ITO 24(1)(3), MUMBAI V. BHARAT TANVI, MUMBAI

ITA 4773/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79395 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-07-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 19-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Non compliance; Onus to prove
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUM BAI . . , , BEFORE SHRI I. P. BANSAL, JM AND SHRI SANJAY ARORA , AM ./ I.T.A. NO. 4773/MUM/2012 ( / ASSESSMENT YEAR: 2008-09) ITO-24(1)(3), ROOM NO. 501, C-13, 5 TH FLOOR, PRATYAKSHAKAR BHAVAN, BKC, BANDRA (E), MUMBAI-400 051 / VS. BHARAT OMPRAKASH THANVI, E-101, 1 ST FLOOR, PANCHAVATI, RAHEJA TOWNSHIP, MALAD (E), MUMBAI-400 097 ./ ./PAN/GIR NO. AEJPT 1276 L ( /APPELLANT ) : ( !' / RESPONDENT ) # $ / APPELLANT BY : SHRI MAURYA PRATAP !' # $ / RESPONDENT BY : MS. AARTI VISANJI % &'( # )* / DATE OF HEARING : 09.07.2014 DATE OF ORDER : 16.07.2014 + / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE REVENUE DIRECTED AGAINST T HE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-34, MUMBAI (CIT(A) FOR SH ORT) DATED 29.05.2012, ALLOWING THE ASSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S .143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A. Y.) 2008-09 VIDE ORDER DATED 14.12.2010. 2. THE APPEAL RAISES TWO ISSUES, QUA TWO DISALLOWANCES EFFECTED IN ASSESSMENT, SINCE CONFIRMED. WE SHALL TAKE UP THE SAME IN SERIATIM. 2 ITA NO. 4773/MUM/2012 (A.Y. 2008-09) ITO VS. BHARAT OMPRAKASH THANVI 3. THE FIRST ISSUE IS IN RELATION TO THE ASSESSEES CLAIM TOWARD COMMISSION EXPENSES, MADE IN THE SUM OF RS.16,46,320/- . THE ASSESSEE RETURNED INCOME FOR THE YEAR AT RS.4,79,920/- ON A PROFESSIONAL RECEIPT OF RS.39.64 LACS, CLAIMING EXPENSES AT RS.34.66 LACS, OF WHICH RS.20.31 LACS WAS SHOWN AS PAYABLE A S AT THE YEAR-END. THE RECEIPT WAS CLAIMED AS BY WAY OF A TECHNICAL ADVISOR AND SUB-BR OKER, THOUGH THE NATURE OF THE BUSINESS OR ACTIVITY WAS NOT MENTIONED. IN VERIFICA TION OF THE CLAIM OF COMMISSION, NOTICES U/S. 133(6) OF THE ACT WERE SOUGHT TO BE SE NT TO EACH OF THE SIX PARTIES TO WHOM THE COMMISSION WAS CLAIMED AS PAYABLE. THE STATUS A ND THE RELEVANT DETAILS OF THE SAID PROCEEDINGS ARE AS UNDER: SR. NO. NAME AMOUNT REMARKS 1) SHRI SAVAL SINGH RS.4,43,575 RETURNED UNSERVED. 2) SHRI MAHESH VYAS RS.1,12,540 THE ASSESSEE DID NOT FURNISH ADDRESS. 3) SHRI JANARDHAN THANVI RS.1,38,755 DID NOT COMPLY WITH THE NOTICE. 4) SHRI R. K. THANVI RS.1,30,000 DID NOT COMPLY WITH THE NOTICE. 5) SHRI DILIP PUROHIT RS.1,21,450 RETURNED UNSERVED. 6) SHRI GAURAV THAKKAR RS.7,00,000 THE ASSESSEE DID NOT FURNISH ADDRESS. TOTAL RS.16,46,320 CONFIRMATIONS, HOWEVER, WERE FURNISHED BY THE ASSES SEE FROM ALL THE PAYEES TO WHOM THE PAYMENTS HAD BEEN MADE BY THEM, ALSO ADDUCING EVIDE NCE AS TO PAYMENT. HOWEVER, NO REASON FOR THE PAYMENT OF COMMISSION, OR THE NATURE OF THE SERVICES RENDERED, WAS STATED. ALSO, NO EVIDENCE IN REGARD THERETO WAS FURNISHED. UNDER THE CIRCUMSTANCES, THE EXPENSE CAME TO BE DISALLOWED. IN APPEAL, THE ASSESSEE FOUND FAVOUR WITH THE LD. C IT(A). THE TWO PARTIES, ON WHOM NOTICES COULD NOT BE SERVED, WAS ON ACCOUNT OF CHANGE OF THEIR ADDRESSES. THE OTHER PARTIES WHO HAD NOT RESPONDED TO THE NOTICES WERE ON ACCOUNT OF THEIR BEING OUT OF STATION. ALL THE CONFIRMATIONS HAD, IN ANY CASE, BE EN FURNISHED BEFORE THE ASSESSING OFFICER (A.O.) BEFORE THE COMPLETION OF THE ASSESSM ENT. ABSENCE OR FAILURE TO RESPOND TO 3 ITA NO. 4773/MUM/2012 (A.Y. 2008-09) ITO VS. BHARAT OMPRAKASH THANVI NOTICE U/S.133(6) WOULD NOT LEAD TO THE CONSEQUENCE OF DISALLOWANCE, EVEN AS HELD BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. GOODLASS NEROLAC PAINTS LTD. [1991] 188 ITR 1 (BOM). THE PAYMENTS HAD BEEN MADE BY CHEQUE. THERE WAS NOTHING TO SHOW THAT THE PAYMENT WAS BOGUS. THE DISALLOWANCE W AS ACCORDINGLY DELETED. AGGRIEVED, THE REVENUE IS IN APPEAL, RAISING THE FOLLOWING GRO UND: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE DISALLOWANCE OF COMMIS SION PAYMENT OF RS.16,46,320/- BY HOLDING THAT NON COMPLIANCE OF NO TICE U/S.133(6) CANNOT BE A GROUND FOR DISALLOWANCE, WHEN THE ASSESSEE HAS FAILED TO DISCHARGE HIS ONUS TO PUT FORTH EVIDENCES IN SUPPORT OF ITS CLAIM OF EXPENSES. 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 4.1 THE FIRST THING THAT STRIKES US IS THE EXTREMEL Y UNCOOPERATIVE, INDIFFERENT AND CAVALIER ATTITUDE OF THE ASSESSEE DURING THE ASSESS MENT PROCEEDINGS, INITIATED BY THE ISSUE OF NOTICE U/S.143(2) ON 18.08.2009, CONSTRAINING TH E A.O. TO FRAME THE ASSESSMENT ON THE BASIS OF THE DETAILS AND MATERIALS ON RECORD, AFTER GIVING A FINAL OPPORTUNITY TO THE ASSESSEE ON 29.10.2010 TO STATE ITS CASE, AS WELL AS SHOW CAUSE AS TO WHY THE ASSESSMENT MAY NOT BE COMPLETED THUS, I.E., ON THE BASIS OF SUCH (INCO MPLETE) DETAILS AND THE MATERIAL ON RECORD, AND WHICH AGAIN REMAINED UN-RESPONDED (REFE R PARAS 2, 3 OF THE ASSESSMENT ORDER). THERE IS NO EXPLANATION WHATSOEVER BY THE A SSESSEE BEFORE THE LD. CIT(A) FOR SUCH BEHAVIOR NOR ANY PRAYER FOR BEING ALLOWED OPPORTUNI TY TO FURNISH THE DETAILS CALLED FOR OR PRESENT ITS CASE BEFORE THE A.O. NOR ANY GRIEVANCE THAT PROPER OPPORTUNITY HAD NOT BEEN EXTENDED TO HIM BY THE A.O. UNDER THE CIRCUMSTANCES , IT WAS INCUMBENT ON THE LD. CIT(A) TO PROCEED TO DECIDE THE CASE ON THE BASIS O F THE MATERIAL BEFORE AND CONSIDERED BY THE A.O. NOT ONLY HE DOES HE NOT DO SO, HE PROC EEDS TO DECIDE THE APPEAL DE HORS THE A.O.S OBSERVATIONS, AND WITHOUT SEEKING HIS REMAND REPORT OR HIS COMMENTS ON THE ASSESSEES CASE AS MADE BEFORE HIM. 4.2 COMING TO THE FACTS OF THE CASE, THE ISSUE QUA THE IMPUGNED DISALLOWANCE THAT ARISES IS AS TO THE DISCHARGE OR OTHERWISE OF THE O NUS ON THE ASSESSEE TO EXHIBIT THE IMPUGNED EXPENDITURE AS HAVING BEEN INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF 4 ITA NO. 4773/MUM/2012 (A.Y. 2008-09) ITO VS. BHARAT OMPRAKASH THANVI ITS BUSINESS. TOWARD THIS, WE FIND THE ASSESSEE TO FAIL ABYSMALLY. HE HAS EVEN AS MUCH NOT AS SPECIFIED THE EXACT NATURE OF THE SERVICES RENDE RED, AND FROM WHICH HE DERIVES HIS PROFESSIONAL RECEIPT, AS WELL AS, CORRESPONDINGLY, THE SERVICES AVAILED OF, AND FOR WHICH HE HAD INCURRED COMMISSION EXPENDITURE. THE A.O. IS CA TEGORICAL IN HIS OBSERVATIONS IN THE MATTER (REFER PARAS 4, 5 OF THE ASSESSMENT ORDER). THERE IS, ACCORDINGLY, NO QUESTION OF ANY MATERIAL EVIDENCING THE SERVICES RENDERED OR AVAILE D IN RESPECT OF THE COMMISSION EXPENDITURE. THE POSITION CONTINUES TO OBTAIN BEFOR E THE FIRST APPELLATE AUTHORITY, AS WELL AS BEFORE US. THE ASSESSEE BEFORE THE LD. CIT(A) SU BMITS OF BEING A TECHNICAL ADVISOR IN THE CAPITAL MARKET, ENGAGED IN THE CONTINUOUS PROCE SS OF RESEARCH AND TECHNICAL ANALYSTS OF VARIOUS STOCKS AND SECURITIES, ON THE BASIS OF W HICH EXPERT ADVICE IS GIVEN TO THE CLIENTS. IT IS IN AND TOWARD THIS ACTIVITY THAT HE IS ASSISTED BY A TEAM OF TECHNICAL ANALYSIS, WHO ARE PAID COMMISSION. WHAT, WE WONDER, PREVENTED THE ASSESSEE FROM STATING SO BEFORE THE A.O.? THEN, AGAIN, WHAT IS THE EVIDENCE TO SUBSTANTIATE THE CONTENTION? WHO ARE THE ASSESSEES CLIENTS? WHAT, FOR EXAMPLE, ARE THE CREDENTIALS OF THE ASSESSEES TEAM MEMBERS, I.E., IN TERMS OF THEIR EDUCATIONAL AND PR OFESSIONAL QUALIFICATIONS? SURELY, THEY MUST BE IN THE FIELD FOR LONG OR AT LEAST FOR SOME TIME, TO BE REGARDED AS POSSESSING THE REQUISITE EXPERTISE. WE FIND NO ANSWERS TO THESE SU CH LIKE BASIC AND PRINCIPAL QUESTIONS ARISING OUT OF THE ASSESSEES CONDUCT AND EXPLANATI ON, NEITHER FROM THE MATERIAL ON RECORD NOR EVEN AFTER HEARING THE LD. AUTHORIZED REPRESENT ATIVE (AR). 4.3 THE ASSESSEES SOLE CASE BEFORE US WAS OF PAYME NT HAVING BEEN MADE, AND WHICH STANDS CONFIRMED BY THE PAYEES. PROOF OF PAYMENT DO ES NOT AMOUNT TO OR SUBSTITUTES FOR PAYMENT OF WORK DONE. RATHER, EVIDENCE AS TO SERVIC ES RENDERED, WHICH OUGHT TO BE APLENTY, CONSIDERING THAT THE SERVICES ARE STATED T O BEING AVAILED OF IN A CONTINUOUS, REGULAR MANNER, WOULD SUBSTANTIATE ACCRUAL OF EXPEN DITURE, SO THAT THE FACTUM OF PAYMENT IS RENDERED SECONDARY. THEN, AGAIN, THERE IS NO EXP LANATION FOR THE COMPLETE ABSENCE OF ANY MATERIAL TOWARD THE SAME. ON THE CONTRARY, WE O BSERVE THAT THE TWO NOTICES BY THE A.O., WHICH STOOD RESPONDED TO BY THE NOTICEES, I.E ., BY MAHENDRA VYAS AND JANARDHAN THANVI (PB PGS.8, 9), ARE NOT SIGNED BY THEM; THE S IGNATURES THEREON, PURPORTEDLY THEIRS, 5 ITA NO. 4773/MUM/2012 (A.Y. 2008-09) ITO VS. BHARAT OMPRAKASH THANVI ARE WHOLLY AND MATERIALLY DIFFERENT FROM THAT APPEA RING ON THEIR RESPECTIVE CONFIRMATIONS (PB PGS. 3, 4). IN FACT, JANARDHAN THANVI, CLEARLY STATES OF BEING IN THE BUSINESS OF COMMISSION AGENT (PB PG.4), WHICH IS IN COMPLETE CO NTRADISTINCTION TO WHAT THE ASSESSEES EXPLAINS (BEFORE THE FIRST APPELLATE AUT HORITY), IN RESPECT OF THE NATURE OF THE WORK FOR WHICH REMUNERATION, BY WAY OF COMMISSION, IS PAID. ALL THE CONFIRMATIONS - WHICH IS BY WAY OF ENDORSEMENT OF THE ENTRIES MADE IN RESPECT OF THE EXPENDITURE AND PAYMENT AS APPEARING IN THE ASSESSEES BOOKS, SAVE ONE, I.E., OF SAWAL SINGH (PB PG. 2), DO NOT BEAR THE SIGNATURE OF THE ASSESSEE ISSUING T HE STATEMENT OF ACCOUNT FOR THE CREDITORS/PAYEES CONFIRMATION, RENDERING THEM INV ALID. THE ASSESSEE STATES OF CHANGE OF ADDRESS IN CASE OF TWO PARTIES, IMPLYING THAT HE IS AWARE OF THE FACT OF CHANGE, EVEN THOUGH PERHAPS LATER, HAVING ALSO SECURED CONFIRMAT IONS FROM THE RELEVANT CREDITORS. HOWEVER, WE DO NOT OBSERVE FURNISHING OF THEIR CORR ECT ADDRESSES BY THE ASSESSEE EITHER BEFORE THE A.O. OR EVEN BEFORE THE LD. CIT(A). THE CLAIM OF THE CREDITORS BEING OUT OF STATION IS, AGAIN, A BALD CLAIM, AND NOT FOLLOWED B Y ANY SUBSEQUENT COMPLIANCE. 4.4 WE HAVE ALREADY EMPHASIZED THE COMPLETE ABSENCE OF ANY MATERIAL BROUGHT ON RECORD, DESPITE ABUNDANT OPPORTUNITY, AT ANY STAGE OF THE PROCEEDINGS, AS TO, BOTH, THE NATURE OF THE SERVICES OR THEIR BEING ACTUALLY REND ERED. THIS, IN FACT, AS SHALL BE SEEN, IS PRECISELY THE REVENUES CASE, AS PROJECTED PER ITS SOLE GROUND OF APPEAL. THE LAW IN THE MATTER IS TRITE, AND THE ONUS TO ESTABLISH THE EXPE NDITURE AS INCURRED FOR THE PURPOSES OF BUSINESS/PROFESSION IS SQUARELY ON THE ASSESSEE, AN D WHICH IS UNDER THE CIRCUMSTANCES TOTALLY UNPROVED. FURTHER, EVEN AS THE LAW IN THE M ATTER IS WELL SETTLED, REFERENCE IN THIS REGARD IS MADE TO THE DECISIONS BY THE HONBLE APEX COURT IN LACHMINARAYAN MADAN LAL VS. CIT [1972] 86 ITR 439 (SC); LAKSHMIRATAN COTTON MILLS CO. LTD. VS. CIT [1969] 73 ITR 634 (SC). THE LD. CIT(A), IN BASING HIS DECISION ON THE INCOM PLETE ENQUIRY BY THE A.O. U/S.133, HAS MISLED HIMSELF. IT IS ONLY AFTER THE A SSESSEE HAS DISCHARGED THE INITIAL ONUS ON HIM TO ESTABLISH THE NATURE OF THE EXPENDITURE AND ITS NEXUS WITH THE ASSESSEES TRADE, THAT THE VERIFICATION BY THE A.O., OR THE FINDINGS THERE BY WHICH IS A GIVEN CASE MAY BE 6 ITA NO. 4773/MUM/2012 (A.Y. 2008-09) ITO VS. BHARAT OMPRAKASH THANVI MATERIAL, SHALL ASSUME SIGNIFICANCE. THE INCHOATE N ATURE OF THE VERIFICATION PROCESS IN THE PRESENT CASE WOULD, THEREFORE, BE OF NO MOMENT, AND IT WOULD BE WHOLLY INCORRECT TO SAY THAT THE DISALLOWANCE STOOD EFFECTED FOR THAT REASO N. RELIANCE ON THE DECISION IN THE CASE OF GOODLASS NEROLAC PAINTS LTD. (SUPRA), WHICH LAYS DOWN THE WELL SETTLED LAW, BY HIM WOULD ALSO BE OF NO ASSISTANCE IN-AS-MUCH AS IT HAS NO APPLICATION IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THERE COULD, FOR EXAMPLE , BE A CASE WHERE THE PAYEE DENIES HAVING RENDERED THE SERVICES OR OF RECEIPT OF PAYME NT ASCRIBED TO HIM, FURNISHING HIS BANK STATEMENT IN SUPPORT. THE ONUS IN SUCH A CASE WOULD SHIFT RIGHT BACK TO THE ASSESSEE. THE MATTER, IT MAY BE APPRECIATED, IS WHOLLY FACTUAL, A ND STANDS TO BE DECIDED, IN THE FINAL ANALYSIS, ON THE ASSESSEE HAVING, OR NOT SO, DISCHA RGED THE BURDEN OF PROOF ON IT, WHICH WE HAVE IN THE INSTANT CASE FOUND AS NOT IN FACT, TO ANY EXTENT; RATHER, ITS GENUINENESS BEING IN SERIOUS DOUBT. 4.5 UNDER THE CIRCUMSTANCES, WE, IN VIEW OF THE FOR EGOING, HAVE NO HESITATION IN VACATING THE FINDINGS BY THE LD. CIT(A), DIRECT RES TORATION OF THE DISALLOWANCE UNDER REFERENCE. WE DECIDE ACCORDINGLY. 5. THE SECOND, AND THE ONLY OTHER GROUND OF APPEAL, IS WITH REGARD TO THE DISALLOWANCE OF THE ASSESSEES CLAIM FOR EXPENDITUR E ON REPAIRS AND MAINTENANCE, AT RS.3,65,756/ -, SINCE DELETED BY THE LD. CIT(A). THE BASIS OF THE DISALLOWANCE BY THE A.O. WAS THE F AILURE OF THE ASSESSEE TO FURNISH THE VOUCHERS, RECEIPTS, ETC., OR OTHERWISE EVIDENCE THE NATURE OF THE REPAIRS. THE ASSESSEES BUSINESS PREMISES IS RENTED, SO THAT IT WAS EVEN OT HERWISE NOT CLEAR AS TO ON WHOM, I.E., THE TENANT OR THE LANDLORD, THE BURDEN OR OBLIGATIO N FOR REPAIRS, LAY. THE ENTIRE AMOUNT WAS PAYABLE AS AT THE YEAR-END, I.E., 31.03.2008. IN AP PEAL, THE ASSESSEES EXPLANATION WAS THAT THE PREMISES HAD BEEN TAKEN ON RENT ABOUT FIVE YEAR S AGO IN A SHABBY CONDITION, AND WHEREAT THE ASSESSEE HAD AGREED TO UNDERTAKE THE RE PAIRS. ACCORDINGLY, THE REPAIR WORK WAS CONTRACTED TO M/S. TECHNICAL ASPECT, WHO STOOD PAID BY CHEQUE ON 27.09.2008 , AND HAD CONFIRMED THE PAYMENT. THE ASSESSEE WAS FOLLOWI NG MERCANTILE METHOD OF ACCOUNTING, SO THAT NON-PAYMENT DURING THE COURSE O F A RELEVANT YEAR ITSELF WOULD NOT BE 7 ITA NO. 4773/MUM/2012 (A.Y. 2008-09) ITO VS. BHARAT OMPRAKASH THANVI AN IMPEDIMENT TO DEDUCTION. THE SAME STOOD ALLOWED BY THE LD. CIT(A) ON THAT BASIS. AGGRIEVED, THE REVENUE IS IN APPEAL, RAISING THE FO LLOWING GROUND: 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE DISALLOWANCE OF EXPENS ES ON REPAIRS AND MAINTENANCES OF RS.3,65,756/- BY ADDUCING THAT THE EXPENDITURE INCURRED ON THE BUSINESS PREMISES WAS FOR THE PURPOSE OF BUSINE SS, WHEREAS THE ASSESSEE IS CONDUCTING BUSINESS ON RENTED PREMISES AND ALSO FAILED TO PROVIDE DETAILS OF REPAIRS ON THE SAID RENTED BUSINESS PREMISES. 6. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 6.1 WE ARE COMPLETELY UNABLE TO APPRECIATE THE ASSE SSEES CASE WHICH HAS SINCE FOUND FAVOUR WITH THE LD. CIT(A). HE SAYS THAT THE A.O. H AS NOT DOUBTED THE GENUINENESS OF THE EXPENDITURE. HOW, WE WONDER, IS DOUBT, THEN, EXPRESSED ? AGAIN, WHAT IS THE BASIS OF THE NON-SATISFACTION OR, AS THE CASE MAY BE, SATISFACTI ON OF THE A.O. AND THE LD. CIT(A) RESPECTIVELY. THE SATISFACTION OR OTHERWISE WITH TH E GENUINENESS OF THE EXPENDITURE, IT MAY BE NOTED, IS DERIVED ON THE BASIS OF THE MATERI ALS AND OF COURSE - THE SURROUNDING CIRCUMSTANCES. IN THE INSTANT CASE, THE ENTIRE CASE IS BUILT ON BALD ASSERTIONS AND DE HORS ANY MATERIAL ON RECORD, AND STANDS ACCEPTED ON THE BASIS OF THE SURMISES. WHAT IS THERE TO SHOW THAT ANY REPAIRS TO THE ASSESSEES BUSINESS PR EMISES HAD INDEED BEEN UNDERTAKEN? WHAT IS THERE TO SHOW THAT THE REPAIRS HAD BEEN UND ERTAKEN DURING THE RELEVANT YEAR ITSELF? WHAT IS THERE TO SHOW THAT THE ASSESSEE WAS OBLIGED UNDER THE AGREEMENT TO UNDERTAKE THE REPAIRS? RATHER, GENERALLY THE TENANTS ARE OBLIGED TO KEEP THE RENTED PREMISES IN A STATE OF GOOD REPAIRS, I.E., IN THE SAME, USABLE STATE IN WH ICH THE DELIVERY OF POSSESSION WAS MADE TO THEM, WHILE IN THE INSTANT CASE, ADMITTEDLY, EXT ENSIVE REPAIRS HAD BEEN CARRIED OUT? WHEN IS THE RENT AGREEMENT EXPIRING? THIS IS AS NOB ODY WOULD UNDERTAKE REPAIRS ON THIS SCALE TOWARD THE FAG OR NEAR END OF THE TENANCY. TH ERE IS NOTHING TO SHOW THAT THE PREMISES WERE, AS CLAIMED, IN A SHABBY CONDITION, W HEN RENTED. ON THE CONTRARY, THE FACT THAT THE ASSESSEE ESTABLISHED HIS BUSINESS PREMISES THEREIN, COMMENCED WORK WITHOUT UNDERTAKING THE REPAIRS, AND CONTINUED TO DO SO FOR FIVE YEARS, ITSELF, IF AT ALL, DISPROVES THE CLAIM OF IT BEING IN A SHABBY CONDITION WHEN LET. T HE LD. AR WOULD ONLY EMPHASIZE ON THE SUBSEQUENT PAYMENT; IN FACT, THE LONG TIME LAG FOR PAYMENT THE REPAIRS OSTENSIBLY 8 ITA NO. 4773/MUM/2012 (A.Y. 2008-09) ITO VS. BHARAT OMPRAKASH THANVI HAVING BEEN UNDERTAKEN DURING THE YEAR - ITSELF RAI SES DOUBTS ON THE GENUINENESS OF THE CLAIM. WE HAVE ALREADY NOTED THE ABSENCE OF THE BAS IC OR PRIMARY MATERIAL IN THE FORM OF BILL/S, VOUCHER/S, TO EVIDENCE THE REPAIR WORK; THE RENT DEED, ETC. THE EXPENDITURE REMAINS, CONSEQUENTLY, COMPLETELY UNPROVED. 6.2 WE, IN VIEW OF THE FOREGOING, HAVE NO HESITATIO N IN VACATING THE FINDINGS BY THE FIRST APPELLATE AUTHORITY AND HOLDING THAT THE EXPE NDITURE AS WHOLLY UNPROVED, AND RESTORE THE SAID DISALLOWANCE. WE DECIDE ACCORDINGLY. 7. IN THE RESULT, THE REVENUES APPEAL IS ALLOWED. ,-). ' # ' / ) # ) 01 ORDER PRONOUNCED IN THE OPEN COURT ON JULY 09, 2014 AT THE CONCLUSION OF THE HEARING. SD/- SD/- (I. P. BANSAL) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER % ( MUMBAI; 2& DATED : 16.07.2014 '.&../ ROSHANI , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT 3. % 3) ( ) / THE CIT(A) 4. % 3) / CIT - CONCERNED 5. 6'78 !)&9: , * 9:- , % ( / DR, ITAT, MUMBAI 6. 8;< =( / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , % ( / ITAT, MUMBAI