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"Taking into account the circumstances stated above, I have to hold that there was over-invoicing of imports made from Atvida-bergs Industries, Sweden, for the period relevant to the assessment year '1962-63. Taking into account the fact that there was 40 per cent. over-invoicing as revealed by the letter from Assab to L. Schussler dated March 25, 1965, and calculating the quantum of over-invoicing on the basis of the calculation made in the enclosure to the letter, the over-invoiced amounts work out to Rs. 3,37,392 .... As a result of the search, it came to light that the assessee has been receiving back the commission paid to some of its agents. This position was accepted by the company and in connection with the assessment for 1966-67, it was held that 'kickback commission' was received from Bangalore Trading Corporation, Chellur Corporation and Sarada Agencies. The managing director of India Manufacturers (Private) Limited, a part of which is Sarada Agencies had also deposed that that company had been returning part of the commission received from the assessee. Shri D. V. Jagga Rao, manager, also deposed that he was surrendering four-fifths of the commission to be paid to him. There was also definite evidence to show that such 'kickback commission' was received.during' the year relevant for 1962-63 assessment. When Mr. T. V. K. Shastry, an employee of the assessee, was specifically questioned on various self cheques drawn by the assessee which included the following cheques relating to the accounting year relevant for 1962-63 assessment :
'These cheques were prepared at the instance and direction of Mr. Pratap, managing director of the company. The encashed amounts were given to Mr. T. V. K. Shastry who disbursed the amount as per Mr. Pratap's instructions.' In view of the clear evidence available, I hold that the assessee has been receiving 'kickback commission' during this year also. The total commission paid to the three agents was Rs. 97,259. The exact number of machines sold to them is not ascertainable. However, it is gathered that out of the total sale of 4,468 typewriters about 30 per cent. would be the sales to these agents. On this basis, the number of machines sold to these persons could be taken at 1,340. At Rs. 40 per machine, the amount of 'kickback commission' is fixed at Rs. 53,600. To this four-fifths of the commission paid to Mr. Jagga Rao, viz., four-fifths of Rs. 28,145 or Rs. 22,516 shall be added."

5. The assessee preferred an appeal. The Appellate Assistant Commissioner found some reasons to hold as follows :

"In view of the evidence gathered by the Income-tax Officer, I hold that the assessee has been receiving 'kickback commission' during the year under consideration. There is no dispute that the total commission paid to three agents was in the order of Rs. 97,259. In the absence of further particulars, the Income-tax Officer estimated that 30 per cent. of the total sales would relate to the sales to the agents. On the basis thereof the number of machines sold to these three agents worked out to about 1,340 machines. The 'kickback commission' was accordingly estimated to Rs. 53,600, i.e., at Rs. 40 per machine. To this 4/5ths of commission paid to Sri Jagga Rao of Rs. 28,145 has been added. From the above, it is clear that the Income-tax Officer had some basis in estimating the 'kickback commission' received by the assessee at Rs. 76,116. The addition is accordingly, confirmed.
(3) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in restoring the assessee's appeal for the year 1962-63 with regard to the assessment of kickback commission to the file of the appellate Assistant Commissioner for fresh consideration especially when the assessment made for the year 1962-63 was a best judgment assessment under section 144 of the Income-tax Act and after considering all the materials available in the records ?"

10. We are not surprised by the revelations in the instant proceeding that the assessee who was importing certain raw materials/components for manufacturing typewriters indulged in over-invoicing the import and got a substantial sum of money stacked as deposit in the name of its managing director in a foreign bank. It received kickbacks from its agents and maintained under-account for it. It passed through the yearly exercise of submission of returns and assessments and even payment of tax until the Enforcement Directorate acted and discovered that it (assessee) had received contributions from its foreign suppliers on account of over-invoicing of the imports by way of deposits in a foreign bank and that it had developed a system of kickbacks from its agents as a method of keeping a regular inflow of concealed income for which it never cared to account. What has surprised us, however, in the instant case, is the way the Appellate Commissioner has ignored the defiance of the assessee that in spite of the repeated notices and letters it never appeared before the Income-tax Officer with any information or material in response to the notice under section 148 of the Income-tax Act and the letters sent to it in this behalf.