1. IN THE INCOMETAX APPELLATE TRIBUNAL
JODHPUR BENCH: JODHPUR
(BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND
SHRI N.K. SAINI, ACCOUNTANT MEMBER)
I.T.A. No. 165/Jodh/2012
(A.Y. 2008-09)
ITO, vs M/s. Gunjan Enterprises,
Ward-1, Near Ram Mandir,
Churu. Churu.
PAN NO. AAFFG5560N
(Appellant) (Respondent)
Assessee by :- Shri Suresh Ojha.
Department by :- Shri Mahesh Kumar- D.R.
Date of hearing : 16/09/2014
Date of pronouncement : 22/09/2014
O R D E R
PER HARI OM MARATHA, J.M. :
This appeal of the revenue, for A.Y. 2008-09 is directed against
the order of ld. CIT(A), dated 06.01.2012.
2. Briefly stated, the facts of the case are that the assessee is a
partnership firm carrying on the business in mobiles, recharge coupons
etc. For A.Y. 2008-09, it filed its return of income (ROI) on 29.09.2008,

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declaring total income of Rs. 1,36,760/-. As against the declared
income assessment has been completed u/s 143(3) on 24.12.2010 at a
total income of Rs. 75,98,406/-. The computation of income has been
done by the A.O. as under :-
Returned income Rs. 1,36,760/-
Add: 1. Addition u/s 68, as discussed Rs. 4,95,000/-
2. Disallowance of interest, as discussed Rs. 5,256/-
3. Addition on a/c of excess claim of
Remuneration, as discussed. Rs. 17,500/-
4. Disallowance of Bad debts, as discussed. Rs. 13,046/-
5. Disallowance u/s 40(a)(ia), as discussed Rs. 65,21,044/-
6. Commission / scheme disallowed, as discussed Rs. 4,09,800/-
Total Rs. 75,98,406/-
Rounded off Rs. 75,98,410/-
2.1 Aggrieved, the assessee-firm preferred appeal and ld. CIT(A) has
deleted most of the additions. The revenue is aggrieved and has
challenged the deletion of addition of Rs. 65,21,044/- made u/s
40(a)(ia) and restriction of addition of Rs. 4,09,800/- to Rs. 1 lakh
against others, by raising the following grounds of appeal :-
“(i) The CIT(A) has passed a perverse order in deleting the
addition of Rs.65,21,044/- made under sec. 40(a)(ia) for non-
deduction of TDS u/s 194H, by relying on the order in case of one

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Sh. Shrawan Kumar Agarwal for the assessment year 2007-08,
even when the facts and circumstances were different.
(ii) The CIT(A) has passed a perverse order by observing that the
facts and circumstance of the assessee were similar & identical
as in case of Sh. Shrawan Kumar Agarwal without giving
reasons/details to arrive at this conclusion.
(iii) The order of the CIT(A) is perverse and erroneous in
restricting the disallowance of Rs. 4,09,800/- to Rs. 1 lakh even
where the entire commission had been paid in cash exceeding Rs.
2500/-.
(iv) The CIT(A) has erred in directing the AO to re-compute
remuneration to partners on the basis of enhanced book profits,
even when it was not justified in facts & circumstances of the
case.
(v) The appellant craves leave to add, alter, amend, withdraw
or insert any ground or grounds of appeal before or at the time
of hearing of the appeal.”
2.2 We have heard rival submissions and have carefully perused the
entire record.

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2.3 The facts of grounds No. (i) and (ii) of this appeal are clearly
explained by the following portion of AO’s order which has been
extracted in the appellate order at page 3 and in para 3.1
"In computation of income the assessee claimed TDS of Rs.
9,22,433/-. On examination if found that during the year the
assessee received commission of Rs. 85,70,044/- from Vodafone
Essar Digilink Ltd. and out of this commission, on Rs. 83,57,617/-
the payee company deducted TDS in accordance with the
provisions of section 194H of the I.T. Act, 1961. In support of
this, the assessee produced TDS certificate issued by the payee
company. That commission was paid for activating the SIM by
retailers or Assistant Distributors. The discount/scheme and
commission a/c of the assessee was called for and examined.
After examination, the following facts came into light.
(i) The assessee since beginning of the year started giving
commission in the name of Rs. 85,70,044/- from Vodafone Essar
Digilink Ltd. and out of this commission, on Rs. 83,57,617/- the
payee company deducted TDS in accordance with the provisions
of section 194H of the I.T. Act, 1961. In support of this, the
assessee produced TDS certificate issued by the payee company.
That commission was paid for activating the SIM by retailers of
Assistant Distributors. The discount/scheme and commission a/c
of the assessee was called for and examined. After examination,
the following facts came into light.

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(i) The assessee since beginning of the year started giving
commission in the name of “scheme" to its customers form
its own a/c without receiving the amount form the
company. The assessee has distributed amount of Rs.
19,29,822/- upto 30.06.2007 as against this the assessee
has received Rs. 2,01,833/- as discount first time from
company on 05.06.2007. Thereafter, the company started
giving him commission only from 01.07.2007. Hence the
contention of the assessee that he is transferring the
commission received form company is not correct.
(ii) Up to the year end, as per books of the assessee amount
equal to this commission claimed by assessee distributed to
its four Assistant Distributors and retailers in the shape of
the discount/scheme. But only in the case four assistant
distributors it found distributed through book adjustment,
in remaining cases, the assessee paid discount/scheme in
cash to its customers which are not fully subject matter of
verification.
(iv) The assessee has not made TDS on the discount/scheme
amount transferred to the Assistant Distributors and retailers.
Neither treated the commission received as purchase not the
distribution of commission as sale.
(v) The assessee neither credited nor debited commission
amount received from company in his trading and P&L a/c. The
assessee in its books of a/c maintained a separate discount
account wherein all the credit and debit entries entered by him

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during the year and at the year end it has squared up this a/c.
On examination of discount a/c the commission of Rs.
85,70,045/- received from Vodafone Essar Digilink Ltd is found to
be distributed by assessee to its Assistant Distributors and
Retailers in the following manner.
In this regard it is found that the non deduction of tax on
commission distributed by the assessee is a fault of the assessee
u/s 40(a) (ia) of the I T. Act, 1961. Accordingly a show cause
issued to the assessee on 30.11.2010 specifically asking to him
that the whole amount of commission expenses claimed by him
should not be disallowed.
The contention of the assessee is not acceptable in the light of
Law as provided in section 194H of the IT Act 1961. The assessee
is liable to deduct tax @ 10 % on the commission or brokerage
paid during the year exceeding Rs. 25,00/-. For better
interpretation the section 194H of the IT Act, 1961 is reproduced
hereunder:
Commission or brokerage
194H. Any person, not being an individual or a Hindu
undivided family, who is responsible for paying, on or
after the 1st day of June, 2001, to a resident, any
income by way of commission (not being insurance
commission referred to in section 194D) or brokerage,
shall, at the time of credit of such income to the
account of the payee or at the time of payment of such
income in cash or by the issue of a cheque or draft or by

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any other mode, whichever is earlier, deduct income-tax
thereon at the rate of [ten] per cent:
Provided that no deduction shall be made under
this section in a case where the amount of such income
or, as the case may be, the aggregate of the amounts of
such income credited or paid or likely to be credited or
paid during the financial year to the account of, or to,
the payee, does not exceed two thousand five hundred
rupees :
Provided further that an individual or a Hindu
undivided family, whose total sales, gross receipts or
turnover from the business or profession carried on by
him exceed the monetary limits specified under clause
(a) or clause (b) of section 44AB during the financial
year immediately preceding the financial year in which
such commission or brokerage is credited or paid, shall
be liable to deduct income-tax under this section:]
Provided also that no deduction shall be made under
this section on any commission or brokerage payable by
Bharat Sanchar Nigam Limited or Mahanagar Telephone
Nigam Limited to their public call office franchisees.]
Explanation.—For the purposes of this section,—
(i) “commission or brokerage ” includes any
payment received or receivable, directly or indirectly,
by a person acting on behalf of another person for

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services rendered (not being professional services) or
for any services in the course of buying or selling of
goods or in relation to any transaction relating to any
asset, valuable article or thing, not being securities;
(ii) the expression “professional services” means
services
rendered by a person in the course of carrying on a
legal, medical, engineering or architectural profession
or the profession of accountancy or technical
consultancy or interior decoration or such other
profession as is notified by the Board for the purposes
of section 44AA;
(iii) the expression “securities” shall have the
meaning assigned to it in clause (h) of section 2 of the
Securities Contracts (Regulation)
Act, 1956 (42 of1956)91;
(iv) where any income is credited to any account,
whether called “Suspense account” or by any other
name, in the books of account of the person liable to
pay such income, such crediting shall be deemed to be
credit of such income to the account of the payee and
the provisions of this section shall apply accordingly.]
The assessee mere on the ground that he was a mediator on
behalf of company for distributing the commission to its
Assistant Distributors and Retailers could not get rid from his
legal liability. As it is cleared form explanation (i) above that

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“commission or brokerage includes any payment received of
receivable, directly or indirectly not being securities.
Considering the facts it is held that assessee was liable to
deduct tax on discount/scheme paid by him to retailers in
accordance with the provisions of section 194H of the Act. In
case of defect/failure of its part the amount is not deductible as
expenditure by virtue of section 40(a) (ia) of the I.T. Act, 1961.
For better interpretation section 40 (a) (ia) is reproduced
hereunder:
(ia) any interest, commission or brokerage,
[rent, royalty,] fees for professional services or fees
for technical services payable to a resident, or
amounts payable to a contractor or sub-contractor,
being resident, for carrying out any work (including
supply of labour for carrying out any work), on which
tax is deductible at source under C! pter XV1I-B and
such tax has not been deducted or, after deduction,
has not been paid,—
(A) in a case where the tax was deductible
and was so deducted during the last month of the
previous year, on or before the due date specified in
subsection (1) of section 139; or
(B) in any other case, on or before the last day of
the previous year:]
[Provided that where in respect of any such sum, tax
has been deducted in any subsequent year, or has been
deducted—

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(A) during the last month of the previous
year but paid after the said due date; or
(B) during any other month of the previous
year but paid after the end of the said previous year,
such sum shall be allowed as a deduction in
computing the income of the previous year in which
such tax has been paid.]
Explanation.—For the purposes of this sub-clause,—
(i) “commission or brokerage” shall have
the same meaning as in clause (i) of the Explanation
to section 194H;
(ii) “fees for technical services” shall have
the same meaning as in Explanation 2 to clause (vii)
of sub-section (1) of section 9;
(Hi) “professional services” shall have the
same meaning as in clause (a) of the Explanation to
section 194 J;
(iv) “work” shall have the same meaning as in
Explanation III to section
194C;
(v) “rent” shall have the same meaning as in
clause (i) to the Explanation to section 194-1;
(vi) “royalty” shall have the same meaning as in
Explanation 2 to clause
(vi) of sub-section (1) of section 9;

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Considering the above facts, commission of Rs. 43,75,556/- paid
to Assistant Distributors and commission of Rs. 21,45,488/- paid
to retailers (over & above Rs. 2,500/- for the financial year)
which comes to total of Rs. 65, 21, 044/- is treated as amount
not deductible u/s 40(a) (ia) of the I. T. Act, 1961 and added to
the total income of the assessee.”
2.4 The ld. CIT(A) has taken the decisions on this issue by observing
as under:-
“3.3. I have duly considered the rival stands of the AO and the
Ld. AR, i.r.o., the above issues. The facts of the case are that
the assessee is a distributor of Vodafone Essar Digilink Ltd. and
selling the SIM and Recharge Coupon to the consumer with the
help of its retailer and assistant distributor. The assessee
receipts commission/discount from the principal company, i.r.o.,
the sale of the above products and also parts with the same to
its sub distributors, for subsequent sale made through the actual
users. The core controversy of the issue under consideration is
the nature of the payment made to the retailer/assistant
distributors by the AO; towards the sale of the prepaid SIM Card
and Recharge Coupon of the principal cellular company i.e.
Vodafone Essar Digilink Ltd. As per the AO‟s understanding, in
view of the facts and circumstances of the issue under
consideration, the appellant was liable to deduct TDS u/s. 194H
of the IT Act, on the commission/discount paid to its sub agents.
On the other hand the Ld. AR submitted that the nature of
transaction under consideration, is not of any service providing

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contract but it amounts to an actual purchases and sales of
goods/product i.e. SIM Cards. He also argued that for terming
any payment as commission/brokerage, there must be existence
of relationship of principal and agent in between the assessee
and the payee, as such. He also contended that the retailer-
clients of the appellant are making outright purchase of the SIM
cards/recharging card coupon etc., therefore, the transactions
of such nature are of in between principal to principal only. In
this regard, he also submitted that unlike having an agreement
with M/s. Vodafone Essar Digilink Ltd., there is no such written
agreement exists in between the assessee and its retailer/sub
distributors and the assessee was having no control over the
conduct of business such entities, therefore, there is no
principal and agent relationship can be attributed to such
arrangement. In view of the same, it was prayed that no liability
of deduction of TDS u/s. 194H of IT Act was existed towards the
revenue sharing scheme, in between the appellant and its
retailer- clients, as discussed above.
3.3.1 I had considered the totality of the facts and legal
aspects attached to the issue under consideration. In this regard,
it is found that my predecessor, i.e. then CIT(A)-III, Jaipur had
occasion to dealt-with and decided the similar issue, in another
case of Sh. Sharwan Kumar Agarwal for A.Y. 2007-08. While
disposing such appeal (No. 204/JPR/09-10), the CIT(A)-III, vide
his order dated 15-09-2010, has given his findings cum
observations as under:-

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“I have carefully considered the facts of the case and
submissions of Ld. AR. On perusal of the relevant records, I
find that the nature of the relationship between the BSNL
and the appellant assessee (franchisee of BSNL) was
different, as compared to the nature of the relationship
between the assessee and his retailers. In this regard, it is
observed that the appellant was appointed a franchisee of
the BSNL, as per the detailed terms and conditions of
franchisee- ship contained in the agreement dated
21.3.2005, entered into between the BSNL and the
appellant, which was subsequently modified, vide another
agreement dated 13.11.2006. Therefore, the appellant was
obliged to fulfill all the terms and conditions of that
agreement and, in a way, was under the supervision and
control of BSNL, while performing his duties as the
franchisee of BSNL, in respect of the sale of recharge
coupons etc. of BSNL by him. Hence, the relationship
between the BSNL and the appellant is to be treated as
that of a Principal and Agent and thus, the
commission/discount paid by the BSNL to the appellant fell
in the ambit of the provisions of S.194-H of the I.T. Act. In
this regard, it is noticed that the BSNL had also treated
the aforesaid commission / discount given to the appellant
as commission and had also made TDS thereon u/s 194-H of
the I.T. Act. However, on going through the relevant
material placed on record, I find that the relationship
between the appellant and his numerous retailers is not
the same, as is between the BSNL and the appellant. In

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this regard, it is observed that there is no agreement of
any kind between the appellant and his retailers and
hence, there is no supervision or control of the appellant
over the retailers, after the sale of the recharge coupons
etc. by the appellant to the retailers. Further, it is also
observed that most of the appellant‟s sales of recharge
coupons etc. to the retailers are in cash and, thereafter,
there is hardly any obligation of the retailers towards the
appellant. Therefore, on these facts, the relationship
between the appellant and his retailers is to be treated as
that of Principal to Principal and not that of a Principal
and Agent. Hence, it is held that though the appellant sold
the BSNL products to the retailers at a price, which was
lower than the MRP (after passing on a part of his
commission as a discount to the retailers), yet as the
relationship between the appellant and his retailers was
that of Principal to Principal, the provisions of S. 194-H of
the I. T. Act were not applicable, in respect of the
aforesaid sale of the BSNL products by the appellant to his
retailers. Thus, it is held that as the appellant was not
liable to make TDS, in respect of the sale discount given by
him to his retailers, the impugned disallowance of Rs.
91,83,554/- made by the Ld. AO u/s 40(a)(ia) of the I. T.
Act is not sustainable. Accordingly, the AO is directed to
delete the impugned addition and consequently, this
ground of appeal is treated as allowed.”

15. 15
Subsequently, as also informed by the Ld. AR it is gathered that
the Hon‟ble ITAT Jaipur Bench “B” Jaipur, vide its order dated
21-10-2011 (ITA No.1401/JP/2010), while disposing the above
case (namely Sh. Sharwan Kumar Agarwal for A.Y. 2007-08), has
confirmed the above findings of the CIT(A)-III, viz. the issue
under consideration.
In this regard, it is noteworthy that the facts and circumstances
and the issue under consideration of the present appellate
proceeding are similar and identical to the above case of Sh.
Sharwan Kumar Agarwal, as such. Under similar circumstances,
the courts have held that the principal of judicial discipline
demands that the decisions of higher wisdom, given i.r.o., the
common issue, should be followed by the subordinate
authorities, in other cases involving the same matter. In other
words, for the sake of better judicial administration and unity,
the decisions given by jurisdictional Tribunal/Courts are bending
in nature on the lower appellate / administrative authorities.
The above ratios have been echoed in the following decisions:-
i. Dunlop India Ltd. - 154ITR172 (SC)
ii. Bank of Baroda - 256 ITR 385 (Bom)
Accordingly, while following the principal of judicial discipline,
it is held that the appellant has no liability to deduct TDS u/s.
194H of the IT Act, i.r.o., the sale discount extended to his
retailer-clients, as their transactions amount to entered in
between principal to principal and not principal to agent, as

16. 16
envisaged by the AO. In view of the same, the disallowance of
Rs. 65,21,044/-, made u/s. 40(a)(ia) in this regard, is hereby
deleted. Consequently, this ground of appeal is upheld.”
2.5 Before us both the parties reiterated their earlier stand. The ld.
D.R. has defaced order of AO and has supported the grounds of appeal
raised in this appeal. On the other hand ld. A.R. Shri Ojha has
defended the order of ld. CIT(A), and has further produced his written
submissions, which reads as under:-
“I want to submit that on last date of hearing the Hon‟ble
Bench directed to submit the brief on the argument argued on the
date of hearing regarding precedent and binding nature of the
order of coordinate Bench because the appeal in hand is covered
by the order of Jaipur Bench, specially low appeal was submitted
against the order Hon‟ble Tribunal and against the order of
Commissioner of Income Tax (Appeals).
First of all I want to submit that the an affidavit of assessee
has already been submitted along with written submission in which
it was stated that the department of Income-tax not went in the
appeal before the Hon‟ble High Court, against the order of
Hon‟ble Tribunal in case of Sh. Shrawan Kumar Agarwal on the
basis thereof the CIT(A) allowed the appeal of the assessee, this
shows that the department accepted the view taken by the
Hon‟ble Jaipur Tribunal.

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In this connection the judgment of Hon‟ble Supreme Court
reported in 266 ITR page 99 Berger Paints India Ltd. vs.
Commissioner of Income-Tax. The relevant portion is being
reproduced hereunder:
The decision in Lakhanpal National Ltd.'s case [1986]
162 ITR 240 (Guj), which clearly laid down the
interpretation of section 43B was followed by the
judgments of the Madras High Court and Bombay High
Court and was again followed by the decision of the
Special Bench of the Income-tax Appellate Tribunal,
none of which have been challenged. In these
circumstances, the principle laid down in Union of
India v. Kilumudini Narayan Dalai [2001] 249 ITR 219
(SC); CIT v. Narendra Doshi [2002] 254 ITR 606 (SC) and
CIT v. Shivsagar Estate [2002] 257 ITR 59 (SC) clearly
applies. We see no "just cause" as would justify
departure from the principle. Hence, in our view, the
Revenue could not have been allowed to challenge the
principle laid down in Lakhanpal National Ltd.'s case
[1986] 162 ITR 240 (Guj), which was followed by the
Inspecting Assistant Commissioner in the case of the
assessee in the three assessment years in question. We
are, therefore, of the view that the Commissioner, the
Income-tax Appellate Tribunal and the Calcutta High
Court erred in permitting the Revenue to raise a
contention contrary to what was laid down by the
Gujarat High Court in Lakhanpal National Ltd. 's case
[1986] 162 ITR 240. This decision has been

18. 18
subsequently followed by the decisions of the Bombay
High Court in CIT v. Bharat Petroleum Corporation Ltd.
[2001] 252 ITR 43 and the Madras High Court in
Chemicals and Plastics India Ltd. v. CIT [2003] 260 ITR
193 as well as the decision of the Special Bench in
Indian Communication Network Pvt. Ltd. v. IAC [1994]
206 ITR (AT) 96 (Delhi), which have all remained
unchallenged.
I further want to submit that the order in case of Sh.
Ramshwarup Deedwana was also submitted passed by the
Commissioner of Income-tax (Appeals-III) Jaipur. The department
even not went in the appeal before the Income-tax Appellate
Tribunal, Jodhpur Bench, Jodhpur. This also shows that the point
of issue involved has been accepted by the department.
Thus, is clearly applicable because in case of Sh. Shrawan
Kumar Agarwal and Sh. Ram Swarup, the department not preferred
any appeal, therefore, attended finality and as such the
department cannot file any appeal on the same ground before the
Hon‟ble Tribunal.
Hence, the judgment of Hon‟ble Supreme Court referred
above is applicable in toto.
I further want to draw your kind attention towards the fact
that just for the sake of argument it is accepted that there are two
views in that case the view which is favorable to the subject has to
be accepted. In this respect I want to submit that the judgment of
Supreme Court reported in 88 ITR 192 is applicable.

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The Hon‟ble Supreme Court judgment in case of CIT Vs.
Vegetable Product Ltd. 88 ITR page 192 when two Nos. of
interpretations are possible - one is in favour of the assessee must
be adopted. The judgment of Hon‟ble Supreme Court is also in
favour of the assessee. Now, you will observe that the two
judgments of Hon‟ble Supreme Court are directly applicable in
case of the assessee - first is when the department is accepted one
thing in one assessee different view cannot be taken and another is
that when two judgments are there in that case the view which is
favourable to the assessee should have been accepted. In view of
above mentioned facts and circumstances it is prayed that the case
of the assessee may kindly be treated as covered by the order of
Jodhpur Bench delivered in case of Sh. Shrawan Kumar Agarwal.
Now, I wish to rely upon the judgment of Hon‟ble Supreme
Court referred above. The judgment of Supreme Court reported in
88 ITR page 192 referred above in which it was held that when two
numbers of views of interpretation are permissible in that case one
view which is in favour of the assessee should have been accepted.
The judgment of Hon‟ble Supreme Court is directly applicable in
case of the assessee himself.
It will be worthwhile to draw your kind attention towards the
fact that provision of section 40 (a) (ia) is controversial now-a-
days, but even in these controversy the judgment of Supreme
Court has been followed.

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I want to draw your attention towards the Income Tax
Appellate Tribunal Chennai ITA No. 2076(Mds)/2012-Assessment
Year : 2009-10; C.O. No. 155 (Mds)/2013 in - ITA No. 2076
(Mds)/2012 The Income tax Officer vs. M/s Theekathir Press this
order of Hon‟ble bench is after delivering the judgment of Kolkata
High Court and Mumbai Tribunal. The Hon‟ble Tribunal
observed as under:
We find that the judgment of the Hon‟ble Allahabad
High Court is in favour of the assessee. At the same
time, we find that the orders of the Calcutta High
Court and the Gujarat High Court are against the
assessee. In such circumstances, the rule of Judicial
Precedence demands that the view favourable to the
assessee must be adopted, as held by the Hon ‟ble
Supreme Court in the case of CIT vs. Vegetable
Products Ltd., 88 ITR 192. Following the above
fundamental rule declared by the Hon‟ble Supreme
Court, we have to follow the judgment of the
Hon‟ble Allahabad High Court, which is in favour of
the assessee.
Accordingly, we hold that the disallowance under
section 40(a)(ia) applies only to those amounts „payable‟
and not to those amounts 'paid‟. Accordingly, we uphold
the order of the Commissioner of Income Tax (Appeals)
in the present case. The appeal filed by the Revenue is
liable to be dismissed.

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In these facts and circumstances you will observe that the
order of the Income-tax Appellate Tribunal Jaipur Bench Jaipur
on which the CIT (A-III) Jaipur relied is applicable in toto. It is
requested to kindly treat it covered by the order
As expressed in the open Bench kindly decides only this
issue whether in these facts and circumstances the issue is
covered by the order of Jaipur Bench in view of the judgment of
Supreme Court referred above. I am not arguing the appeal on
merits because as expressed by the Hon‟ble Bench first this
issue shall be decided whether has to be treated as covered or
not.
In view of above mentioned fact and circumstances you
will observe that the order of Hon‟ble Jaipur Bench may kindly
be followed.
I reserved my right in respect of argument on merits.
It is, therefore, prayed that first this issue may kindly be
decided as per the order of Tribunal discuss in course of
hearing.”
2.6 After considering the rival stands, we are of the considered
opinion that the ld. CIT(A) has followed the Tribunal Order in arriving
at his conclusion and hence we don’t need to deviate from his
reasoning in the light of contentions raised in the written submissions

22. 22
submitted by ld. A.R. Accordingly, we confirm the impugned deletion
and dismiss ground No. (i) and (ii) of this appeal.
3. The facts of ground No. (iii) of the Revenue’s appeal are that
the assessee has claimed payment of Rs. 21,45,488/- as commission.
The A.O has disallowed a sum of Rs. 4,29,097/- [exceeding Rs. 2,500/-]
and similarly out of commission claimed at Rs. 20,49,000/- he has
disallowed Rs. 4,09,800/- [below Rs. 2,500/-]. The ld. CIT(A) has
restricted the disallowance to Rs. 1 lakhs only.
4. Both the parties have reiterated their arguments. In fact, the
additions made by the A.O seem to be baseless and unjustifiable.
However, the assessee is not in appeal, therefore, we confirm the
finding of the ld. CIT(A) given in para 4.3 of his order and cannot allow
Ground No. (ii) of Revenue’s appeal.
5. Regarding Ground No. (iv), no material arguments were raised.
Therefore, this ground is also dismissed.
6. Ground No. (v) is formal in nature.

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7. In the result, the appeal of the Revenue in ITA No. 165/JU/2012
for A.Y. 2008-09 stands dismissed.
Order Pronounced in the Court on 22nd
September, 2014.
Sd/- Sd/-
(N.K.SAINI) [HARI OM MARATHA]
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated : 22nd
September, 2014
VL/-
Copy to:
1. The Appellant
2. The Respondent
3. The CIT By Order
4. The CIT(A)
5. The DR
Senior Private Secretary
ITAT, Jodhpur