- (1.) AFTER hearing the learned advocates for the parties and perusing the application for condonation of delay, we are satisfied with the grounds stated in the petition. Accordingly, the delay is condoned. The application under Section 5 of the Limitation Act is allowed. GA No. 1473 of 2008 is thus disposed of.
(2.) WE now take up the application for admission of appeal. We have heard learned Advocates for the parties. We have also perused the order passed by the Tribunal. It appears that the Tribunal has specifically held as follows: 9. The Id. DR relied on the remand report of the Assessing Officer and contended that the disallowance made by the Assessing Officer was justified. The Id. DR, however, could not assail the argument of the Id. A/R that no item of expenditure under the head commission was found unverifiable. 10. We have considered the rival submissions made by both the sides and gone through the records. Prima facie the Assessing Officer neither in the original settlement nor in the proceedings for the remand report has pointed out any defect in the maintenance of the accounts and the details by the assessee with regard to the payments of commission to the foreign agents. 10.1 It is a fact that all relevant details have been before the lower authorities and have been examined particularly with reference to remand proceedings. The Id. CIT(A) however, proceeded on the basis that claim of the assessee with regard to the payments of Brokerage and Commission has gone up during the year under appeal though compared to the assessment year 2000 -01 where the commission payment was Rs. 157.86 lakhs on turnover of Rs. 2,269.82 lakhs, the payment of commission during the year under appeal was only Rs. 135.24 lakhs on turnover of Rs. 2,992.93 lakhs [page 26 of the CIT(A)'s order]. But then it is also seen that the Id. CIT(A) erred in drawing the average of three years of payment of commission which in fact comes to Rs. 118.74 lakhs in place of Rs. 71.00 lakhs noted by the CIT(A). Further, it is seen that the percentage of average commission on average sales of the past three years comes to 5 per cent. During the year under appeal, payment of commission is Rs. 135.24 lacs on total sales of Rs. 2,292.93 lakhs which is less than 5 per cent, After going through the facts on record and the submissions made by the rival parties, in our opinion no disallowance out of the claim made by the assessee with regard to the payment of brokerage and commission was justified. Accordingly, we delete the disallowance of Rs. 64,00,000 sustained by the CIT(A). It further appears that on the other point the Learned Tribunal has held as follows: We have heard the rival submissions and perused the records. We find that the contentions raised by the Id. A/R proceed on the basis that expenditure incurred for international travelling were fully verifiable and that there has been no specific mention about any item of expenditure not supported. Secondly, he vehemently contended that the result of the expenses incurred on travelling are to be taken into consideration at least with the result it has shown in the subsequent year where the sales have almost doubled and there was no serious necessity felt for incurring any further expenditure for travelling over and above the amount of Rs. 46 lakhs which is definitely less than 0.50 per cent of the total sales. However, we are of the opinion that so far as the travelling expenses are concerned, there is every likelihood of some expenses of personal nature of the partners for fooding etc., and it is proper to make some disallowance out of such expenses by holding that the same were not wholly spent for business. Having considered the facts and the arguments made by the rival parties we are of the view that disallowance of Rs. 45 lakhs out of the expenses incurred under the head Foreign Travelling would take care of personal expenses that may be incurred by the partners which are not considered having been spent for the purpose of business. Accordingly, we uphold the disallowance out of Foreign Travelling expenses to the extent of Rs. 45 lakhs.
(3.) WE also express the same opinion as expressed by the Tribunal. We do not find any reason to interfere with the order so passed by the learned Tribunal nor the order so passed by the learned Tribunal suffers from any legal infirmity nor we find that any substantial question of law is involved in this appeal. Hence, the appeal being ITA No. 319 of 2008 is dismissed.;