M/s. TCA. No doubt, Hon ble Delhi High Court in case of M/s. EKL Appliances Ltd (supra) had held that legitimate business needs of assessee should be understood from point of prudent businessman and it was not for Assessing Officer to dictate what business needs. There can be no quarrel on this 8/17 http://www.judis.nic.in T.C.A.No.799 of 2018 view taken by Hon ble Delhi High Court. Nor can there be any quarrel on view taken by same Court that ld. TPO should not question how to conduct business. These judgments cannot in our opinion be extra-polated to mean that there rested no onus on assessee, to show business purpose for which payments were effected by it. Commercial necessity of payment is something which is well within power of assessee to decide considering its business interest. However, it cannot say that such commercial necessity or expediency has to be presumed. Assessee was bound to show agency services rendered by M/s. TCA which it failed to do. Mere raising of bills cannot give rise to presumption of rendering any services. As already noted by us orders on which commission was paid was only on items sold to group concerns and not to any third parties. There is much strength in argument of ld. Departmental Representative that in such situation onus of assessee was much more than in scenario where orders on which commission was received were on supplies to third parties. Assessee had failed to discharge this. Consolidation of fragmented orders could have been done by assessee itself and did not require services of Associated Enterprise or knowledge of any sublims stalls. When assessee was unable to bring on record anything to show for what reason agency commission was paid, in our opinion there arose exceptional circumstance where by Arms Length Price could be taken as Nil. As for decision of Delhi Bench of Tribunal in case M/s. McCann Erickson India (P) Ltd (supra) strongly relied by ld. Authorised Representative, assessee therein was able to demonstrate type of services, description of service and benefits received by it from its Associated Enterprise. Further, payment was not agency commission but management commission fees. In host of other judicial decisions relied by ld. Authorised Representative also question dealt was on management fees and not on agency commission. In these circumstances, we do not find any reason to interfere with orders of lower authorities. Ground No.3 stands dismissed.' 5. learned counsel for Assessee Mr.Sandeep Bagmar, drew our attention to previous order of learned Tribunal dated 21 December 2012, by which learned Tribunal 9/17 http://www.judis.nic.in T.C.A.No.799 of 2018 decided appeals for preceding years viz., ITA Nos.2207, 2212 and 2213/Mds/2007 [AY 2002-03 to 2004-05] (Asst. Commissioner of Income Tax vs. M/s.Madura Coats Pvt. Ltd.) as well as ITA Nos.19 & 2032/MDS/2011 (AY 2006-07 and AY 2007-08) (M/s.Madura Coats Pvt. Ltd. vs. Assistant Commissioner of Income Tax). 11/22 Dt.14.09.2020 in T.C.A.No.739 OF 2017 M/s. Madura Coats Pvt Ltd. vs. Dy.Commr. Of I.T. 6. Paragraph 12 of previous order passed by learned Tribunal on 21 December 2012 is quoted below for ready reference : 12. In view of above, we are of considered opinion that matter requires fresh adjudication. order passed by DRP is in subsequent years to order of CIT(A), orders passed by CIT(A) in assessment year 2002-03 to 2005-06 will have bearing in later years. We therefore, remit matter back to CIT (A) for assessment years 2006-07 and 2007-08 for deciding matter afresh by passing detailed and speaking order. CIT(A)/DRP while adjudicating matter afresh shall interalia take into account external comparables while determining international pricing. counsel for Assessee has made statement at Bar that Assessee would provide details of international comparables. CIT(A)/DRP shall also take into consideration different market conditions. market conditions does not mean geographical condition alone but also includes size of market, demand and other relevant factors influencing market conditions as whole. 13. For Assessment Year 2003-04 and 2004-05 Revenue has raised additional ground of export incentive provide to Assessee under Section 80HHC. D.R. Has fairly conceded that now this issue is squarely covered in favour of Assessee by judgment of Hon'ble Hon'ble Supreme Court of India in case of Topman Exports vs. CIT, reported as 342 ITR 49(SC). Accordingly, we dismiss this ground of appeal of Revenue. 7. learned counsel for Assessee, Mr.Sandeep Bagmar, therefore, submitted that there was no clear finding of learned Tribunal in previous order dated 31 December 2012, for previous assessment years, that only CUP Method should be adopted for TP adjustment and not TNM Method, which Assessee wanted to adopt, looking at nature of 10/17 http://www.judis.nic.in T.C.A.No.799 of 2018 business. Assessee also undertook before learned Tribunal that it would supply data relating to other external comparables in market available, so that appropriate TP adjustments could be made. But, however, misconstruing same, Tribunal has made remand with specific direction for this AY 2009-10, that CUP Method was most appropriate method to be adopted under Section 92C of Act for Assessee, learned Tribunal has bound down lower authorities to adopt CUP Method and make TP Adjustments accordingly and only for recomputation of TP Adjustments according to CUP Method, matter has been remitted back to lower authorities. He, therefore, submitted that present remand by learned Tribunal for AY 2009-10 shall also be held to be only open remand, leaving it free for learned TPO to decide once again as to which is most appropriate method to be adopted in facts and circumstances of case, for TP Adjustment, whether CUP method or TNM Method and then make T.P. Adjustments, if any. 8. On other hand, learned counsel for Revenue Mr.Swaminathan, also submitted that in pursuance of previous remand order of learned Tribunal dated 21 December 2012, for previous assessment years, as stated above, for some of assessment years, orders have been passed by TPO/DRP below, and again Assessee has preferred appeals before learned Tribunal itself which are also pending there. He submitted that for such previous years, since CUP Method was again adopted by learned authorities like CIT (Appeals) or Dispute Resolution Panel, Assessee being dissatisfied with same, has again preferred appeals before learned Tribunal and even those appeals are pending before learned Tribunal. 9. Mr.Swaminathan, learned Counsel for Revenue, fairly submitted that for previous years also, though there was no specific and categoric finding by learned Tribunal that CUP Method is most appropriate method for authorities to adopt in case of Assessee, but Tribunal has observed so in paragraph 12 of impugned order, for present Assessment Year 2009-10, as quoted above. 10. On second issue regarding allowing commission paid to M/s.The Central Agency, Mr.Sandeep Bagmar, learned counsel for Assessee, argued that for all previous years, 11/17 http://www.judis.nic.in T.C.A.No.799 of 2018 such expenditure or commission paid same to M/s.The Central Agency was allowed as 'Business Expenditure', on basis of similar evidence produced before authorities below, but learned Tribunal, for first time, for AY 2009-10, has disallowed same on its own wrong assumption that no such evidence of actual agency services was available on record. He therefore submitted that even this issue deserves to be remanded back to learned Tribunal for deciding same on basis of available materials and evidence on record, as Assessee had incurred those expenditure actually and there was commercial expediency for incurring same and such decision about commercial expediency lies only with Assessee and not with Assessing Authority. 11. On said issue, Mr.Swaminathan submitted that Tribunal may be permitted to look into past history of Assessee and depending on materials and evidence on record, Tribunal may decide issue afresh, in accordance with law. 12. We have heard learned counsel on both sides and perused materials on record. 13. While we make it clear that in our opinion, which method will be most appropriate to be adopted for TP Adjustment by Authorities of Department, is to be decided by fact finding bodies only, as section 92C does not give any guidelines, as to which method whether CUP Method or TNM Method is appropriate to be applied in facts and circumstances of particular Assessee, looking to nature of business. Though there are rules framed under said provision in Income Tax Rules, 1962, but it always depends on facts and circumstances of each case, as to which method has to be adopted and which method is most appropriate method to be adopted. In our opinion, it is not even question of law, to be considered by High Court. 14. Be that as it may, in our opinion, only observation which we, in present appeal, intend to make is that there is obviously misreading of previous order dated 21 December 2012, passed by learned Tribunal for previous Assessment Years, while deciding present appeal for AY 2009-10. While earlier order made open remand to authorities below to decide as to which is most appropriate method to be adopted, CUP Method or TNM Method, learned 12/17 http://www.judis.nic.in T.C.A.No.799 of 2018 Tribunal, by impugned order dated 16 November 2016 for AY 2009-10 has apparently, fallen into error, in holding that CUP Method as appropriate method and that this issue was already decided by Tribunal, which was not correct reading of previous order dated 21.12.2012. 15. bare reading of paragraph 12 of order passed by learned Tribunal for previous years dated 21.12.2012 would also show that it was open remand and no specific method was finalized by Tribunal in previous order of appeal for previous assessment years. This misreading of previous order by learned Tribunal while passing present impugned order on 16.11.2016 has resulted in multiplicity of litigation and after remand also, as stated by learned counsel for Department before us, second round of appeals has again come up before learned Tribunal itself, which appeals are said to be pending before learned Tribunal as of now. 16. We are therefore constrained to observe that Tribunal, being final fact finding body, ought to have finalized said exercise of final fact finding at its own level, instead of remanding cases again and again, which in our opinion defeats very purpose of expeditious disposal of TP adjustments in case of international transactions u/s 92C of Act, read with relevant Rules framed under provisions of Act, as such huge delays upon remand/ reassessment or readjudication, and then again, second round of appeal before Tribunal, unnecessarily projects very bad image of delays by Revenue Department on international scenario, where expectations of Revenue Department in India is of expeditious adjudication and not remand and readjudication and then second round of appeals, as if it was shuttle game between Assessee and Revenue Authorities. With Revenue Authorities as well as final fact finding Appellate Forum, are two places where issues like this are expected to achieve finality. 17. We do not want to make any kind of adverse comments in this regard, having high respect for final fact finding body like Income Tax Appellate Tribunal, under Income Tax Act, but we leave it for learned Tribunal, with request to decide issue on merits, on issues of TP Adjustments, giving finality on basis of materials and evidence before it. It is needless to say that learned Tribunal 13/17 http://www.judis.nic.in T.C.A.No.799 of 2018 itself enjoys power of Civil Court to summon relevant evidence and material before itself. As given in present case, if data relating to external comparables were not available before it, learned Tribunal could have very well directed both sides, viz., Revenue Authorities below and Assessee, to adduce relevant evidence before itself. Assessee in present case had undertaken to produce relevant data relating to external comparable before learned Tribunal. Therefore, it was only matter of some time to be granted by Tribunal to direct both sides to adduce such evidence from public domain available for comparison, to decide as to which is most appropriate method to be adopted looking to nature of business etc. as in Section 92C of Act. Of course, mathematical computation work could have been left to Adjudicating Authorities below, or done by Tribunal itself with assistance of Counsels/Assessees etc. As far as appropriateness of method to be adopted for TP adjustments was required to be done, in our considered opinion, Tribunal should not have remanded matter back to authorities below and that too to two different authorities, viz., Dispute Resolution Panel and Commissioner of Income Tax (Appeals), in previous order, and that too by committing mistake of misreading of previous order dated 21.12.2012 and holding that CUP Method was already decided to be only appropriate method, whereas Assessee has been contending otherwise throughout, and is aggrieved by adoption of CUP method and was pressing of TNM Method. In facts and circumstances of case, and Assessee is again in second round of appeals before learned Tribunal against orders passed by authorities below on remand made by previous order dated 21.12.2012. 18. Like we are seeing in present case, it was expected of learned Tribunal also to realize consequences of open remand made or remand made to authorities below only for re-computation with appropriateness of method decided finally at its own end. multiplicity of litigation and rounds of appeal, what we have described as shuttle game, should have been seen by learned Tribunal and therefore, we expect at least from now on, learned Tribunal will decide on issue of appropriateness of method for TP adjustments, while 14/17 http://www.judis.nic.in T.C.A.No.799 of 2018 deciding all pending appeals before it, as far as this Assessee is concerned and also other Assessees by recording its own reasons and taking into account relevant evidence and materials on record, and if necessary, by calling additional evidence before it, with regard to external comparables, from both sides. We do not expect further open remand by learned Tribunal on said issue any more because such decision of learned Tribunal is likely to affect not only years under consideration before learned Tribunal but also future assessment years, as Assessee continues to remain in same business for such future years also. 19. As far as second question is concerned about allowing of commission paid to M/s.The Central Agency as 'Business Expenditure', we leave it free for Tribunal to look into past history of Assessee about allowability of said expenditure, and as such expenditure for previous years has been consistently allowed by Revenue Authority below, and there was no contrary finding by learned Tribunal for previous years. We do not find reasons given by Tribunal in its impugned order dated 16.11.2016, sufficient enough to distinguish judgment of Delhi High Court in case of M/s. EKL Appliances Ltd. learned Tribunal may re-decide said issue also fairly and objectively in light of materials available before it for present AY 2009-10 also. 20. With these observations, without answering questions of law raised before us, we set aside order of learned Tribunal dated 16 November 2016 for AY 2009-10, with request to decide both issues appropriately, as noted above, after giving opportunity of hearing to both sides and if necessary, to allow them to adduce relevant evidence also before it. In view of matters having already taken long so far to be decided right from AY 2002-03 to AY 2009-10, after which about 10-11 years have now passed by, we request learned Tribunal to decide appeals now within period of six months from today.'' Following above decision in assessee's own case, 15/17 http://www.judis.nic.in T.C.A.No.799 of 2018 present appeal also stands disposed of in terms of observations made in T.C.A.No.739 of 2017 dated 14.09.2020. No costs. (T.S.S.J.) (V.B.S.J.) 30.09.2020 Index :Yes / No ; Internet :Yes / No Speaking Judgment / Non Speaking Judgment To Income Tax Appellate Tribunal, D Bench, Chennai 16/17 http://www.judis.nic.in T.C.A.No.799 of 2018 T.S.SIVAGNANAM,J., AND V.BHAVANI SUBBAROYAN, J., ssd T.C.A.No.799 of 2018 30.09.2020 17/17 http://www.judis.nic.in Madura Coats Private Ltd. v. Deputy Commissioner of Income-tax, Circle 2, Madurai
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