NISHA SYNTHETICS LTD, MUMBAI V. JTCIT SP. RG 34, MUMBAI

ITA 5549/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8674 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 05-12-2016
• Assessment Year: 1996-1997
• Appeal Filed On: 08-07-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V KRISHNAMOORTHY
• Assessee Lawyers: G S PIKALE
• Keywords: Recovery proceedings
• Section: 143(3); 37(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B BENCH BEFORE SHRI B.R.MITTAL(JUDICIAL MEMBER) AND SHRI B.R.JAIN (ACCOUNTANT MEMBER) ITA NO.5549/MUM/2010 ASSESSMENT YEAR: 1996-97 NISHA SYNTHETICS LTD., R.NO.208, EMCA HOUSE, 2 ND FLOOR, 289, SHAHID BHAGAT SINGH ROAD, FORT, MUMBAI PA NO.AAACN 1348 P JCIT, SPL. RANGE-34, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI. (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SHRI G.S.PIKALE RESPONDENT BY: SHRI V.KRISHNAMOORTHY DATE OF HEARING: 10.10.2012 DATE OF PRONOUNCEMENT: 12.10.2012 ORDER PER B.R.MITTAL, JM: THE ASSESSEE HAS FILED THIS APPEAL FOR ASSESSMENT Y EAR 1996-97 AGAINST ORDER DATED 5.4.2010 OF LD CIT(A) -5, MUMBAI ON FOLLOWIN G GROUNDS; 1. THAT THE HONBLE CIT(A) HAS ERRED IN LAW AND FA CTS OF THE CASE IN NOT APPRECIATING THAT THE DEALING WITH M/S. RADHIKA SYN THETICS LIMITED FETCHED THE COMPANY A PROFIT MARGIN OF RS.45,61,005 AND AFTER THE PAYMENT OF COMMISSION OF RS.35,86,519 TO M/S. SPECT RUM SYNTHETICS LTD (WHO INTRODUCED M/S. RADHIKA SYNTHETICS LIMITED TO THE COMPANY) THE COMPANY EARNED A NET PROFIT OF APPROXIMATING RS.10 LACS, THEREBY CIT(A) HAS ERRED IN NOT DIRECTING THE AO TO DELETE THE ADD ITIONS OF EXPENSES AMOUNTING TO RS.35,86,519 PAID TO M/S. SPECTRUM SYN THETICS PVT LTD., ON ACCOUNT OF SERVICES RENDERED TO THE CO IN DEALINGS WITH M/S. RADHIKA SYNTHETICS LIMITED. 2. THAT THE HONBLE CIT(A) HAS ERRED IN NOT DIRECTI NG THE AO TO ISSUE SUMMONS TO M/S. RADHIKA SYNTHETICS WHO WERE UNDER T HE PROCEEDINGS OF THE DEBT RECOVERY TRIBUNAL AND TO M/S. SPECTRUM SYN THETICS PVT LTD., IN WHOSE CASE THE COURT RECEIVER HAD BEEN APPOINTED, F OR CONFIRMATION OF ITA NO.5549/MUM/2010 ASSESSMENT YEAR: 1996-97 2 THE TRANSATIONS WITH THEM AND FOR NATURE OF SERVICE S RENDERED BY THE BROKER SPECTRUM SYNTHETICS PVT LTD. 3. THAT THE HONBLE CIT(A) HAS ERRED IN LAW AND FAC TS OF THE CASE IN NOT APPRECIATING THAT THE FACTS OF THE CASE THAT THERE IS NO SPECIAL RELATIONSHIP EXISTS BETWEEN THE APPELLANT COMPANY AND M/S. RADHI KA SYNTHETICS PVT LTD., AND HENCE THE PAYMENT OF COMMISSION TO SPECTR UM SYNTHETICS PVT LTD. FOR DEALINGS WITH M/S. RADHIKA SYNTHETICS PVT LTD., BEING GENUINE, ADDITIONS OF THE SAME SHOULD HAVE BEEN DELETED. 4. THAT THE HONBLE CIT(A) HAS ERRED IN LAW AND FAC TS OF THE CASE IN NOT DIRECTING THE LD AO TO DISALLOW ONLY THE AMOUNT OF AIR TICKETS EXPENDITURE INCURRED ON THE AIR TICKET OF WIFE OF THE EXECUTIVE WHO ACCOMPANIED HIM AND WHICH ITAT HAS ALREADY SET ASIDE VIDE ITS ORDER DATED 25.4.2006. 5) THAT THE HOBIE CIT (APPEALS) SHOULD HAVE DIREC TED THE LEARNED ASSESSING OFFICER TO PASS AN APPROPRIATE ORDER GIVI NG EFFECT TO THE ORDER OF HONBLE ITAT DATED 25.4.2006 AN ABOVE TERMS. 6) THAT THE BOTH HONBLE CIT(APPEALS) AND LEARNED A SSESSING OFFICER HAS FAILED TO APPRECIATE THE FACTS THAT THE ITAT ORDER DATED 25.4.2006 WAS RECEIVED BY ALL THE PARTIES CONCERNED INCLUDING THE CHIEF COMMISSIONER ON AND AROUND 8.5.2006. 7) THAT HONBLE CIT (APPEALS) AND THE LEARNED ASSES SING OFFICER HAS ERRED AN LAW AND FACTS OF THE CASE AN NOT APPRECIAT ING THAT THE DEPARTMENT HAD TIME TILL 31.3.2008 ONLY TO COMPLETE THE ABOVE ASSESSMENT AS PER PROVISION OF SECTION 153(2A) OF T HE INCOME TAX ACT 1961 WHICH HAD LONG BEEN ELAPSED AND HENCE TIME BAR RED. 8) THAT BOTH HONBLE CIT (APPEALS) AND THE LEARNED ASSESSING OFFICER ERRED IN LAW AND FACTS OF THE CASE IN NOT FOLLOWING THE PROVISIONS OF THE INCOME TAX ACT WHEREBY TO GIVE PROPER EFFECT TO THE LTATS ORDER DATED 25.4.2006 IN WHICH THE ENTIRE ADDITION RELATING TO AY. 1996-97 IN OUR CASE WAS SET ASIDE. 9) THAT THE CIT(A) AND AO ERRED IN ASSUMING JURISDI CTION WHICH WAS NOT PERMISSIBLE IN TERMS OF SECTION 153(2A) AND 153(3) OF THE I.T.ACT IN A TIME BARRED ASSESSMENT MATTER. 2. AT THE TIME OF HEARING, LD A.R. SUBMITTED THAT G ROUND NOS.4 TO 9 ARE NOT PRESSED FOR. IN VIEW OF ABOVE SUBMISSION OF LD A.R. GROUND NOS.4 TO 9 ARE REJECTED. 3. IN RESPECT OF GROUND NOS.1 TO 3, THE ONLY ISSUE INVOLVED AS TO WHETHER LD CIT(A) IS JUSTIFIED TO CONFIRM THE ACTION OF THE AO IN MAK ING THE ADDITION RELATING TO DEALINGS ITA NO.5549/MUM/2010 ASSESSMENT YEAR: 1996-97 3 WITH M/S. RADHIKA SYNTHETICS LTD., ON ACCOUNT OF W HICH ASSESSEE CLAIMED TO HAVE PAID BROKERAGE/COMMISSION OF RS.35,86,519 TO M/S. SPECTR UM SYNTHETICS PVT LTD. 4. THIS ISSUE IS ARISING PURSUANT TO ASSESSMENT ORD ER PASSED BY AO U/S.254 OF THE ACT ON 28.1.2009. 5. THE RELEVANT FACTS ARE THAT ASSESSEE CLAIMED TOW ARDS BROKERAGE AND COMMISSION PAID AMOUNTING TO RS.35,86,519 TO M/S. M/S. SPECTRU M SYNTHETICS PVT LTD ON SALE AND PURCHASE OF YARN/FABRICS. THE AO STATED THAT SAID COMMISSION AND BROKERAGES WERE MADE ONLY TO SISTER CONCERN BELONGING TO ASSESSEES GROUP CONCERN AND IS NOT GENUINE OR REASONABLE. AO, WHILE PASSING THE ORIGINAL ASSESSM ENT ORDER UNDER SECTION 143(3) OF THE ACT, ASKED THE ASSESSEE TO ADDUCE EVIDENCE REGA RDING THE NATURE OF SERVICES RENDERED BY M/S. SPECTRUM SYNTHETICS PVT LTD. ALON GWITH CONFIRMATION FROM THE SAID PARTY TOGETHER WITH NAME, ADDRESS, INCOME TAX ASSES SMENT PARTICULARS, ETC. HOWEVER, ASSESSEE STATED THAT ABOVE NAMED COMPANY HAD BEEN A TTACHED BY THE HONBLE HIGH COURT OF BOMBAY AND AS THE DIRECTORS OF THE SAID CO MPANY ARE ABSCONDING, ASSESSEE REQUIRED TIME FOR FURNISHING THE REQUIRED EXPLANATI ON. AO STATED THAT LATER ON ASSESSEE FURNISHED AN EXPLANATION CLAIMING THAT THE SAID COM PANY HAD INTRODUCED IT TO TRADING IN FABRICS WHICH IS A NEW LINE OF BUSINESS TO THE ASSE SSEE AND THAT COMMISSION HAD BEEN PAID AT 2% IN ADDITION TO BROKERAGE OF 5%, WHICH IS A COMMON TRADE PRACTICE. AO DID NOT ACCEPT THE SAID EXPLANATION OF THE ASSESSEE AND CLAIMS WERE DISALLOWED. ASSESSEE FILED APPEAL BEFORE LD CIT(A). LD CIT(A) CONFIRMED THE ACTION OF AO FOR THE REASONS STATED BY ITAT IN ITS EARLIER ORDER DATED 25.4.2006 IN I.T.A. NO.141/M/2002 IN PARA 3 IN APPEAL FILED BY ASSESSEE AS UNDER: 3. CIT(A) CONFIRMED AOS ACTION FOR THE REASONS TH AT : (I) PAYMENT HAD BEEN CLAIMED NOT ONLY ON SALES BUT ALSO ON PURCHASES, WH ICH IS UNUSUAL.(II) THE COMMISSION HAD BEEN CLAIMED TO HAVE BEEN MADE FOR P URCHASES AND SALES ONLY FROM THE SISTER CONCERN, M/S. RADHIKA SYNTHETICS LT D., FOR WHICH COMMISSION PAID IS ONLY A LAME REASON. (III)SUCH COMMISSION WAS NOT PAID TO THIS PARTY EITHER IN THE EARLIER YEARS OR IN THE SUBSEQUENT YEARS BUT ON LY IN THIS YEAR. (IV) APPELLANT COULD NOT SPECIFY THE PRECISE NATURE OF SERVICES RE NDERED FOR WHICH THE COMMISSION IS CLAIMED TO HAVE BEEN PAID. (V) COMMIS SION HAD ACTUALLY NOT BEEN PAID BUT ONLY CREDITED TO THE PARTYS PRODUCED AND ALSO EXPECT TAKING THE PLEA THAT SPECTRUM SYNTHETICS (P) LTD. WAS UNDER THE CON TROL OF RECEIVER, NO EVIDENCE IN PROOF OF SUCH FACT HAS BEEN FURNISHED. WITH THES E OBSERVATIONS AND HOLDING THAT FOR THE PURPOSE OF CLAIMING ANY EXPENDITURE AS DEDUCTIBLE THE ONUS IS ON THE ITA NO.5549/MUM/2010 ASSESSMENT YEAR: 1996-97 4 ASSESSEE TO ESTABLISH THAT THE SAME HAS BEEN INCURR ED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS AS PER THE PROVISIONS OF SE CTION 37, CIT(A) HAD CONFIRMED THE ADDITION MADE BY THE AO. 6. THE ASSESSEE WHEN DISPUTED THE SAID ORDER OF LD CIT(A) BEFORE THE TRIBUNAL, THE TRIBUNAL AFTER CONSIDERING THE SUBMISSIONS OF LD RE PRESENTATIVES OF BOTH PARTIES, VIDE PARA 7 OF ITS ORDER RESTORED THE GROUND TO THE AO F OR FRESH CONSIDERATION. PARA 7 READS AS UNDER: WE HAVE CONSIDERED ORDERS OF LOWER AUTHORITIES, AR GUMENTS OF THE AR AND DR AND THE MATERIAL ON RECORD. IT IS EVIDENT FROM THE ORDERS OF AO AND CIT (A) THAT RELIANCE HAS BEEN PLACED ON THE FACTS THAT TH E ASSESSEE HAD CLAIMED PAYMENT OF COMMISSION ONLY IN RESPECT OF SALES/PUR CHASES TO A SISTER CONCERN AND ALSO THAT THE ASSESSEE DID NOT PRODUCE ANY EVID ENCE FROM THE PARTY TO WHOM THE COMMISSION IS STATED TO HAVE PAID LIKE ACCOUNT COPY, PARTICULARS OF ADDRESS, ETC. APPELLANTS CONTENTION IS THAT IT HAD PAID COM MISSION ONLY IN RESPECT OF SALES TO A PARTY NOT RELATED TO IT AND ALSO THAT IT IS NO T IN A POSITION TO PRODUCE ANY INFORMATION FROM THE PARTY TO WHOM COMMISSION HAS B EEN PAID ONLY BECAUSE THAT PARTY IS BEFORE A COURT RECEIVER AND THAT NONE OF T HE PARTYS PROMOTERS ARE AVAILABLE. ARS SUBMISSION IS THAT THE LOWER AUTHOR ITIES HAVE BEEN MORE PREJUDICED AND MISLEAD BY THE FACT THAT THE PARTY T O WHOM COMMISSION AND BROKERAGE HAVE BEEN PAID IS A SISTER CONCERN WHICH FACT IS NOT CORRECT, BASED ON THE SWORN AFFIDAVIT FILED BEFORE US. ACCORDING TO U S, THE ASSESSEES CLAIM THAT THE PARTY TO WHOM THE SALES HAVE BEEN MADE IN RESPECT O F WHICH ONLY COMMISSION IS CLAIMED TO HAVE BEEN PAID IS NOT A SISTER CONCERN A ND ALSO THAT THE PARTY TO WHOM COMMISSION AND BROKERAGE HAVE BEEN PAID BEING UNDER RECOVERY PROCEEDINGS, IT IS NOT IN A POSITION TO FURNISH REQ UIRED INFORMATION BEFORE THE LOWER AUTHORITIES, ARE CLAIMS WHICH HAVE TO BE CONS IDERED IN THE PROPER PERSPECTIVE BY THE LOWER AUTHORITIES,. WE ARE OF THE OPINION THAT SINCE THESE FACTS HAVE A BEARING ON THE REJECTION OF ASSESSEES CLAIM, THAT IT WOULD BE IN THE INTEREST OF JUSTICE THAT THE MATTER SHOULD BE SET A SIDE TO THE FILE OF THE AO TO CONSIDER APPELLANTS CLAIM AFRESH IN THE LIGHT OF T HE ABOVE. WE ARE OF THE OPINION THAT THIS FACT BEING RELEVANT TO THE ISSUE, REQUIRE S EXAMINATION AT THE LEVEL OF AO AND HENCE, THE AFFIDAVIT FILED BY THE AR ONLY BEING IN SUPPORT OF A FACT BEING SET ASIDE FOR VERIFICATION, DRS ARGUMENTS REGARDING IT S VALIDITY ARE NOT RELEVANT. APPELLANT IS DIRECTED THAT IT NOT HAVING BROUGHT ON RECORD THESE FACTS EARLIER, THAT IT IS ITS RESPONSIBILITY TO FURNISH THE SAME BEFORE THE AO IN SUPPORT OF ITS CLAIM WITHOUT ANY FAILURE ON ITS PART. WITH THIS VIEW, TH IS GROUND IS SET ASIDE FOR FRESH CONSIDERATION BY HEA IS TREATED AS ALLOWED ONLY FOR STATISTICAL PURPOSES 7. PURSUANT THERETO, AO ISSUED A LETTER DATED 15.9. 2008 REQUIRING THE ASSESSEE, INTER ALIA, TO FURNISH THE FOLLOWING DETAILS: 1. DETAILS AND EVIDENCE SHOWING PROFIT EARNED OF RS .45,61,005/- OUT OF THE TRANSACTIONS WITH M/S. RADHIKA SYNTHETICS LTD., WHI CH WAS INTRODUCED BY M/S. SPECTRUM SYNTHETICS LTD. ITA NO.5549/MUM/2010 ASSESSMENT YEAR: 1996-97 5 2. COPY OF THE AFFIDAVIT AND OTHER EVIDENCES FILED BEFORE THE HONBLE ITAT TO PROVE THE TRANSACTIONS WERE NOT WITH SISTER CONCERN S. 3. COPY OF TICKET OR ANY OTHER EVIDENCE IN SUPPORT OF AIR TICKET OF EMPLOYEES WIFE INCLUDED IN FOREIGN TRAVEL EXPENSES. 8. HOWEVER, IT IS OBSERVED THAT ASSESSEE HAD NOT FU RNISHED REQUISITE INFORMATION BUT CONTENDED BEFORE THE AO THAT, PROCEEDINGS HAD BECOM E TIME BARRED AND, ACCORDINGLY, NO DETAILS WERE FURNISHED BEFORE THE AO. AO PASSED THE ORDER DATED 28.1.2009 COMPUTING THE TOTAL INCOME, INTER ALIA, DISALLOWING THE CLAIM OF THE ASSESSEE OF PAYMENT OF BROKERAGE OF RS.35,86,519/-. BEING AGGRIEVED, A SSESSEE FILED APPEAL BEFORE LD CIT(A). LD CIT(A) AFTER CONSIDERING THE SUBMISSION S OF ASSESSEE CONFIRMED THE ACTION OF AO VIDE PARA 5 OF THE IMPUGNED ORDER, WHICH READS A S UNDER: 5. I HAVE CAREFULLY CONSIDERED THE ABOVE FACTS. IT IS NOTICED FROM THE CONTENTS OF THE ORIGINAL ASSESSMENT ORDER DATED 31. 12.1998 THAT THE CLAIM OF THE APPELLANT REGARDING PAYMENT OF SALES C OMMISSION OF RS 35.86 LAKH WAS REJECTED BY THE AO MAINLY ON ACCOUNT OF TH E FACT THAT THE APPELLANT FAILED TO PROVE NEXUS OF THE SAID AMOUNT WITH THE BUSINESS OF THE APPELLANT. IT WAS FOUND THAT THE SAME HAD NO LI NK WITH SALES IN FABRIC AS DONE BY THE APPELLANT DURING THE YEAR. IN THE SU BSEQUENT APPEAL, THE CIT(A) VIDE ORDER DATED 8.11.2001 HAS UPHELD THE CO NCLUSION DRAWN BY THE AC BY OBSERVING THAT DESPITE BEING GIVEN SPECIF IC OPPORTUNITY TO THE APPELLANT FOR FILING CONFIRMATION OF THE SAID PARTY ON THE BASIS OF BOOKS WHICH WERE STATED TO BE IN THE POSSESSION OF THE C OURT RECEIVER. IN ABSENCE OF SUCH CONFIRMATION, HE ANALYSED THE FACTS OF THE CASE AT LENGTH UPHELD THE ACTION OF THE AO BY STATING THAT ONUS U/ S 37(1) WHICH WAS ON THE APPELLANT WAS NOT DISCHARGED BY IT. BEFORE THE ITAT, IT WAS STATED THAT THE PAYMENTS WERE MADE TO PARTIES WHICH WERE N OT ITS SISTER CONCERNS. THE HONBLE ITAT SET ASIDE THE ISSUE WITH A DIRECTION TO THE APPELLANT TO STATE ALL THE RELEVANT FACTS FOR PROPE R EXAMINATION BY THE AO. HOWEVER, AS STATED IN THE ASSESSMENT ORDER, THE APP ELLANT HAS NOT BEEN ABLE TO PROVE THE BUSINESS EXPEDIENCY BEHIND THE SA ID PAYMENT THOUGH ONUS U/S 37(1) LAY ON IT. THE APPELLANT HAS ALSO NO T BEEN ABLE TO ESTABLISH THAT IT DID NOT HAVE ANY RELATIONSHIP WITH SPECTRUM SYNTHETICS WHO WERE PAID COMMISSION. THE APPELLANT HAS FAILED TO ADDUCE EVIDENCE ANY REGARDING THE NATURE OF SERVICES RENDERED BY SPECTR UM SYNTHETICS PVT. LTD. ALONG WITH CONFIRMATION FROM THE SAID PARTY TO GETHER WITH THE NAME, ADDRESS, INCOME-TAX ASSESSMENT PARTICULARS. REFEREN CE TO EARLIER CORRESPONDENCES MADE AND PAN DETAIL OF RADHIKA SYN THETICS IS NOT RELEVANT TO THE ISSUE UNDER CONSIDERATION. THUS, TH E APPELLANT HAS FAILED TO COMPLY WITH THE DIRECTIONS OF THE HNBLE ITAT A ND IN SUCH SITUATION, THERE IS NO INFIRMITY IN THE CONCLUSION DRAWN BY TH E AO WHICH IS UPHELD. ITA NO.5549/MUM/2010 ASSESSMENT YEAR: 1996-97 6 9. HENCE, ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 10. AT THE TIME OF HEARING, LD A.R. CONTENDED THAT M/S. RADHIKA SYNTHETICS LTD., AS WELL AS M/S. SPECTRUM SYNTHETICS PVT LTD., WHO INTR ODUCED RADHIKA SYNTHETICS LTD., TO THE ASSESSEE ARE NOT SISTER CONCERN. HE SUBMITTED THAT BOTH THE SAID COMPANIES HAVE GONE INTO LIQUIDATION AND, THEREFORE, ASSESSEE COUL D NOT FURNISH REQUISITE DETAILS. LD A.R. REFERRED PAGES 26 TO 29 OF PB TO SUBSTANTIATE HIS SUBMISSIONS THAT SAID COMPANIES ARE NOT RELATED TO ASSESSEE COMPANY AS DIRECTORS ARE NO T COMMON. IN REPLY TO A QUERY AS TO WHETHER LD AR COULD FURNISH ANY OTHER EVIDENCE TO P ROVE THE GENUINENESS OF THE TRANSACTIONS AND CLAIM OF PAYMENT OF BROKERAGE AND COMMISSION, LD A.R. SUBMITTED THAT MATTER MAY BE RESTORED BACK TO THE FILE OF AO TO EN ABLE THE ASSESSEE TO GIVE REQUISITE DOCUMENTS. HOWEVER, LD A.R. COULD NOT GIVE ANY REP LY AS TO WHY THE SAID DETAILS WERE NOT FURNISHED TO THE AO WHEN THE MATTER WAS RESTORE D BACK BY THE ITAT VIDE ITS ORDER DATED 25.4.2006 FOR HIS FRESH CONSIDERATION WITH TH E SPECIFIC DIRECTION TO THE ASSESSEE TO PRODUCE REQUISITE DETAILS IN RESPECT OF SALES AND P URCHASE CLAIM MADE BY THE ASSESSEE. BE THAT AS IT MAY, LD A.R. SUBMITTED THAT MATTER MA Y BE RESTORED TO THE FILE OF AO FOR HIS FRESH CONSIDERATION. 11. ON THE OTHER HAND, LD D.R. SUBMITTED THAT ASSES SEE HAS NOT COMPLIED WITH THE DIRECTION OF THE TRIBUNAL WHEN THE MATTER WAS RESTO RED TO THE FILE OF AO TO CONSIDER THE ISSUE AFRESH. ON THE OTHER HAND, ASSESSEE MADE AN ATTEMPT TO THWART THE PROCEEDINGS BY NOT FURNISHING THE DETAILS. HE SUBMITTED THAT E VEN IF THE CONCERN PARTIES ARE NOT AVAILABLE, ONUS IS ON THE ASSESSEE TO ESTABLISH THE GENUINENESS OF THE PAYMENTS AND/OR RENDERING SERVICES BY PAYEE OF THE COMMISSION OR BR OKERAGE. 12. WE HAVE CONSIDERED SUBMISSIONS OF LD REPRESENTA TIVES OF PARTIES AND ORDERS OF AUTHORITIES BELOW. 13. WE FIND CONSIDERABLE FORCE IN THE SUBMISSIONS O F LD D.R. THAT ASSESSEE HAD NOT FURNISHED ANY DETAILS BEFORE THE AO BUT WANTED TO P REVENT THE PROCEEDINGS ON TECHNICAL ISSUE THAT THE PROCEEDINGS HAD BECOME TIME BARRED A ND, ACCORDINGLY, NO EFFECT TO THE ORDER OF THE TRIBUNAL COULD BE GIVEN. IT IS OBSERV ED THAT ASSESSEE HAS NOT PRODUCED ANY ITA NO.5549/MUM/2010 ASSESSMENT YEAR: 1996-97 7 DOCUMENTS BEFORE AUTHORITIES BELOW NOR ANY DOCUMENT IS PLACED BEFORE US TO SHOW THAT PAYMENTS WERE MADE BY THE ASSESSEE TOWARDS BROKERAG E AND COMMISSION TO M/S. SPECTRUM SYNTHETICS P LTD. FOR THE SERVICES RENDERE D BY IT TO ASSESSEE. IN THE ABSENCE OF ANY DOCUMENTS ON RECORD, AND CONSIDERING THAT C ASE PERTAINS TO A.Y. 1996-97 AND ALSO CONSIDERING THE FACT THAT WHEN THE MATTER WAS RESTORED BY THE TRIBUNAL TO THE AO WITH CLEAR DIRECTION TO RECONSIDER THE CLAIM OF TH E ASSESSEE AFRESH AND ASSESSEE FAILED TO FURNISH ANY DOCUMENTS BEFORE THE AUTHORITIES BELOW, WE DO NOT FIND ANY MERIT IN THE CONTENTIONS OF LD A.R TO RESTORE THE MATTER AGAIN T O AO FOR FRESH CONSIDERATION AND THAT TOO WHEN NO DOCUMENTS ARE ON RECORD TO SUPPORT THE CLAIM OF THE ASSESSEE. THEREFORE, WE HOLD THAT LD CIT(A) IS JUSTIFIED TO CONFIRM THE ACTION OF AO TO DISALLOW THE CLAIM OF THE ASSESSEE ON PAYMENT OF BROKERAGE AND COMMISSION OF RS.35,86,519 AS CLAIMED BY THE ASSESSEE. MOREOVER, THE TRIBUNAL IN ITS EARLIER OR DER ALSO OBSERVED THAT COMMISSION HAD ONLY BEEN PAID TO SISTER CONCERN AND ASSESSEE DID N OT PRODUCE ANY EVIDENCE FROM THE PARTY TO WHOM THE COMMISSION IS STATED TO HAVE BEEN PAID. AT THE TIME OF HEARING, ATTENTION OF LD A.R. WAS DRAWN TO THE ABOVE FACTS B UT LD A.R. COULD NOT CONTROVERT THE SAME. ACCORDINGLY, GROUND NOS.1 TO 3 ARE REJECTED BY UPHOLDING THE ORDER OF LD CIT(A). 14. IN THE RESULT, APPEAL FILED BY ASSESSEE IS DISM ISSED. PRONOUNCED IN THE OPEN COURT ON 12 TH OCTOBER, 2012 SD/- (B.R.JAIN) ACCOUNTANT MEMBER SD/- (B.R. MITTAL) JUDICIAL MEMBER MUMBAI, DATED 12 TH OCTOBER, 2012 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),II, MUMBAI 4. COMMISSIONER OF INCOME TAX, II , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH B MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI