Asstt.Commissioner of Income Tax ,Circle-7, Nagpur V. Shri Viren Jayantilal Thakkar, Nagpur

ITA 174/NAG/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93373 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 25-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D RAVI KUMAR
• Assessee Lawyers: V V SARANJAME
• Keywords: Gift; Business expenditure; Notional interest
• Section: 143(3); 37(1)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NO.174/NAG/2013 ASSE SSMENT YEAR : 2009-10. ASSTT. COMMISSIONER OF INCOME-TAX, SHRI VIREN JAYANTILAL THAKKAR, CIRCLE-7, NAGPUR. V/S. 22/23, ADARSH NAGAR, WADI, NAGPUR. PAN AAVPT 7074J APPELLANT. RESPONDENT . C.O. NO.09/NAG/2013 (ARISI NG OUT OF ITA NO.174/NAG/2013) ASSESSMENT YEAR : 2009-10. SHRI VIREN JAYANTILAL THAKKAR, ASSTT. COMMISSIONER OF INCOME-TAX NAGPUR. V/S CIRCLE-7, NAGPUR. CROSS OBJECTOR. RESPONDENT. REVENUE BY : SHRI D. RAVI KUMAR. ASSESSEE BY : SH RI V.V. SARANJAME. DATE OF HEARING - 30-04-2015 DATE OF ORDER 8 TH MAY, 2015 O R D E R PER SHRI MUKUL K. SHRAWAT, J.M. THIS IS AN APPEAL FILED BY THE REVENUE AND A CROSS OBJECTION HAS BEEN FILED BY THE ASSESSEE ARISING FROM THE ORDER OF CIT(APPEA LS)-II, NAGPUR DATED 11-02- 2013. 2 2. GROUND NO. 1 READS AS UNDER : ON THE FACTS AND INS THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF ` .7,53,410/- MADE BY THE AO ON A/C OF GIFT ARTICLES LIKE GOLD COINS FOR WANTS OF COGENT EVIDENCE. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ORDER PASSED UNDER SECTION 143(3) DATED 30 TH OF NOVEMBER, 2011 ARE THAT THE ASSESSEE IN HIS INDIVIDUAL CAPACITY IS C & F AGENT OF VARIOUS COMPA NIES DEALING IN SEVERAL COMMODITIES. HE IS A PROPRIETOR OF M/S TUNIP TRADE LINES. IN RESPECT OF THIS GROUND, ASSESSING OFFICER HAS NOTED THAT THE ASSESS EE HAS CLAIMED AN EXPENDITURE UNDER THE HEAD GIFT ARTICLES AMOUNTING TO ` .7,53,410/-. IN COMPLIANCE OF A QUERY IT WAS INFORMED BY THE ASSESSEE THAT THE GIFT ARTICLES WERE IN RESPECT OF SALES PROMOTION WHICH WERE GIFTED TO PRINCIPALS D URING THEIR VISIT TO NAGPUR. THE GIFT ARTICLES WERE IN THE FORM OF MEMENTOS GIVEN TO THE PRINCIPALS TO MAINTAIN A GOOD BUSINESS RELATIONSHIP. THE ASSESSING OFFICER H AS FOUND THAT THE PAYMENTS WERE MADE TO THE JEWELERS TOWARDS PURCHASE OF GOLD C OINS WHICH ACCORDING TO HIM WAS NOT AN ADMISSIBLE BUSINESS EXPENDITURE, THE REFORE, DISALLOWED THE ENTIRE CLAIM. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APPEL LATE AUTHORITY, LEARNED CIT(APPEALS) HAS ALLOWED THE CLAIM IN THE FOLLOWING MANNER : I HAVE CONSIDERED THE FACTS OF THE CASE AND THE SUBMISSIONS OF THE APPELLANT. ENTERTAINING BUSINESS GUESTS AND BUSINE SS ASSOCIATES AND SENIOR MANAGERS OF CUSTOMER COMPANIES IS AN IMPORTANT PAR T AND PARCEL OF MODERN DAY BUSINESS. THIS INCLUDES TAKING OUT SUCH PERSONS TO UP-MARKET HOTELS FOR LUNCH AND DINNER AND GIVING GIFTS. KEEP ING THE CUSTOMERS AND THEIR TOP MANAGEMENT AND RELEVANT MANAGERS IN GOOD HUMOUR IS A PRESENT 3 DAY BUSINESS IMPERATIVE WHICH CANNOT BE TAKEN LIG HTLY. AO HAS NOT DOUBTED THE GENUINENESS OF THE EXPENDITURE INCU RRED BY THE APPELLANT. THE JUDGMENT IN THE CASE OF CIT VS. AVERY CYCLE IND S. LTD. (SUPRA) HAS ALSO BEEN PERUSED WHEREIN EXPENDITURE INCURRED ON GIVIN G GIFTGS SOF SILVER FOR DISTRIBUTION TO DEALERS AND FOREIGN VISITORS WAS A LLOWED AS BUSINESS EXPENDITURE. CONSIDERING THE FACTS IN ENTIRETY AND JUDICIAL PR ONOUNCEMENT CITED ABOVE, THE DISALLOWANCE OF ` .7,53,410/- IS HELD TO BE A BUSINESS EXPENDITURE ALLOWABLE U/S 37(1) AND HENCE THE ADDITION MADE I S DIRECTED TO BE DELETED. THIS GROUND IS THEREFORE ALLOWED. 3. FROM THE SIDE OF THE REVENUE, LEARNED D.R. MR.D. RAVI KUMAR, APPEARED AND ARGUED THAT THE PAYMENT TO JEWELER COULD BE FOR NON BUSINESS PURPOSES AND THE ELEMENT OF PERSONAL BENEFIT COULD NOT BE RULED OUT. ACCORDING TO HIM, GENERALLY IN SUCH CIRCUMSTANCES SOME PERCENTAGE OF GIFTED AMOUNT IS DISALLOWED ON THE GROUND OF PERSONAL USE/BENEFIT OF AN ASSESSE E. THEREFORE, HE HAS PLEADED THAT THE ENTIRE RELIEF WAS WRONGLY GRANTED BY THE L EARNED CIT(APPEALS) ON THE OTHER HAND, FROM THE SIDE OF THE ASSESSEE L EARNED A.R. MR. V.V. SARANJAME HAS ARGUED THAT THE ASSESSEE IS HAVING C & F AGENCY OF AROUND 22 COMPANIES AND DEALING IN SEVERAL ARTICLES AS PER TH E LIST FILED BEFORE US. THE COMPANIES ARE HIGHLY REPUTED COMPANIES AND THE ASSE SSEE BEING C & F AGENT IS REQUIRED TO MAINTAIN GOOD RELATIONSHIP WITH THOSE PRINCIPALS. HE HAS ALSO PLEADED THAT THIS IS NOT THE FIRST YEAR WHEN THE AR TICLES WERE GIFTED BUT IN THE PAST ALSO THE ASSESSEE HAS GIFTED THE ARTICLES AND THE C LAIM WAS ALLOWED. THE LEARNED A.R. HAS ALSO FILED BEFORE US A COMPARATIVE CHART D EMONSTRATING THE PERCENTAGE OF EXPENDITURE VIS--VIS GROSS RECEIPTS OF FEW PAST YE ARS WHICH WERE RANGING FROM .21% TO .38%. FOR THE YEAR UNDER CONSIDERATION THE PERCENTAGE WAS STATED TO BE .53%. LEARNED A.R. HAS PLACED RELIANCE ON CIT V/S. AVERY CYCLE INDUS. LTD. 298 ITR 4 39. LEARNED A.R. HAS ALSO INFORMED THAT EVEN FOR AS SESSMENT YEAR 2008-09 THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF I. T. ACT VIDE AN ORDER DATED 12 TH MAY, 2010 ACCORDING TO WHICH THE DECLARED INCOME O F ` .2,96,86,730/- WAS ACCEPTED WITHOUT ANY ADDITION. HE HAS FURTHER PLEA DED THAT DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS DECLARED A SUB STANTIAL INCOME OF ` .3,20,96,500/-. 4. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE ORD ERS OF THE AUTHORITIES BELOW IN THE LIGHT OF A SHORT COMPILATION FILED BEF ORE US. THE ADMITTED FACTUAL POSITION IS THAT THE ASSESSEE IS HAVING C & F AGENC Y OF MORE THAN 22 COMPANIES, NAMELY, FOR EXAMPLE, BRITANNIA INDUSTRIES, LARSEN & TOUBRO, ITC, BHARAT SHELL LTD., FUTURE LOGISTICS SOLUTIONS LTD., SANDOZ P. LTD. ETC . AND, THEREFORE, DEALING IN SEVERAL ITEMS RANGING FROM LUBRICANT, BISCUITS, SWI TCHES, EDIBLE OIL, CIGARETTES, PHARMACEUTICAL, TEA ETC. THIS IS ALSO AN ADMITTED F ACTUAL POSITION THAT IN THE PAST FOR ASSESSMENT 2006-07 AND FOR ASSESSMENT YEAR 2008 -09 THE ASSESSMENTS WERE MADE UNDER SECTION 143(3) RESPECTIVELY DATED 25-11- 2008 AND 12-05-2010 BUT NO SUCH DISALLOWANCE IN RESPECT OF THE EXPENDITURE TOW ARDS GIFT ARTICLES WAS MADE. THIS IS NOT THE CASE OF THE ASSESSING OFFICER THAT THE EXPENDITURE AS CLAIMED WAS NOT SUPPORTED BY BILLS/VOUCHERS. THE ONLY REASON AS SIGNED BY THE ASSESSING OFFICER WAS THAT SUCH EXPENDITURE WAS NOT ALLOWABLE UNDER ANY OF THE SECTIONS OF THE I.T. ACT. BUT THERE IS NO SPECIFIC MENTION ABOU T THE SPECIFIC PROVISION OF I.T. ACT UNDER WHICH HE HAS MADE IMPUGNED DISALLOWANCE. ON T HE OTHER HAND, ASSESSEES VEHEMENT CONTENTION WAS THAT THE IMPUGNED EXPENDITU RE WAS THE BUSINESS NECESSITY TO MAINTAIN THE GOOD RELATIONSHIP WITH TH E PRINCIPAL COMPANIES. ALTHOUGH THE ARTICLES WHICH WERE GIFTED COULD BE EX PENSIVE, BUT AS PER LEARNED A.R., THOSE WERE GIVEN AS A MEMENTO ON VISIT TO NAG PUR. WE, THEREFORE, HOLD THAT 5 CONSIDERING THE NATURE OF THE BUSINESS ACTIVITY OF THE ASSESSEE AS ALSO THE PAST HISTORY OF THE CASE, LEARNED CIT(APPEALS) HAS RIGH TLY REVERSED THE FINDING OF THE ASSESSING OFFICER WHO HAS INCIDENTLY NOT GIVEN ANY SINGLE GOOD REASON FOR MAKING THE IMPUGNED DISALLOWANCE. 5. RESULTANTLY THIS GROUND OF THE REVENUE IS DISMIS SED. 6. GROUND NO. 2 READS AS UNDER : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING ADDITION OF ` .4,58,333/- TOWARDS INTEREST EXPENDITURE INCURRED NOT FOR BUSINESS. FROM THE BALANCE-SHEET IT WAS FOUND BY THE ASSESSI NG OFFICER THAT AN AMOUNT OF ` . 1 CRORE WAS ADVANCED TO MR. VINAY N. AGRAWAL OUT OF THE BUSINESS FUNDS OF THE ASSESSEE. ACCORDING TO THE ASSESSING OFFICER, ON THE OTHER HAND, THE ASSESSEE HAD TAKEN LOANS TO THE EXTENT OF ` .2,13,47,095/- WHICH WERE BORROWED FUNDS ON INTEREST. THE EXPLANATION OF THE ASSESSEE, IN SHORT, WAS THAT THE SAID AMOUNT WAS ADVANCED TO MR. AGRAWAL TOWARDS PURCHAS E OF PLOT OF LAND AT WADI. HOWEVER, DUE TO CERTAIN PERSONAL PROBLEM, THE DECIS ION TO PURCHASE THE LAND WAS DROPPED BY THE ASSESSEE. BEFORE THE ASSESSING OFFIC ER THE ASSESSEE HAS FURNISHED A LETTER OF SHRI VINAY AGRAWAL WHEREIN HE HAS STATE D THAT NO INTEREST WAS PAID TO THE ASSESSEE AND IT WAS A TRANSACTION TOWARDS ADVAN CE FOR ACQUISITION OF LAND. THE ASSESSING OFFICER HAS FINALLY DISALLOWED THE PR OPORTIONATE INTEREST WHICH ACCORDING TO HIM SHOULD HAVE BEEN CHARGED FROM SHRI VINAY AGRAWAL ON THE LOAN ADVANCED TO HIM. ACCORDINGLY AN ADDITION OF ` .6,58,333/- WAS MADE. 7. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APP ELLATE AUTHORITY, LEARNED CIT(APPEALS) HAS HELD AS UNDER : 6 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CAS E AND SUBMISSIONS OF THE APPELLANT. THE SAID AMOUNT OF ` . 1 CRORE HAS BEEN ADVANBCED BY THE APPELLANT TO SHRI VINAY AGRAWAL FOR PURCHASE OF A PLOT OF LQND ADJACENT TO THE APPELLANTS BUSINESS PREMISES. IT IS EXPLAINED THAT BECAUSE OF THE CLOSE FRIENDLY RELATION NO AGREEMENT TO SELL WAS EXECUTE D. THE APPELLANT HAS DISCHARGED ITS ONUS BY FURNISHING TWO CONFIRMATION S FROM THE SAID SHRI VINAY AGRAWAL. ONE CONFIRMATION ACKNOWLEDGED THE R ECEIPT OF THE SAID AMOUNT AND ALSO STATES THAT NO INTEREST WAS PAID O N THE SAID AMOUNT. THE SECOND CONFIRMATION SPECIFIES THE PRECISE PROPERTY THAT WAS SOUGHT TO BE SOLD TO THE APPELLANT ALONG WITH PROOF REGARDING T HE EXISTENCE OF THE SPECIFIED PLOT ADMEASURING 1.41 HECTARES. THE BUSI NESS NEED FOR ADVANCING THE SAID MONEY HAS BEEN CLEARLY6 MADE OUT BY THE A PPELLANT AND NECESSARY EVIDENCE HAS BEEN FURNISHED. IF THE LD. AO STILL HAD ANY DOUBT ABOUT THE CLAIM OF THE APPELLANT, HE WAS FREE TO SUMMON AND EXAMINE SHRI VINAY AGRAWAL TO ASCERTAIN THE REASONS FOR THE ADVANCE S O AS TO DISPROVE THE CLAIM OF THE APPELLANT. THE LD. AO HAS CHOSEN NOT TO DO SO. THE BUSINESS PURPOSE OF THE ADVANCE IS CLEARLY MAD E OUT BY THE APPELLANT. THEREFORE, CONSIDERING THE TOTALITY OF CIRCUMSTANC ES, THE CHARGING OF NOTIONAL INTEREST ON THE SAID ADVANCES AMOUNTING T O ` .4,58,333/- DOES NOT ARISE AND THE SAME IS DIRECTED TO BE DELETED. THIS GROUND IS THEREFORE ALLOWED. 8. CHALLENGING THE RELIEF GIVEN BY LEARNED CIT(APPE ALS), LEARNED DR, MR. D. RAVI KUMAR APPEARED AND CONTESTED THAT IN THE ABSENCE OF ANY AGREEMENT IT WAS DIFFICULT TO BELIEVE THE STORY OF THE ASSESSEE THAT A HUGE AMOUNT OF ` .1 CRORE WAS ADVANCED TO ONE MR. VINAY AGRAWAL. RATHER ACCORDING TO LEARNED D.R., THE ASSESSEE HAS CHANGED THE STORY THAT IT WAS A BUSINE SS REQUIREMENT FOR WHICH THE AMOUNT IN QUESTION WAS ADVANCED, THAT TOO WITHOUT A NY CHARGE OF INTEREST. HE HAS PLEADED THAT THE REASON GIVEN BY LEARNED CIT(APPEAL S) THAT THE IMPUGNED ADVANCE WAS FOR THE BUSINESS PURPOSE WAS INCORRECT, HENCE DESERVES TO BE REVERSED. 7 9. FROM THE SIDE OF THE RESPONDENT-ASSESSEE, LEARNE D A.R. HAS SUPPORTED THE VIEW TAKEN BY THE LEARNED CIT(APPEALS) AND PLEADED THAT IN THE ABSENCE OF ANY AGREEMENT, THE ASSESSEE HAD NO OPTION BUT TO FURNIS H THE LETTERS OF THE SAID PERSON CONFIRMING THE AMOUNT OF ADVANCE RECEIVED BY HIM. HE HAS THEREFORE PLEADED THAT IN THE ABSENCE OF ANY CONTRARY MATERIA L AGAINST THE ASSESSEE, THE RELIEF GRANTED BY LEARNED CIT(APPEALS) SHOULD BE UP HELD. 10. WE HAVE HEARD BOTH THE SIDES AT SOME LENGTH. WE HAVE PERUSED THE MATERIAL PLACED BEFORE US IN THE LIGHT OF THE ORDER S OF THE REVENUE AUTHORITIES. THE ADMITTED FACTUAL POSITION IS THAT ON ONE HAND T HE ASSESSEE WAS HAVING BORROWED FUNDS TO THE TUNE OF ` .2,13,47,095/-. SIDE BY SIDE IT HAS ALSO NOT BEEN CONTROVERTED BEFORE US AGAINST THE FINDING OF THE ASSESSING OFFICER THAT OUT OF THE BUSINESS FUNDS OF THE ASSESSEE THE IMPUGNED AMOUNT OF ` .1 CRORE WAS GIVEN TO ONE MR. VINAY AGRAWAL. THEREFORE, IT IS NOT THE CAS E OF THE ASSESSEE THAT OUT OF THE NON INTEREST BEARING FUNDS THE SAID AMOUNT OF ` . 1 CRORE WAS ADVANCED TO MR. VINAY AGRAWAL. AS FAR AS THE REASON GIVEN BY THE ASSESSEE THAT TH E SAID AMOUNT WAS ADVANCED TOWARDS PURCHASE OF LAND WAS HAVING CERTAI N FALLACIES, NAMELY, THERE WAS NO WRITTEN AGREEMENT OR DOCUMENT IN FAVOUR OF THE ASSESSEE. WHEN IT WAS CONFRONTED BY THE ASSESSING OFFICER THE ASSESSEE HA S EXPRESSED HIS INABILITY TO PRODUCE ANY SUCH AGREEMENT TO THE ASSESSING OFFICER . THE ASSESSEE HAS ONLY STATED THAT DUE TO CERTAIN PERSONAL PROBLEM, THE TR ANSACTION WAS NOT FINALIZED AND THE ASSESSEE HAD DECLINED TO PURCHASE THE LAND. THE ASSESSING OFFICER WAS DOUBTING THE GENUINENESS OF THE TRANSACTION. IT WAS A DUTY OF THE ASSESSEE TO DISCHARGE THE ONUS BY PLACING ON RECORD OTHER CORRO BORATIVE EVIDENCE TO ESTABLISH 8 THAT THE LAND IN QUESTION WAS A BUSINESS REQUIREMEN T. AT ONE POINT OF TIME IT WAS CONVEYED THAT THE AMOUNT WAS PAID FOR PURCHASE OF LAND BUT ON ANOTHER OCCASIONS IT WAS EXPLAINED THAT THE AMOUNT IN QUEST ION WAS PAID BECAUSE THE LAND WAS REQUIRED FOR THE PURPOSE OF THE BUSINESS. ACCOR DING TO US, THERE WAS CHANGE IN THE STAND OF THE ASSESSEE, SPECIALLY WHEN THE CO RROBORATIVE EVIDENCES ARE LACKING. EVEN ON ENQUIRY BY THE BENCH DURING THE C OURSE OF HEARING IT WAS NOT CLARIFIED WHETHER THE IMPUGNED AMOUNT WAS REFUNDED BY MR. VINAY AGRAWAL TO THE ASSESSEE LATER ON. WE, THEREFORE, HOLD THAT THE REASON GIVEN BY THE LEARNED CIT(APPEALS) THAT THE ADVANCE WAS CLEARLY MADE BY T HE ASSESSEE FOR THE PURPOSE OF BUSINESS REMAINED UNSUBSTANTIATED. HENCE THE REL IEF WAS WRONGLY GRANTED. IN SUCH A SITUATION THE SAID FINDING OF LEARNED CIT(AP PEALS) IS HEREBY REVERSED AND THE OBJECTION RAISED BY THE REVENUE DEPARTMENT IS UP HELD. THE GROUND OF THE REVENUE IS ALLOWED AND THE ACTION OF THE ASSESSING OFFICER IS UPHELD. 11. GROUND NO. 3 READS AS UNDER : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING ADDITION OF ` .41,76,000/- TOWARDS COMMISSION PAYMENT WHICH WAS FOUND TO BE NOT GENUINE. AS PER THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS OBJECTED THE EXPENDITURE INCURRED ON COMMISSION AMOUNTING TO ` .41,77,000/-. THE ASSESSING OFFICER HAS OBJECTED THAT IN THE PAST THE EXPENDITUR E ON COMMISSION WAS NOT AS HIGH AS IN THE YEAR UNDER CONSIDERATION. THE PLEA O F THE ASSESSEE WAS THAT THE EXPENDITURE WAS NOT PURELY IN THE NATURE OF COMMISS ION BUT ACTUALLY IT WAS A PAYMENT IN LIEU OF SERVICES PROVIDED BY M/S TUNIP T RADE LINES. THE EXPLANATION OF THE ASSESSEE BEFORE THE ASSESSING OFFICER WAS AS UN DER : 9 THAT, AS REGARDS PAYMENT OF COMMISSION TO M/S T INUP TRADE LINES, IT IS EXPLAINED THAT THE MAN POWER AVAILABLE WITH M/S T INUP TRADE LINES IS TOTALLY UTILIZED BY THE ASSESSEE, AS AT PRESENT TH ERE IS NO BUSINESS IN THE CONCERN M/S TINUP TRADE LINES. DUE TO COMPLETE UTI LIZATION OF MAN POWER IN TUNIP TRADE LINES THE PAYMENT IS MADE TO THEM U NDER THE CAPTION COMMISSION. REGULAR T.D.S. HAD BEEN MADE AND PAID ACCORDING TO THE PROVISION OF SECTION 194II. AS THE EXPENDITURE IS FULLY INCURRED, EXCLUSIVELY FOR THE PURPOSES OF THE BUSINESS OF THE ASSESSEE, THE CLAIM OF PAYMENT OF COMMISSION, IS ALLOWABLE AS BUSINESS EXPENDITURE. HOWEVER, THE ASSESSING OFFICER WAS NOT CONVINCED A ND IN THE ABSENCE OF ANY AGREEMENT FOR PAYMENT OF COMMISSION THE ASSESSI NG OFFICER HAS CONCLUDED THAT IT WAS A NON-GENUINE EXPENDITURE. 12. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST AP PELLATE AUTHORITY, AN EXPLANATION WAS OFFERED THAT EXPERT AND SKILLED MAN POWER WAS PROVIDED TO HANDLE THE CARGO ETC, HENCE THE COMMISSION PAYMENT WAS MADE. AFTER CONSIDERING THE EVIDENCES AND THE FACTUAL POSITION MAINLY THE TURNOVER OF THE ASSESSEE, LEARNED CIT(APPEALS) HAS HELD THAT THE EX PENDITURE WAS GENUINE AND ALLOWED THE SAME. 13. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MA TERIAL PLACED BEFORE US. THE MAIN OBJECTION OF THE ASSESSING OFFICER WAS THAT THERE WAS NO AGREEMENT IN WRITING SUPPORTING THE PAYMENT OF COMMISSION, RESU LTANTLY HE HAS DISALLOWED THE SAME. OTHERWISE THERE IS NOTHING ON RECORD TO DEMON STRATE THAT THE PAYMENT OF COMMISSION WAS NOT GENUINE. RATHER THE ASSESSEE HA S PLACED CERTAIN EVIDENCES SUPPORTING THE REASON FOR PAYMENT OF COMMISSION AND ON THAT BASIS STRONGLY PLEADED THAT THE GENUINENESS OF THE PAYMENT AS WELL AS THE NECESSITY OF THE PAYMENT SHOULD NOT HAVE BEEN DOUBTED. AN ANOTHER IM PORTANT FACT WAS MENTIONED THAT THE SAID PAYMENT OF COMMISSION WAS SUBJECTED TO TDS. THE 10 ASSESSEE HAD REGULARLY DEDUCTED TDS ON PAYMENT OF C OMMISSION AND INFORMED THIS FACT TO THE ASSESSING OFFICER AS WELL. THEREFO RE, UNDER THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND NO FALLACY I N THE DECISION OF THE LEARNED CIT(APPEALS) WHILE DECIDING THIS GROUND. HENCE THE SAME IS HEREBY APPROVED AND THIS GROUND OF THE REVENUE IS DISMISSED. 14. FROM THE SIDE OF THE RESPONDENT-ASSESSEE, A CRO SS OBJECTION HAS BEEN FILED RAISING FEW GROUNDS BUT ALL ARE IN SUPPORT OF THE V IEW TAKEN BY LEARNED CIT(APPEALS). THROUGH THIS CROSS OBJECTION, THE RESP ONDENT-ASSESSEE HAS PLEADED THAT THE LEARNED CIT(APPEALS) WAS JUSTIFIED IN GRANT ING RELIEF. IN THE ABSENCE OF ANY SPECIFIC LEGAL OR FACTUAL ISSUE RAISED IN THE GROU NDS OF CROSS OBJECTION, WE FIND NO LEGAL REQUIREMENT TO ADJUDICATE THE SAME. HENCE DISM ISSED. 15. IN THE RESULT, THE REVENUES APPEAL IS PARTLY A LLOWED AND THE CROSS OBJECTION OF THE ASSESSEE IS HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH MAY, 2015. SD/- SD/- (SHAMIM YAHYA) (MUKUL K. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER. NAGPUR, DATED: 8 TH MAY, 2015. 11 COPY OF ORDER FORWARDED TO : 1. THE ASSESSEE. 2. REVENUE. 3. THE CIT(A) 4. THE CIT, NAGPUR. 5. THE D.R., ITAT, NAGPUR. 6. GUARD FILE. T RUE COPY. BY ORDER ASSISTAN T REGISTRAR, ITAT, NAGPUR WAKODE