ACIT, New Delhi V. Sh. Rajiv Kalia, New Delhi

ITA 4503/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3921 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 27-04-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 26-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BANITA DEVI NAREON
• Assessee Lawyers: A K CHADHA
• Keywords: Business income; Salary income; Additional evidence; TDS
• Section: 64

Judgement Text

ITA NO. 4503/DEL/2009 A.Y. 2006-07 1 IN THE INCOMETAX APPELATE TRIBUNAL DELHI BENCH F: NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER & SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 4503/DEL/2009 A.Y. : 2006-07 ASSTT. COMMISSIONER OF INCOME TAX, VS. SH. RAJIV KALIA, 23(1), ROOM NO. 190, E-77, EKTA APARTMENT, C.R. BLDG., IP ESTATE, SAKET, NEW DELHI NEW DELHI [PAN NO. AASPK9225F] (APPELLANT) (RESPONDENT) ASSESSEE BY : SMT. A.K. CHADHA, CA DEPARTMENT BY : SHRI BANITA DEVI NAREON, SR. DR O R D E R PER SHAMIM YAHYA : AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDERS OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 24.9.200 9 AND PERTAINS TO ASSESSMENT YEAR 2006-07. 2. THE ISSUE RAISED IS THAT LD. COMMISSIONER OF IN COME TAX (APPEALS) ERRED IN DIRECTING THE ASSESSING OFFICER TO TREAT RECEIP TS AS BUSINESS INCOME AS AGAINST THE TREATMENT GIVEN BY THE ASSESSING OFFICE R AS SALARY INCOME. 3. IN THIS CASE RETURN OF INCOME WAS FILED BY THE A SSESSEE ON 30.10.2006 DECLARING AN INCOME OF RS. 25,15,115/-. THE CASE WA S SELECTED FOR SCRUTINY. THE ASSESSING OFFICER OBSERVED THAT ASSESSEE HAS SHOWE D BUSINESS INCOME TO THE TUNE OF RS. 2273529/- AND HAD SHOWN THE BUSINESS OF COMPUTER TRAINING AND MAINTENANCE. FROM THE DETAILS FURNISHED IN RESPECT OF THE RECEIPTS IT WAS OBSERVED THAT ASSESSEE WAS WORKING ONLY FOR BHARTI YA VIDYA BHAVAN. FROM THE PERUSAL OF AGREEMENT ASSESSING OFFICER OPINED THAT THERE EXISTS AN ITA NO. 4503/DEL/2009 A.Y. 2006-07 2 EMPLOYER-EMPLOYEE RELATIONSHIP BETWEEN BHARTIYA VID YA BHAVAN AND THE ASSESSEE. 3.1 THE ASSESSEE EXPLAINED THAT ASSESSEE HAD 21 CON TRACTS IN WHICH THERE WAS LEGAL OBLIGATION TO SET UP AND RUN THE COMPUTER CENTRE AND INCURRED EXPENDITURE ON COURSES/ADMINISTRATION AND ANOTHER CONTRACTUAL JOBS. ASSESSEE RECEIVED COMPOSITE PAYMENT FOR THE SAME. EVEN THE LOSS OF EDUCATION ON CONTRACT WAS TO BE BORNE BY THE ASSESS EE AND NOT BY THE BHAVAN. IT WAS FURTHER EXPLAINED THAT THE ASSESSEE INCURRED RS. 81 LACS ON SUBORDINATE STAFF AND OUTSIDE PROFESSIONAL AND INCURRED ADMINIS TRATIVE EXPENSES FOR RUNNING AND ADMINISTRATION OF THE CENTRES. NO SUPE RVISION, DIRECTION AND CONTROL ON DAY TO DAY ACTUAL EXECUTION OF THE CONTR ACT AND NO APPROVAL OF THE BHAVAN FOR EXECUTION WAS NEEDED. ASSESSEE SELECTE D, EMPLOYED AND DISTRIBUTED THE STUDY MATERIAL TO THE STUDENTS. AS SESSING OFFICER DID NOT ACCEPT THE ABOVE CONTENTIONS. HE HELD THAT THE R ECEIPT OF THE ASSESSEE SHOULD BE TREATED AS SALARY AS EMPLOYER AND EMPLOYEE RELAT IONSHIP CLEARLY EXISTED. HE CONCLUDED AS UNDER:- THUS, IN VIEW OF ALL THE FACTS AND CIRCUMSTANCES O F THE CASE, WHICH HAVE BEEN DISCUSSED AT LENGTH, THE RECEIPTS OF ASSESSEE ARE HEREBY TREATED AS SALARY AS THE EMPLOYER-EMPLOYEE RELATIONSHIP IS C LEARLY ESTABLISHED. ASSESSEE HAS ALREADY SHOWN HIS RECEIPTS WITHOUT CON SIDERING THE REIMBURSEMENT OF EXPENSES INCURRED ON ACCOUNT OF C OMPUTER SCREENING; CONDUCTING EXAM; BOOKS AND MAGAZINES; ELECTRICITY B ILLS; TELEPHONE BILLS; COMPUTER STATIONERY BILLS; ETC. HOWEVER, AS MENTIO NED ABOVE, ASSESSEE IS LIABLE TO KEEP AN AVERAGE OF THREE JUNIOR INSTRUCTO RS AND ONE SENIOR INSTRUCTOR AT EACH CENTRE AND THE PAYMENT RECEIVED BY THE ASSESSEE IS INCLUSIVE OF PAYMENT OF THESE INSTRUCTORS. THUS, EX PENSES ON BEHALF OF THESE INSTRUCTORS MUST BE ALLOWED AS SPECIFICALLY PROVIDED IN THE CONTRACT AND TO THIS EXTENT SALARY OF THE ASSESSEE SHALL BE TREATED AS BEING REIMBURSEMENT OF THESE EXPENSES. THUS, THE RECEIPTS OF RS. 1,18,18,681/- ITA NO. 4503/DEL/2009 A.Y. 2006-07 3 IS HEREBY TREATED AS SALARY INCOME, WITH A DEDUCT ION ON ACCOUNT OF SALARIES PAID TO INSTRUCTORS (IN HIS SUBMISSIONS, A SSESSEE HAS SHOWN PAYMENT TO 193 JUNIOR INSTRUCTORS AND 20 SENIOR INS TRUCTORS. HOWEVER, JUNIOR INSTRUCTORS ARE AT AN AVERAGE OF 3 AT EACH C ENTRE AND THERE IS 1 SENIOR INSTRUCTOR AT EACH CENTRE. MOREOVER, FROM TH E CONTRACTS, IT IS CLEAR THAT THESE INSTRUCTORS SHALL BE FOR THE FULL DAY OF 12 HOURS WORKING. EVEN THOUGH ASSESSEE IS BEING PAID AN ADDITIONAL RS. 500 0 PER MONTH IN CASE THE STAFF CONTINUES FOR MORE THAN A YEAR, SUCH ADDI TION IS NOT BEING INCLUDED IN INCOME). 4. BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEA LS) IT WAS EXPLAINED THAT THE ASSESSEE WAS A CONTRACTOR CARRYING ON THE BUSINESS OF SETTING UP, RUNNING AND ADMINISTERING THE COMPUTER TRAINING CEN TRES IN 19 CITIES IN INDIA. THE ASSESSEE HAS ENTERED INTO SEVERAL CONTRACTS W ITH BHARITYA VIDYA BHAVAN FOR CONDUCT OF COMPUTER TRAINING COURSES AND RUNNIN G OF COMPUTER TRAINING CENTRES. THE ASSESSEE ALSO FILED VARIOUS SUBMISSI ONS AND ALSO FILED PETITION UNDER RULE 46A. THESE WERE SENT TO THE ASSESSING O FFICER AND REMAND REPORT WAS OBTAINED. THE ASSESSING OFFICER HAD OBJECTED TO THE ADDITIONAL EVIDENCES BEING FILED BY THE ASSESSEE. LD. COMMISSIONER OF I NCOME TAX (APPEALS) FOUND THAT ADDITIONAL EVIDENCE WAS ADMISSIBLE. 5. LD. COMMISSIONER OF INCOME TAX (APPEALS) OBSERVE D THAT IN HIS LETTER NO. 64 DATED 8.6.2009 THAT ASSESSING OFFICER HAD BEEN DIRECTED TO MAKE THE ENQUIRIES WITH BHARIYA VIDYA BHAVAN. IN THE REMAND REPORT ASSESSING OFFICER HAD ENCLOSED A LETTER FROM BHARIYA VIDYA BHAVAN WHI CH WAS DATED 11.8.2009 AT POINT NO. (B), IT HAS BEEN STATED BY THEM TH AT BHARTIYA VIDYA BHAVAN, DELHI KENDRA HAS BEEN MAKING PAYMENTS FOR TRAINING CHARGES ON BEHALF OF BHARTIYA VIDYA BHAVANS GANDHI INSTITUTE, MUMBAI A ND THE SAME ARE BEING REIMBURSED BY THEM AND REFLECTED IN THE ACCOUNTS OF JMD INFORMATION TECHNOLOGIES MAINTAINED BY US. M/S JMD INFORMATION TECHNOLOGIES, NEW DELHI IS A CONTRACTOR AND WAS / TILL DATE NEVER AN EMPLOY EE OF BHAVANS CHANDHI ITA NO. 4503/DEL/2009 A.Y. 2006-07 4 INSTITUTES COMPUTER CENTERS IN INDIA. FURTHER, TH EY ARE ALSO PROVIDING COMPUTER MAINTENANCE SERVICES AT BHAVANS DELHI KENDRA AND M EHTA VIDALAYA. COPIES OF AGREEMENTS AND BILLS ARE ENCLOSED. 5.1 FROM THE ABOVE, LD. COMMISSIONER OF INCOME TAX (APPEALS) CONCLUDED THAT IT WAS CLEAR THAT BHARITYA VIDYA BHAVAN HAD C ONFIRMED THAT ASSESSEE WAS NOT AN EMPLOYEE OF THEIRS. LD. COMMISSIONER OF INC OME TAX (APPEALS) FURTHER OBSERVED THAT BE THAT AS IT MAY, IT IS IMPORTANT TO SEE THE SUBST ANCE OF THE TRANSACTIONS TO ASCERTAIN THE RELATIONSHIP BETWEEN BHARTIYA VIDYA BHAVAN AND THE ASSESSEE. SEVERAL AGREEMENTS, OF DIFFERENT DATE S HAD BEEN FILED BETWEEN THE ASSESSEE AND BHARTIYA VIDYA BHAVAN. ON A PERUSAL OF THE SAME, IT APPEARS THAT M/S JMD INFORMATION TECHNOLOGIES (HENCEFORTH JMD) W AS FACILITATING THE COURSE OF COMPUTERS FOR THE STUDENTS OF THE INSTITUTE. IT IS FURTHER CLEAR THAT JMD WAS TO ENSURE MINIMUM QUALIFIED INSTRUCTRORS TO BE POSTED FOR IMPARTING THE TRAINING. BHARITYA VIDYA BHAVAN WERE NOT TO EMPLOY THE SAID INSTRUCTORS. THEY WERE TO BE EMPLOYED BY THE ASSESSEE. THE ROLE OF BHARTIYA VI DYA BHAVAN WAS TO ONLY ENSURE THAT THE TRAINING WAS TO BE IMPARTED IN A CO NTROLLED ATMOSPHERE WHICH WOULD ENSURE QUALITY. IT IS CLEARLY WRITTEN THAT THE CONTRACT WAS EXTENDABLE AND IN CASE EITHER PARTY DESIRED TO DISCONTINUE WITH TH E SAME, ADVANCE NOTICE WAS TO BE GIVEN. IN RETURN, THE BHARTIYA VIDYA BHAVAN WAS TO GIVE A CONSOLIDATED AMOUNT TO THE ASSESSEE FOR HIS SERVICES. ALL THE CONTRACTS, WHICH HAVE BEEN PERUSED BY ME ARE ON THE SAME OR SIMILAR LINES. 5.2 LD. COMMISSIONER OF INCOME TAX (APPEALS) FURTHE R REFERRED TO THE FOLLOWING DECISION OF THE HONBLE APEX COURT:- - PIYARE LAL ADISHWAR LAL V. C.I.T. [1960] 40 ITR 17 (SC). - RAM PRASHAD V. C.I.T. [1972] 86 ITR 122 (SC). 5.3 REFERRING TO SECTIONS 15, 16 & 17 AND THE ABOVE DECISIONS OF THE HONBLE APEX COURT, LD. COMMISSIONER OF INCOME TAX (APPEALS ) HELD THAT DISTINCTION ITA NO. 4503/DEL/2009 A.Y. 2006-07 5 BETWEEN A SERVANT OR AN AGENT CAN BE SUMMARIZED AS UNDER:- (I) GENERALLY A MASTER CAN TELL HIS SERVANT WHAT T O DO AND HOW TO DO AND HOW TO DO IT; (II) GENERALLY A PRINCIPAL CANNOT TELL HIS AGENT HOW TO CARRY OUT HIS INSTRUCTIONS; (III) A SERVANT IS UNDER MORE COMPLETE CONTROL THA N AN AGENT; (IV) GENERALLY, A SERVANT IS A PERSON WHO NOT ONLY RECEIVES INSTRUCTIONS FROM HIS MASTER BUT IS SUBJECT TO HIS MASTERS RIGH T TO CONTROL INSTRUCTIONS BUT IS GENERALLY FREE TO CARRY OUT TH OSE INSTRUCTIONS ACCORDING TO HIS OWN DIRECTION; (V) GENERALLY A SERVANT QUA SERVANT HAS NO AUTHORIT Y TO MAKE CONTRACTS ON BEHALF OF HIS PRINCIPAL; (VI) GENERALLY AN AGENT IS PAID COMMISSION UPON AFF ECTING THE RESULT WHICH HE HAS BEEN INSTRUCTED BY HIS PRINCIPAL TO AC HIEVE; (VII) GENERALLY A SERVANT IS PAID WAGES OR SALARY. 5.4 LD. COMMISSIONER OF INCOME TAX (APPEALS) FURTHE R HELD AS UNDER:- PERUSAL OF THE AGREEMENTS WHICH HAVE BEEN PERUSE D BY ME, DOES NOT REFLECT THAT THE ASSESSEE IS IN TOTAL CONTROL OF BHARTIYA VIDYA BHAVAN. CONTRACTS REVEAL THAT THE RELATIONSHIP WAS PRINCIPAL TO PRINCIPAL. HE HAS THE FREEDOM TO EMPLOYEE THE INS TRUCTORS. ONLY THE MINIMUM QUALITY WAS AS PER THE PRESCRIPTION OF BHAR TIYA VIDYA BHAVAN WAS TO BE ENSURED. FURTHER, ALL LEGAL LIABI LITIES PERTAINING TO THE EMPLOYEES WERE TO BE MET BY THE ASSESSEE. THIS WAS CONDUCTED BY THE ASSESSEE IN A CONTROLLED ATMOSPHERE, WHICH ENSURED QUALITY. ASSUMING FOR A MOMENT, THAT BHARTIYA VIDYA BHAWAN W AS ITSELF IMPARTING TRAINING, ALL THE INSTRUCTORS WOULD HAVE BEEN THERE. THE ITA NO. 4503/DEL/2009 A.Y. 2006-07 6 SAID ENTITY WOULD HAVE HAD TO EVEN TAKE CARE OF THE LEGAL LIABILITIES, SUCH AS PROVIDENT FUND, GRATUITY ETC. OF THE INSTRU CTORS. IN THAT CASE IT WOULD NOT HAVE BEEN A PART OF THE CONTRACT ALSO THAT THE ASSESSEE WAS LIABLE TO HAND OUT COPIES OF STUDY MATERIAL. TH E SAME WOULD HAVE BEEN GIVEN DIRECTLY BY THE BHAVAN. IN VIEW OF THE CONFIRMATION FILED BY THE BHARTIYA V IDYA BHAVAN AND THE CONTENTS OF THE CONTRACT(S), IT CANN OT BE CONCLUDED THAT THE ASSESSEE HAD A MASTER-SERVANT RELATIONSHIP WITH BHARTIYA VIDYA BHAVAN. TOO MUCH PREMIUM HAS BEEN GIVEN OF TH E USAGE OF WORD HONORARIUM AT ONE PLACE. IT IS A SETTLED LA W IN TAXATION THAT NOMENCLATURE IS NOT THE DECIDING FACTOR BUT THE SUBSTANCE OF THE TRANSACTION. IN ANY CASE, THE ISSUE OF HONORARIUM DOES NOT ARISE DURING THIS YEAR. 6. AGAINST THIS ORDER THE REVENUE IS IN APPEAL BEF ORE US. 7. WE HAVE HEARD BOTH THE COUNSELS AND PERUSED THE RECORDS. 8. ASSESSEE IS A PROPRIETOR OF JMD INFORMATION TECH NOLOGY, NEW DELHI. THE ASSESSEE HAS ENTERED INTO 21 CONTRACTS WITH BHA RTIYA VIDYA BHAVAN (HEREINAFTER CALLED BVB) FOR SETTING UP AND RUN NING COMPUTER CENTRES IN 19 CITIES ACROSS INDIA. ASSESSEE HAS RECEIVED AMOUN TS VARYING FROM CONTRACT TO CONTRACT FOR CONDUCTING THE TRAINING PROGRAMMES, AS PER THE COURSE MATERIAL. ASSESSEES PLEA IS THAT HE HAS RECEIVED A COMPOSITE PAYMENT IN RUNNING THE COMPUTER CENTRES AND INCURRED EXPENDITURE ON COURSE S/ADMINISTRATION AND OTHER JOBS. ASSESSEES CLAIM IS THAT SEPARATE HO NORARIUM WAS PAID TO THE ASSESSEE AS EFFORT TO EXPLORE NEW CENTRES. ASSESSE E INCURRED RS. 81 LACS ON SUBORDINATE STAFF AND OUTSIDE PROFESSIONALS. IT I NCURRED EXPENSES ON ADMINISTRATION OF RS. 3.79 LACS, AS PER OBLIGATION TO RUN THE ADMINISTRATION OF RUNNING THE CENTRES. HE ALSO INCURRED EXPENDITUR E ON HEAD OFFICE AND OTHER DIRECT EXPENSES OF RS. 18.87 LACS TO CARRYOUT THE C ONTRACTUAL JOBS. THE ITA NO. 4503/DEL/2009 A.Y. 2006-07 7 ASSESSEES CLAIM IS THAT ENTIRE SUPERVISION AND EX ECUTION OF THE JOB WAS DONE BY THE ASSESSEE. BHARTIYA VIDYA BHAVAN HAD NO C ONTROL OVER THE EMPLOYEES. ASSESSEE DID NOT NEED ANY APPROVAL FOR INCURRING EX PENDITURE IN THIS REGARD. 8.1 NOW ASSESSING OFFICER WAS OF THE OPINION THAT ASSESSEE HAD LEGAL OBLIGATION TO UNDERTAKE THE VARIOUS ASPECTS OF THE JOB INCLUDING SCREENING THE APPLICATION, PROPER APTITUDE TEST ETC. FOR THIS ASS ESSING OFFICER OBSERVED THAT ASSESSEE WAS EVEN REIMBURSED RS. 1 PER APPLICATION RECEIVED AND RS. 15/- PER CANDIDATE FOR CONDUCTING APTITUDE TEST. CERTAIN O THER EXPENSES LIKE COST OF BOOKS, MEGAZINES, TELEPHONE ETC. WERE REIMBURSED BY THE BVB. ASSESSING OFFICER WENT ON TO CONCLUDE THAT ASSESSEE WAS AN E MPLOYEE OF BVB AND WAS RECEIVING SALARY. HOWEVER, HE FURTHER OPINED THAT ASSESSEE WAS LIABLE TO KEEP AN AVERAGE OF 3 JUNIOR INSTRUCTORS AND ONE SENIOR I NSTRUCTOR AT EACH CENTRE AND THE PAYMENT RECEIVED BY THE ASSESSEE IS INCLUSIVE O F PAYMENT OF THESE INSTRUCTORS. HENCE, ASSESSING OFFICER PROCEEDED TO DISALLOW THE VARIOUS OTHER PAYMENTS TO JUNIOR INSTRUCTORS AND SENIOR INSTRUCTO R INCURRED BY THE ASSESSEE AND ALSO THE ADMINISTRATIVE EXPENSES. HERE WE FI ND THAT AS AGAINST THE TOTAL INCOME OF RS. 1,18,18,681/- ASSESSING OFFICER HAS ALLOWED PAYMENT TO 60 JUNIOR INSTRUCTORS (AVERAGE OF 3 CENTRES) AMOUNTING TO RS. 16,94,927/-; 20 SENIOR INSTRUCTORS (1 AT CENTRE) AMOUNTING TO RS. 1 845589/- AND HAS HELD THAT THE RESULTANT FIGURE WAS NET SALARY OF RS. 8274165/ - ASSESSABLE IN THE HANDS OF THE ASSESSEE. 8.2 HERE WE FIND THAT BVB HAS ALSO CATEGORICALLY S TATED THAT THE ASSESSEE IS NOT ITS EMPLOYEE. THE TDS CERTIFICATE IN THIS REG ARD ALSO TAKEN INTO THIS ITA NO. 4503/DEL/2009 A.Y. 2006-07 8 EFFECT. WHILE CONSIDERING THE ASSESSEES RECEI PT AS SALARY FROM BVB THE ASSESSING OFFICER IS ALSO PROCEEDING TO ALLOW THE PAYMENT TO 60 JUNIOR INSTRUCTORS AND 20 SENIOR INSTRUCTORS AND DISALLOWI NG THE OTHER EXPENSES CLAIMED BY THE ASSESSEE. THIS ACTION OF ASSESSING OFFICER IS QUITE CONTRADICTORY. HERE WE FIND THAT IT IS NOT THE CASE OF THE ASSESSI NG OFFICER THAT THE OTHER EXPENSES CLAIMED BY THE ASSESSEE ARE BOGUS. RATHE R IN HIS OPINION THESE EXPENSES WERE NOT REQUIRED. IN OUR CONSIDERED OP INION THE ASSESSING OFFICER IS TRYING TO TREAT THESE CONTRACTUAL RECEIPTS AS SA LARY ONLY FOR HIS ENDEAVOUR TO SIT INTO THE JUDGMENT AS TO HOW MUCH EXPENSE THAT A SSESSEE SHOULD INCUR FOR THE RECEIPTS IN THIS REGARD. THE TERMS OF THE CONT RACT AND THE VARIOUS ASPECTS HAVE ELABORATELY BEEN DEALT WITH LD. COMMISSIONER O F INCOME TAX (APPEALS) HE HAS GIVEN A CATEGORICALLY FINDING THAT THE ASSESSEE S RECEIPTS ARE BUSINESS INCOME AND THE EXPENSES ARE THUS ALLOWABLE. WE FIND OURSELVES IN FULL AGREEMENT TO THIS PROPOSITION. ASSESSEES RECEIPT IS A BUSINESS RECEIPT OUT OF CONTRACT. FOR EARNING THIS RECEIPT THE ASSESSEE HA S INCURRED VARIOUS EXPENDITURE. JUST BECAUSE A PART OF THE EXPENDITUR E IS BEING REIMBURSED TO THE ASSESSEE THIS FACT WILL NOT RENDER OTHER EXPENSES I NCURRED TO EARN THE SAID INCOME AS UNNECESSARY. MOREOVER REIMBURSEMENT OF C ERTAIN EXPENDITURE AND SUPPLY OF MATERIAL CANNOT IPSO-FACTOR RENDER A BUSI NESS CONTRACT INTO THAT OF SALARY CONTRACT. IN THIS REGARD, WE PLACE RELIANC E UPON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF CIT, BOMBAY VS. WALCHAND AND CO. PRIVAT E LTD. IN 65 ITR 381, WHEREIN IT WAS HELD THAT 'IN APPLYING THE TEST OF COMMERCIAL ITA NO. 4503/DEL/2009 A.Y. 2006-07 9 EXPEDIENCY FOR DETERMINING WHETHER AN EXPENDITURE WAS WHOLLY AND EXCLUSIVELY FOR BUSINESS, THE EXPENDITURE HAS TO BE ADJUDGED FROM THE POINT OF VIEW OF THE BUSINESSMAN AND NOT OF REVENUE'. 9. ACCORDINGLY, WE HOLD THAT ASSESSEES RECEIPTS AR E CONTRACTUAL BUSINESS RECEIPTS AND IN DISALLOWING THE PART OF THE EXPEND ITURE INCURRED TO EARN THE SAID INCOME BY HOLDING THAT ASSESSEE IS IN RECEIPT OF THE SALARY, THE ASSESSING OFFICER HAS ONLY TRIED TO SIT INTO THE SHOE OF THE BUSINESSMAN, WHICH IS NOT SUSTAINABLE. ACCORDINGLY, WE DO NOT FIND ANY ILLE GALITY OR INFIRMITY IN THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), HE NCE, WE UPHOLD THE SAME. 10. IN THE RESULT, THE REVENUES APPEAL IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 14/05/2010. SD/- SD/- [I.P. BANSAL) [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 14/05/ 2010 SRB COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES ITA NO. 4503/DEL/2009 A.Y. 2006-07 10