Smt. Pushpa Agarwal, Hyderabad V. ITO, Ward-10(2), Hyderabad

ITA 1342/HYD/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2618 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2017
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 06-04-2016
• Assessment Year: 2000-2001
• Appeal Filed On: 24-07-2014
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Assessee Lawyers: C P RAMASWAMI
• Keywords: Additional evidence; Onus to prove
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A, HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NO. ASST. YEAR APPELLANT RESPONDENT 1341/HYD/14 1999-2000 SMT. PUSHPA AGARWAL, SECUNDERABAD [PAN: ABQPA5666B] INCOME TAX OFFICER, WARD-10(2), HYDERABAD 1342/HYD/14 2000-01 FOR ASSESSEE : SHRI C.P. RAMASWAMI, AR FOR REVENUE : SMT. SUMAN MALIK, DR DATE OF HEARING : 06-04-2017 DATE OF PRONOUNCEMENT : 21-04-2017 O R D E R PER B. RAMAKOTAIAH, A.M. : THESE TWO ARE APPEALS BY ASSESSEE AGAINST THE ORDER O F THE COMMISSIONER OF INCOME TAX (APPEALS)-18, MUMBAI (CA MP AT HYDERABAD) VIDE ORDER DATED 25-03-2014. THE ISSUE IN BOTH THE YEARS IS WITH REFERENCE TO THE DISALLOWANCE OF COMMIS SION CLAIMED BY ASSESSEE TO AN EXTENT OF RS. 7,50,225/- FOR AY. 19 99-2000 AND RS. 43,81,262/- FOR AY. 2000-01. 2. THE ASSESSMENTS IN THIS CASE HAVE BEEN REOPENED U/ S. 148 OF THE INCOME TAX ACT [ACT] AFTER COMPLETION OF ASSESSMENT FOR AY. 2001-02, IN WHICH MAJOR INVESTIGATION AND THE ENQUIRI ES HAVE BEEN MADE BY THE DEPARTMENT WITH REFERENCE TO THE COMMISSIONS CLAIMED TO HAVE BEEN MADE ON THE PURCHASES/SALES MADE BY I.T.A. NOS. 1341 & 1342/HYD/2014 SMT. PUSHPA AGARWAL :- 2 - : ASSESSEE. ASSESSEE IS A PROPRIETOR OF STEEL TRADING C OMPANY IN THE NAME OF M/S. BASAI STEELS BEING MANAGED BY HER HUSBAND. ASSESSEE WHILE RETURNING AN INCOME OF RS. 1,99,770/ - FOR THE AY. 1999-2000 HAS CLAIMED COMMISSION TO AN EXTENT OF RS. 7,50,225/- IN THE YEAR. LIKE-WISE, ASSESSEE FILED RETURN OF IN COME FOR AY 2000- 01 OF RS. 3,73,405/- WHILE CLAIMING THE COMMISSION O F RS. 43,81,262/- DURING THE YEAR. ASSESSING OFFICER (AO) FOLLOWING THE FINDINGS IN AY. 2001-02 AND ALSO MAKING FURTHER ENQU IRIES TOWARDS CLAIM OF COMMISSION IN THESE YEARS DISALLOWED THE AM OUNTS MAINLY ON THE REASON THAT THE PURCHASERS OF STEEL HAVE STATED THAT THERE WERE NO DEALERS OR MIDDLE-MEN IN THE TRANSACTIONS AND SOME OF THE COMPANIES/FIRMS TO WHOM THE COMMISSION WAS CLAIMED TO HAVE BEEN PAID WERE NOT EXISTING. ONE OF THE COMPANIES M/ S. SATHAVAHANA STEELS (P) LTD., WAS ALSO ENQUIRED IN AY. 2001-02 AND BY GIVING REASONS AND RELYING ON THE DECISION OF LA XMIRATAN COTTON MILLS COMPANY [73 ITR 634] AND LAXMINARAYANA MADAN LAL [86 ITR 439]. AO DISALLOWED THE SAID COMMISSION. 3. AT THE OUTSET IT IS TO BE STATED THAT THE COMMISSION DISA LLOWED AFTER DUE ENQUIRY IN AY. 2001-02 HAS BEEN UPHELD BY THE ITAT AND ALSO BY THE HON'BLE HIGH COURT AND THE MATTER IS PENDIN G BEFORE THE HON'BLE SUPREME COURT BY WAY OF APPEAL BY ASSESSE E. 4. LD.CIT(A) AFTER GIVING OPPORTUNITY TO ASSESSEE HA S CONFIRMED THE ORDERS OF THE AO BY STATING AS UNDER: 2.2.3. I HAVE CONSIDERED THE SUBMISSIONS OF THE AP PELLANT, FACTS OF THE CASE AND ORDER OF THE A.O. CAREFULLY. IT IS NOTICE D THAT BOTH THE ASST. YEARS 1999-2000 AND 2000-01 WERE REOPENED BY ISSUING NOTI CE U/S.148 BY RECORDING REASONS ON THE BASIS OF ASST. YEAR 2001-0 2 IN CASE OF THE APPELLANT WHERE THE CLAIM OF COMMISSION PAID WAS HE LD AS BOGUS WHICH I.T.A. NOS. 1341 & 1342/HYD/2014 SMT. PUSHPA AGARWAL :- 3 - : WAS CONFIRMED BY THE CIT(A), THE ITAT AND THE HON'B LE HIGH COURT OF ANDHRA PRADESH. THE MODUS OPERANDI OF THE ASSESSEE FOR CLAIMING PAYMENT OF COMMISSION IN BOTH THE YEARS WAS THE SAM E AS IN ASST. YEAR 2001-02 AND MOREOVER THE COMMISSION AGENTS TO WHOM COMMISSION WAS SHOWN AS PAID WERE THE SAME PERSONS. DURING THE ASS ESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS MADE ENQUIRI ES AND OBSERVED THAT THE PARTY TO WHOM COMMISSION HAS BEEN PAID IN THE A SST. YEAR 1999-2000 HAS ALREADY LEFT THE PREMISES FOUR TO FIVE YEARS BA CK AND THE ASSESSEE HAS NOT SUBMITTED ANY CONFIRMATION AND THE SERVICES REN DERED BY THAT PARTY FOR THE PAYMENT OF COMMISSION. IN THE ASST. YEAR 20 00-01 ONE PARTY, M/S. P. J. SHAH & CO. WAS NOT EXISTING AT THE GIVEN ADDR ESS AND IN THE CASE OF M/S. ABHISHEK STEELS LIMITED A SIMPLE LETTER WITH A DETAILS OF COMMISSION PAID WAS FILED WITHOUT ANY MENTION REGARDING THE SE RVICES RENDERED BY THIS PARTY. IN VIEW OF THE FACTS AND CIRCUMSTANCES AND ON THE BASIS OF THE ASST. YEAR 2001-02, THE A.O. HAS DISALLOWED THE COM MISSION PAID IN BOTH THE YEARS AND ADDED BACK TO TAXABLE INCOME. DURING THE APPELLATE PROCEEDINGS, THE A.R. OF THE APPELLANT HAS SUBMITTE D AN AFFIDAVIT OF SHRI GOPAL AGARWAL, DATED 15.6.2012. IN THIS AFFIDAVIT, SRI GOPAL AGARWAL HAS MENTIONED THAT HE WAS THE DIRECTOR OF M/S.ABHISHEK TRANSTEL LIMITED, FORMERLY M/S.ABHISHEK STEELS LIMITED. SINCE LAST TH IRTY YEARS AND HE WAS FULLY FAMILIAR WITH THE TRANSACTIONS WHICH WERE CAR RIED OUT WITH HIS PROFESSIONAL HELP FOR THE IMPROVEMENT OF THE BUSINE SS OF M/S.BASAI STEELS, A PROPRIETARY CONCERN OF SMT. PUSHPA AGARWAL, THE A SSESSEE DURING THE FINANCIAL YEAR 1999-2000. IT WAS ALSO MENTIONED THA T THE ASSESSEE HAS REQUESTED TO HIM TO GET CUSTOMERS FOR THE SALE OF T HEIR PRODUCTS AND FOR THE SAID SERVICES THEY AGREED TO PAY COMMISSION RANGING FROM 2 TO 5 PER CENT DEPENDING ON THE DEAL PROCURED AND THE COMMISSION W AS PAID THROUGH CHEQUE AMOUNTING TO RS.41,54,384. MY PREDECESSOR HA S SENT BACK THIS ADDITIONAL EVIDENCE TO THE A.O. FOR EXAMINATION AND REPORT. THE A.O. VIDE LETTER DATED 05.02.2014 HAS SUBMITTED THE REMAND RE PORT, THE GIST OF WHICH IS REPRODUCED AS UNDER: (REMAND REPORT NOT EXTRACTED) .. FROM THE PERUSAL OF THE SUBMISSIONS AND REMAND REPO RT OF THE A.O., IT IS OBSERVED THAT THE FACTS AND CIRCUMSTANCES RELATING TO THE COMMISSION PAYMENTS TO THE COMMISSION AGENTS IS THE SAME AS IN THE ASST. YEAR 2001- 02, WHICH IS DECIDED BY THE HON'BLE ITAT AND THE HO N'BLE HIGH COURT OF ANDHRA PRADESH AGAINST THE ASSESSEE. THE DISTINGUI SHING FEATURE IS ONLY THAT THE A.R. OF THE APPELLANT HAS SUBMITTED AN AFF IDAVIT DT. 15.6.2012 FROM SRI GOPAL AGARWAL, THE DIRECTOR OF M/S.ABHISHE K STEELS LIMITED, WHO HAS MENTIONED THAT THE ASSESSEE HAS MADE REQUEST TO HIM FOR GETTING CUSTOMERS FOR SALE OF THE PRODUCTS AND HE WILL RECE IVE COMMISSION @ 2 TO 5 PER CENT. HOWEVER, NO DOCUMENTARY EVIDENCE HAS BEEN SUBMITTED TO PROVE I.T.A. NOS. 1341 & 1342/HYD/2014 SMT. PUSHPA AGARWAL :- 4 - : WHAT SERVICES HE HAS RENDERED AND HOW HE HAS CONTAC TED THE, WHETHER THERE WAS ANY WRITTEN AGREEMENT WITH THE ASSESSEE F OR THE PAYMENT OF COMMISSION, ETC. THEREFORE, THERE IS NO SANCTITY OF THE AFFIDAVIT IN THE EYES OF LAW TO PROVE THE GENUINENESS OF COMMISSION PAYME NT OR FOR RENDERING ANY SERVICES FOR PAYMENT OF COMMISSION. HOWEVER, TH E COPY OF THIS AFFIDAVIT WAS SENT TO THE A.O. FOR EXAMINATION AND REPORT. THE REPORT OF THE A.O. HAS ALSO BEEN CALLED FOR ON THIS ISSUE, WHO HA S MENTIONED THAT AS PER THE ACCOUNTS OF THE COMPANY, M/S.ABHISHEK STEELS LI MITED, THERE WAS A CREDIT OF RS.37 LAKHS ON ACCOUNT OF COMMISSION RECE IVED BUT AS PER THE DETAILS FILED ALONG WITH THE AFFIDAVIT OF 53 PARTIE S THE TOTAL RECEIPT HAS BEEN SHOWN AT RS,41,54,384, WHICH SHOWS THAT THIS AFFIDA VIT WAS NOTHING EXCEPT A CONCOCTED STORY PREPARED AFTER THOUGHT. TH E A.O. HAS ALSO MENTIONED THAT THE INFORMATION FURNISHED IN THE AFF IDAVIT IS MERELY A SELF- SERVING RECITALS AND NOT / AMENABLE FOR CROSS-VERIF ICATION. THE NAMES OF 53 PARTIES DO NOT BEAR THE FULL ADDRESS OR THE PAN NUM BER. THE NATURE OF SERVICES RENDERED HAVE NOT BEEN GIVEN. NO CONFIRMAT IONS FROM THESE 53 PARTIES WERE SUBMITTED. TO STRENGTHEN THIS VIEW REL IANCE IS ALSO PLACED ON THE DECISION OF HON'BLE COURTS IN THE CASE OF ACIT VS. M/S.BRIJVHASI HIGH TECH UDYOG LIMITED (SUPRA), LAXMIRATAN COTTON MILLS CO. VS. CIT (SUPRA), CIT VS. MC.DOWELL & COMPANY LIMITED AND IN THE CASE OF SCHNEIDER ELECTRIC INDIA LIMITED VS. CIT (SUPRA), WHERE IT IS CLEARLY HELD THAT COMMISSION PAYMENT CANNOT BE ALLOWED UNLESS IT IS P ROVED TO BE PAID FOR COMMERCIAL CONSIDERATION AND EXPENDED WHOLLY AND EX CLUSIVELY FOR BUSINESS PURPOSES. IN THE REMAND REPORT, THE A.O. H AS DISCUSSED THE CONTENTS OF THE AFFIDAVIT AT GREAT LENGTH AND FINAL LY HELD THAT THIS IS ONLY AFTER THOUGHT STORY AND THERE IS NO SUBSTANCE IN TH IS AFFIDAVIT. I FULLY AGREE WITH THE DECISION OF THE A.O. THAT THIS AFFIDAVIT I S NOTHING EXCEPT TO CREATE A CONFUSION IN THE FACTS OF THE CASE. SINCE THE FACTS OF THE PRESENT CASE FOR BOTH THE YEARS ARE THE SAME THAT THE ASSESSEE HAS F AILED TO PRODUCE ANY EVIDENCE REGARDING THE RENDERING OF SERVICES BY THE COMMISSION AGENTS, THEREFORE, THE ORDER OF THE HON'BLE ITAT DECIDED IN THE CASE OF THE APPELLANT FOR ASST. YEAR 2001-02 AGAINST THE ASSESS EE AND FURTHER UPHELD BY THE HON'BLE HIGH COURT OF ANDHRA PRADESH IS BIND ING ON THE LOWER AUTHORITIES. THE HON'BLE ITAT HAS DECIDED THIS ISSU E IN THE CASE OF THE APPELLANT FOR THE ASST. YEAR 2001-02 AND DISMISSED THE APPEAL OF THE ASSESSEE BY DISCUSSING THE FACTS OF THE CASE AT GRE AT LENGTH. THIS ORDER OF THE TRIBUNAL WAS UPHELD BY THE HON'BL E HIGH COURT OF ANDHRA PRADESH BY HOLDING THAT IT IS A QUESTION OF FACT AND NO LEGAL ISSUES IS INVOLVED; HENCE DISMISSED. SINCE THE FACTS OF TH E PRESENT CASE FOR BOTH THE ASST. YEARS ARE SQUARELY COVERED BY THE DECISIO NS OF JURISDICTIONAL ITAT AND THE HIGH COURT, THEREFORE, RESPECTFULLY FOLLOWI NG THE DECISION FOR ASST. YEAR 2001-02 THE GROUNDS RAISED BY THE APPELLANT AR E DISMISSED. 4.1. LD. COUNSEL WHILE FAIRLY ADMITTING THAT ISSUES I N AY. 2001-02 HAVE BEEN HELD AGAINST ASSESSEE, HOWEVER, SUBMITTED TH AT THE FACTS I.T.A. NOS. 1341 & 1342/HYD/2014 SMT. PUSHPA AGARWAL :- 5 - : IN THIS YEAR ARE DIFFERENT AND AO IN THE REMAND REPO RT HAS WRONGLY TAKEN THE DIRECTOR OF ONE OF THE COMPANIES AS HUSBAND O F ASSESSEE AS THE NAMES ARE COMMON. IT WAS SUBMITTED THAT ASSESSEE HAS GENUINELY PAID THE AMOUNT AND THE EXPENDITURE WAS NEC ESSARY FOR THE PURPOSE OF THE BUSINESS. HE RELIED ON THE CASE LA W WHICH WAS RELIED ON BY HIM EARLIER FOR AY. 2001-02. 5. LD.DR, HOWEVER, SUBMITTED THAT LD.CIT(A) HAS ANALYS ED THE ISSUES AND HAS CORRECTLY HELD THAT THE SERVICES ARE NO T BEEN PROVED AND ACCORDINGLY THE DISALLOWANCE IS WARRANTED. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERU SED THE ORDERS. LD.CIT(A) HAS GIVEN A FACTUAL FINDING THAT F ACTS ARE SIMILAR IN THE IMPUGNED ASSESSMENT YEARS TO THE FACTS IN AY. 20 01-02 EXCEPT THAT ASSESSEE HAD FILED SOME AFFIDAVITS OF THOSE PARTIES CONFIRMING THE RECEIPT OF AMOUNTS. HOWEVER, SINCE NO DOCUMENTARY EVIDENCE HAS BEEN SUBMITTED TO PROVE WHAT SERVICES HAVE BEEN RENDERED, LD.CIT(A) REJECTED THE AFFIDAVITS STATING THE RE IS NO SANCTITY IN THE EYE OF LAW. AO IN THE REMAND REPORT RELIED ON THE ENQUIRIES MADE WITH REFERENCE TO AY. 2001-02 AND ALSO SOME OF THE ENQUIRIES MADE FOR THE IMPUGNED ASSESSMENT YEARS IN W HICH THE ITI COULD NOT LOCATE THE SAID COMPANIES TO WHOM COMMIS SION WAS PAID. 7. THE ITAT IN AY. 2001-02 IN ITA NO. 110/HYD/2005 HAS HELD AS UNDER: '9. WE HAVE HEARD RIVAL CONTENTIONS. ON A CAREFUL C ONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT ALL THE PURCHASERS OF STEEL FROM BASAI STEELS HAVE CATEGORICALLY STATED THAT TH EY HAD PURCHASED STEEL DIRECTLY FROM THE ASSESSEE BY PLACING ORDERS VERBAL LY ON TELEPHONE. IT IS I.T.A. NOS. 1341 & 1342/HYD/2014 SMT. PUSHPA AGARWAL :- 6 - : ALSO AN UNDISPUTED FACT THAT ALL THESE PURCHASERS A RE LONG STANDING CUSTOMERS OF THE ASSESSEE. NONE OF THESE PURCHASER S KNOW ANY PUBLIC LIMITED COMPANIES WHICH THE ASSESSEE CLAIMS ARE MID DLEMEN, FOR SUPPLY ING STEEL. FOR READY REFERENCE, WE EXACT THE FOLLOW ING FROM PAGE 8 OF THE ASSESSMENT ORDER: NAME OF THE PURCHASER OUTCOME OF THE ENQUIRY 1. M/S PUZZOLANA MACHINERY SRI ANANTH PAI, PARTNER OF M/S FABRICATORS (HYDERABAD) PUZZOLANA MACHINERY FABRIC ATORS (HYD) CONFIRMED TO HAVE PLACED ORDERS FOR PURCHASE OF STEEL VERBALLY OVER PHONE WITH BASAI STEELS. HE ALSO STATED THAT NO MIDDLE MAN WERE INVOLVED. HE DENIED HAVING EVER USED M/S PIONEER TOR STEEL AND ALLAYS (P) LTD; AND M/S SATHAVAHANA STEELS (P) LTD, AS MIDDLE MAN FOR PURCHASES WITH M/S BASAI STEELS. SIMILAR ARE THE FINDINGS WITH REGARD TO OTHER PURCH ASERS, AT PAGES 9, 10 AND 11 OF THE ASSESSMENT ORDER. 10. WHEN THE ORDERS WERE BEING PLACED VERBALLY AND OVER TELEPHONE AND WHEN THE ASSESSEE HAD BEEN RESPONDING TO SUCH ORDER S AND SUPPLYING THE MATERIAL TO THE CUSTOMERS, IT IS INCOMPREHENSIBLE T HAT THERE WERE CERTAIN MIDDLEMEN TO WHOM COMMISSION WAS PAID. NO DOUBT, H ON'BLE SUPREME COURT, IN THE CASE OF SASOON J. DAVID (SUPRA), HAS HELD THAT THE EXPRESSION WHOLLY AND EXCLUSIVELY DOES NOT MEAN NECESSARILY FOR THE PURPOSE OF BUSINESS. THE QUESTION HERE IS WHETHER THE PAYMENT IN QUESTION WAS INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. BASED ON THE EVIDENCE IN QUESTION, WE DO NOT THINK SO. THE ASSES SEE'S CLAIM THAT SHE HAD INCURRED THIS EXPENDITURE FOR THE PURPOSES OF B USINESS IS NOT SUPPORTED BY THE FACTS ON RECORD. IT IS WELL SETTLE D THAT THE BURDEN OF PROOF IS ON THE ASSESSEE. THE CHANGING STAND TAKEN BY THE ASSESSEE HAS BEEN BROUGHT OUT BY THE FIRST APPELLATE AUTHORITY. INITI ALLY THE ASSESSEE PUT UP AN EDIFICE OF CARTEL BEING FORMED AND THESE PAYMENT S BEING LINKED TO THE SAME. SUBSEQUENTLY, THE ARGUMENT WAS THAT AN AMOUNT OFRS.33.4 LAKHS WAS PAID TO THE CARTEL TO OUTBID THE RECIPIENTS OF THE COMMISSION TO PARTICIPATE IN THE SAME ORDER OR TO COMPLETE WITH T HE ASSESSEE, WHEN THE FACT WAS THAT ORDERS WERE BEING PLACED TELEPHONICAL LY AND VERBALLY BY THE CUSTOMERS OF THE ASSESSEE. WHITE WE AGREE WITH THE CONTENTION THAT THE NAME AND EXISTENCE OF THE COMMISSION AGENTS NEED NO T NECESSARILY BE IN THE KNOWLEDGE OF THE CUSTOMER FOR REASONS OF COMMER CIAL EXPEDIENCY AND BUSINESS PRUDENCE, IT CANNOT BE UNDERSTOOD BOW A MI DDLEMAN IS NECESSITATED IN DEALING WITH OLD CUSTOMERS WHO ARE CONSISTENTLY BUYING I.T.A. NOS. 1341 & 1342/HYD/2014 SMT. PUSHPA AGARWAL :- 7 - : STEEL FROM THE ASSESSEE BY PLACING PURCHASE ORDERS OVER TELEPHONE. THE LEARNED CIT (A), AT PARAGRAPH 5(A) ON PAGES 7, 8 AN D 9 OF HIS ORDER, DEALT WITH THIS MATTER AT LENGTH AND WE UPHOLD THE REASON S RECORDED THEREIN. 11. THE LETTERS AND STATEMENTS FROM ALL THE BUYERS WERE SUPPLIED TO THE ASSESSEE ON 6.1.2004 AND THE ASSESSEE HAD NEVER SOU GHT FOR CROSS EXAMINATION OF THESE PERSONS. WITH THIS FACTUAL BAC KGROUND, THE ASSESSEE'S PLEA THAT THE PRINCIPLES OF NATURAL JUST ICE ARE VIOLATED; IS WITHOUT ANY MERIT. THE LEARNED CIT (A) HAS RIGHTLY RELIED ON THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF LAXMIRA TAN COTTON MILLS CO., 73 ITR 634, TO HOLD THAT THE BURDEN IS ON THE ASSES SEE TO PROVE THAT SERVICES WERE RENDERED BY THE COMMISSION AGENTS. FU RTHER, HE HAS RIGHTLY RELIED ON THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF LAXMINARAYAN MADANLAL, 86 ITR 439, WHEREIN IT WAS H ELD, THAT MERE EXISTENCE OF AGREEMENTS AND PAYMENTS OF CERTAIN AMO UNTS DOES NOT BIND THE ASSESSING OFFICER TO HOLD THE PAYMENTS AS GENUI NE OR MADE WHOLLY AND EXCLUSIVELY FOR BUSINESS PURPOSES. THUS, THE FINDIN GS OF THE CIT (A) THAT THE ASSESSEE COULD NOT DISCHARGE THE ONUS THAT LAY ON HER AND COULD NOT PROVE THAT THE EXPENDITURE HAD BEEN INCURRED FOR TH E PURPOSES OF BUSINESS, SPECIFICALLY IN VIEW OF THE CONTRARY FACTS BROUGHT OUT BY THE AO THROUGH INVESTIGATION, HAVE TO BE UPHELD. 12. COMING TO THE RELIANCE PLACED BY THE LEARNED CO UNSEL FOR THE ASSESSEE ON THE CASE OF RUBBER PLAST CO. (SUPRA), WE FIND TH AT THE FACTS OF THE CASE ARE ENTIRELY DIFFERENT. IN THAT CASE, THERE WAS NO CONTRADICTION FROM THE BUYERS AS IN THIS CASE. IT WAS NOT A CASE WHERE THE BUYER HAD SPECIFICALLY STATED THAT HE HAD PLACED ORDERS DIRECTLY OVER TELE PHONE, ETC. WE DO NOT AGREE WITH THE CONTENTION OF THE LEARNED COUNSEL FO R THE ASSESSEE THAT THE AFORESAID ORDER OF MUMBAI BENCH 'B' OF THE TRIBUNAL COVERS THE ISSUE IN QUESTION. AS REGARDS THE OTHER JUDGMENTS RELIED UPO N BY THE LEARNED COUNSEL FOR THE ASSESSEE, WE FIND THAT THE PROPOSIT IONS LAID DOWN IN THOSE JUDGMENTS DO NOT COME TO THE RESCUE OF THE ASSESSEE AS, IN THIS CASE, THE FACTUAL MATRIX SHOWS THAT THE PAYMENTS IN QUESTION WERE NOT INCURRED FOR THE PURPOSE OF PROCURING ORDERS FROM THE CUSTOMERS OF THE ASSESSEE OR FOR RENDERING ANY OTHER SERVICES, I.E., IN OTHER WORDS, FOR THE PURPOSE OF BUSINESS. 7.1. SINCE THE FACTS ARE SIMILAR, WE DO NOT SEE ANY RE ASON TO INTERFERE WITH THE ORDERS OF THE CIT(A). IN FACT ASSESSE E HAS NOT JUSTIFIED WHY SO MUCH COMMISSION WAS PAID WHEN ASSES SEES PROFITS ARE VERY LESS. IT CAN BE SEEN FROM THE P&L A/ C THAT ON A TURNOVER OF RS. 14.18 CRORES FOR THE YEAR ENDING 31- 03-1999, ASSESSEE EARNED A NET PROFIT OF RS. 2,27,893/- WHICH IS HARDLY I.T.A. NOS. 1341 & 1342/HYD/2014 SMT. PUSHPA AGARWAL :- 8 - : 0.16%, WHEREAS THE CLAIM OF COMMISSION VARIES FROM 5 TO 6% ON SOME TRANSACTIONS BUT TO AN EXTENT OF RS. 0.52% ON THE TU RNOVER. SIMILARLY, FOR ASSESSMENT YEAR ENDING ON 31-03-2000, THE PROFIT SHOWN ON A TURNOVER OF RS. 22.07 CRORES WAS MEAGRE R S. 3,85,404/- WHICH IS ABOUT 0.17%. HEREIN ALSO THE COM MISSION IS A HUGE AMOUNT BEING RS. 43,81,262/- WHICH IS ABOUT 1.98 % OF THE TURNOVER. ASSESSEE HAS NOT JUSTIFIED WHY HUGE COMMI SSION WAS PAID FOREGOING HER OWN PROFITS AND DECLARING VERY ME AGRE INCOMES ON HUGE TURNOVERS. CONSIDERING THE ORDERS OF THE CIT( A) IN THE IMPUGNED YEARS AND THE ORDER OF THE ITAT IN AY. 2001- 02 EXTRACTED ABOVE, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE O RDERS OF THE AUTHORITIES. 8. EVEN THOUGH ASSESSEE HAS RAISED GROUNDS ON REOPEN ING OF ASSESSMENT U/S. 148, THE SAME WAS NOT PRESSED IN THE CO URSE OF ARGUMENTS. ACCORDINGLY, THE GROUNDS TO THE EXTENT ARE DISMISSED AS WITHDRAWN. 9. IN THE RESULT, BOTH THE APPEALS OF ASSESSEE ARE DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST APRIL, 2017 SD/- SD/- (D. MANMOHAN) (B. RAMAKOTAIAH) VICE PRESIDENT ACCOUNTANT MEMB ER HYDERABAD, DATED 21 ST APRIL, 2017 TNMM I.T.A. NOS. 1341 & 1342/HYD/2014 SMT. PUSHPA AGARWAL :- 9 - : COPY TO : 1. SMT. PUSHPA AGARWAL, SECUNDERABAD. C/O. DR. C.P. RAMASWAMI, ADVOCATE, FLAT NOS. 102 & 303, GITANJALI APTS., PLOT NO. 108, SRINAGAR COLONY, HYDERABAD. 2. THE INCOME TAX OFFICER, WARD-10(2), HYDERABAD. 3. CIT (APPEALS)-18, MUMBAI. 4. CIT (APPEALS)-VI, HYDERABAD. 5. CIT-V, HYDERABAD. 6. D.R. ITAT, HYDERABAD. 7. GUARD FILE.