THE DCIT RG. 8(3), Mumbai V. M/S. ZEYUS AIR SERVICES P. LTD, Mumbai

ITA 8167/MUM/2003

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7793 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 03-02-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 24-12-2003
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NUTAN VODEYAR
• Keywords: Search and seizure; Block assessment; Retraction
• Section: 143(3); 37(1); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'H' BENCH, MUMBAI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYRAGHAVAN, JUDICIAL MEMBER ITA NOS. 8166 & 8167/MUM/2003 (ASSESSMENT YEARS: 2000-01 & 2001-02) DCIT, RANGE 8(3) M/S. ZEUS AIR SERVICES PVT. LTD. AAYAKAR BHAVAN, M.K. ROAD 119, ADARSH INDUSTRIAL ES TATE MUMBAI 400020 VS. SAHAR ROAD, CHAKALA ANDHERI (E), MUMBAI 400099 PAN - AAACZ 0430 G APPELLANT RESPONDENT APPELLANT BY: MS. NUTAN VODEYAR RESPONDENT BY: SHRI JITENDRA SANGHAVI O R D E R PER J. SUDHAKAR REDDY, A.M. BOTH THESE APPEALS ARE FILED BY THE REVENUE AND ARE DIRECTED AGAINST SEPARATE ORDERS PASSED BY THE CIT(A) XXV DATED 14.1 0.2003 FOR THE ASSESSMENT YEARS 2000-01 AND 2001-02. THERE IS A CO MMON ISSUE IN BOTH THESE APPEALS AND THIS PERTAINS TO THE DELETION OF AN ADDITION ON ACCOUNT OF COMMISSION PAYMENT BY THE CIT(A) FOR THE ASSESSMENT YEAR 2000-01. ONE MORE GROUND HAS BEEN RAISED BY THE REVENUE AND THIS PERTAINS TO THE DELETION OF AN ADDITION OF RS.1,75,000/-. AS THE IS SUES IN BOTH THESE APPEALS ARE COMMON, FOR THE SAKE OF CONVENIENCE, THEY ARE H EARD TOGETHER AND DISPOSED OFF BY WAY OF THIS COMMON ORDER. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS A COMPA NY AND IS AN IATA APPROVED AGENT AND CARRIES ON THE BUSINESS OF CARGO CLEARING AND FORWARDING TO FACILITATE THE TRANSPORTATION OF CARGO BY AIR FO R VARIOUS CLIENTS AND SOME AGENTS FOR INLAND AND INTERNATIONAL DESTINATIONS. T HE ASSESSEE HAS HEAD OFFICE IN MUMBAI AND NINE BRANCHES SITUATED IN DIFF ERENT PARTS OF THE COUNTRY. A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT UNDER SECTION 132 OF THE ACT ON 01.11.1999 AND THIS WAS CONCLUDED ON 02.11.1999. THE ASSESSMENT BEFORE US PERTAINS TO THE PERIOD SUBSEQU ENT TO THE DATE OF SEARCH. THE ORDERS WERE PASSED UNDER SECTION 143(3) . IN THE A.Y. 2000-01 ITA NOS. 8166&8167/MUM/2003 M/S. ZEUS AIR SERVICES PVT. LTD. 2 THE ASSESSEE FILED A RETURN OF INCOME ON 30.11.2000 DECLARING THE TOTAL INCOME OF RS.93,20,056/-. THE A.O. DISALLOWED THE C LAIM OF THE ASSESSEE PERTAINING TO COMMISSION PAYMENT BY ADOPTING REASON S FOLLOWED BY HIM IN THE BLOCK ASSESSMENT DATED 29.11.2001 PASSED UNDER SECTION 158BC R.W.S 143(3) FOR THE PERIOD 01.04.1989 TO 01.11.1999. AT PARA 5.2 TO 5.4, THE RESULTS OF HIS INVESTIGATION DURING THE BLOCK ASSES SMENT PROCEEDINGS ARE BROUGHT OUT AND AS THE FACTS ARE SAME, THE CLAIMS O F COMMISSION PAYMENT WERE DISALLOWED. SIMILARLY FOR A.Y. 2000-01 A DISAL LOWANCE OR RS.1,75,000/- WAS MADE ON THE GROUND THAT THE PAYMENT IN QUESTION WAS OPPOSED TO PUBLIC POLICY. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL. THE FIRST APPELLATE AUTHORITY REFERRED TO THE ORDER PASSED BY HIM IN AN APPEAL BY THE ASSESSEE AGAINST BLOCK ASSESSMENT IN APPEAL NO. CIT (A) XXV/RG.8(3)/IT 171/01-02 DATED 28.08.2003 AND DELETED THE DISALLOW ANCE MADE ON ACCOUNT OF COMMISSION PAYMENTS. ON THE ISSUE OF DISALLOWANC E OF RS.1,75,000/- ON THE GROUND THAT THE PAYMENT IS OPPOSED TO PUBLIC PO LICY, THE FIRST APPELLATE AUTHORITY DELETED THE DISALLOWANCE ON THE GROUND TH AT THE SAME IS MADE ON CONJECTURES AND SURMISES. AGGRIEVED, REVENUE IS IN APPEAL ON THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT(A) ERRED IN DELETING THE ADDITION OF RS.7,31,73 7/- ON ACCOUNT OF COMMISSION PAYMENT TO THE PARTIES THOUGH SERVICES R ENDERED BY THEM COULD NOT BE ESTABLISHED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) ERRED IN DELETING THE ADDITION OF RS.1,75,00 0/- MADE ON THE BASIS OF THE EXPLANATION TO SECTION 37(1) WHICH STA TE THAT THE EXPENSES INCURRED OPPOSED TO PUBLIC POLICY ARE NOT ALLOWABLE. 3. WE HAVE HEARD MS. NUTAN VODEYAR, LEARNED SR. D.R. O N BEHALF OF REVENUE AND SHRI. JITENDERA SANGHAVI, THE LEARNED C OUNSEL FOR THE ASSESSEE. SHRI SANGHAVI FILED PAPER BOOK RUNNING INTO 232 PAG ES. THE BLOCK ASSESSMENT ORDER PASSED AND THE COPY OF THE ORDER O F THE CIT(A) IN THE APPEAL PROCEEDINGS HAVE ALSO BEEN FILED. COPIES OF THE AFFIDAVITS, STATEMENTS AND VARIOUS OTHER EVIDENCES FILED BOTH DURING THE C OURSE OF BLOCK ASSESSMENT PROCEEDINGS AS WELL FILED DURING THE COU RSE OF DECLARATION MADE DURING THE COURSE OF SEARCH, I.E. ON 2000-01 AND 20 01-02 HAD BEEN FILED IN THE PAPER BOOK. THE CASE WAS HEARD AT LENGTH. ITA NOS. 8166&8167/MUM/2003 M/S. ZEUS AIR SERVICES PVT. LTD. 3 4. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMS TANCES OF THE CASE AND A PERUSAL OF THE PAPERS ON RECORD AND THE ORDER S OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED WE HOLD AS FOLLOWS. 5. THE FIRST APPELLATE AUTHORITY AT PARA 9.3 OF HIS OR DER IN THE BLOCK ASSESSMENT PROCEEDINGS HAS SUMMARISED THE FINDINGS OF THE A.O. FROM THE STATEMENTS OF THE WITNESSES. IT IS EXTRACTED BELOW FOR READY REFERENCE: - I) NONE OF THE PARTIES HAD EVER ISSUED ANY BILLS TO THE ASSESSEE FOR THE SERVICES RENDERED BY THEM. IT WAS IMPROBABLE THAT A N ORGANISATION DOING BUSINESS IN A COMMERCIAL OR PROFESSIONAL MANN ER DID NOT ISSUE OR RAISE ANY BILL PARTICULARLY WHEN SERVICES HAD BEEN RENDERED BY IT. II) THE ALLEGED COMMISSION AGENTS HAD NOT MAINTAINE D ANY RECORDS WHATSOEVER IN RELATION TO THE SO-CALLED PARTIES INT RODUCED BY THEM. III) THERE WAS A CONTRADICTION BETWEEN THE VERSION OF THE ASSESSEE COMPANY AND THE SO-CALLED COMMISSION AGENTS IN SO F AR AS THE ISSUE OF CREDIT NOTES WAS CONCERNED. WHILE THE ASSESSEE COMP ANY HAS STATED THAT CREDIT NOTES HAD BEEN ISSUED THE RECIPIENTS DE NIED RECEIPT THEREOF. IV) THE DEPOSIT OF COMMISSION IN THE BANK ACCOUNT W AS FOLLOWED IMMEDIATELY BY A CASH WITHDRAWAL OR ISSUE OF CHEQUE S. IN SPITE OF A SPECIFIC QUERY ON THIS ACCOUNT, NO EXPLANATION WAS SUBMITTED BY ANY OF THE PARTIES WHICH INDICATES THE CULPABLE NATURE OF THE TRANSACTION. V) THE ALLEGED COMMISSION AGENTS HAVE ACTED AS A RECIPIENT OF COMMISSION BECAUSE IT DID NOT INCUR ANY TAX LIABILI TY UPON IT. THE RETURNED INCOME FILED BY THE ALLEGED COMMISSION AGE NTS HAVE BEEN FEW THOUSANDS OF RUPEES WHEREAS, THE ASSESSEE COMPANY C OULD SAVE HUGE TAXES ON THIS ACCOUNT. VI) CREDIT NOTES ARE SHOWN TO HAVE BEEN ISSUED BY T HE ASSESSEE ON THE LAST DATE OF THE ACCOUNTING YEAR WHEREAS, PAYMENTS ARE M ADE AFTER MORE THAN 9 MONTHS OR SO. IT IS IMPROBABLE THAT A PARTY WHO HAS ACTUALLY RENDERED SERVICES DID NOT APPROACH A PERSON FOR PAY MENTS OF THE DUES. VII) IT IS ALSO TO BE CONSIDERED THAT ALL THESE ALL EGED COMMISSION AGENTS HAVE DISCLOSED THE RECEIPT OF COMMISSION IN THE SUBSEQUE NT YEAR, I.E. ON RECEIPT BASIS AND HAVE NOT SHOWN THE ASSESSEE COMPANY AS DE BTOR IN THE YEAR IN WHICH PROVISION FOR COMMISSION HAS BEEN MADE BY THE ASSESSEE. 6. THE SUBMISSIONS OF THE ASSESSEE DURING THE ASSESSME NT PROCEEDINGS ARE EXTRACTED AT PARA 9.2 OF THE CIT(A)S ORDER, WH ICH IS EXTRACTED FOR READY REFERENCE: - 9.2 THE APPELLANT HAD SUBMITTED THAT PAYMENT OF C OMMISSION TO SUB- AGENTS WAS AN USUAL FEATURE AND AN ESSENTIAL REQUIR EMENT OF THE BUSINESS. IN THE COURSE OF ASSESSMENT PROCEEDINGS T HE APPELLANT HAD SUBMITTED AS UNDER: - ITA NOS. 8166&8167/MUM/2003 M/S. ZEUS AIR SERVICES PVT. LTD. 4 I) THE BUSINESS ACTIVITY OF THE APPELLANT COMMENCES WITH A BOOKING OF CARGO FROM CLIENTS AND THEREAFTER CONFIRMATION OF S PACE WITH VARIOUS AIRLINES FOR SHIPMENT. THE APPELLANT NEGOTIATES THE BEST PRICE AND THE TERMS OF THE SHIPMENT AND ISSUE AIRWAY BILLS AN D PREPARE VARIOUS DOCUMENTS FOR CLEARING THE CARGO THROUGH CU STOMS. THE APPELLANT ALSO TAKES DELIVERY OF CARGO FROM THE CLI ENTS OFFICE TO ITS GODOWNS AND AS SOON AS CUSTOM FORMALITIES ARE COMPL ETED CARGO IS FLOWN TO RESPECTIVE DESTINATIONS AS PER THE AIRWAY BILL INSTRUCTIONS. II) THE BUSINESS OF CARGO CLEARING AND FORWARDING I S A VERY COMPETITIVE BUSINESS. CUSTOMERS APPROACH VARIOUS AGENTS THROUGH INTERMEDIARIES FOR BOOKING OF CARGO THROUGH VARIOUS AIRLINES IN ORDER TO OBTAIN THE BEST PRICE FOR THEMSELVES. THERE ARE INTERMEDIARIES PARTIES WHO BRING SUCH CUSTOMERS TO THE CLEARING AN D FORWARDING AGENTS SO THAT A CLIENT RELATIONSHIP IS ESTABLISHED . HOWEVER IT IS NOT THAT FOR EVERY SHIPMENT THE INTERMEDIARIES WILL LIA ISE WITH THE CLEARING AND FORWARDING AGENTS. THE POSITION OF AN INTERMEDIARY IS SIMILAR TO THAT OF A BROKER, OR A SUB-BROKER OR A C OMMISSION AGENT IN ANY OTHER TRADE WHERE LARGE BUSINESS ARE CARRIED OU T ON TELEPHONIC CONVERSATION RATHER THAN THOROUGH EXCHANGE OF CORRE SPONDENCE AND OTHER SIMILAR PAPER WORK. III) THE APPELLANT HAS BEEN REGULARLY PAYING COMMIS SION TO VARIOUS SUB- AGENTS AND INTERMEDIARIES. THESE SUB-AGENTS AND INT ERMEDIARIES ARE CONTACTED BY THE DIRECTORS PERSONALLY AND NOT T HROUGH THEIR STAFF IN ORDER TO MAINTAIN SECRECY, CONFIDENTIALITY AND L OYALTY OF BUSINESS. OFTEN THE NAMES OF SUCH INTERMEDIARIES ARE NOT KNOW N TO THE STAFF FOR THE ABOVE REASONS. LIKE ALL OTHER MARKETS WHERE A PAYMENT FOR COMMISSION IS MADE AFTER THE AMOUNTS ARE REALIZED A ND AFTER THE ACCOUNTING YEAR IS OVER, IN THE APPELLANTS TRADE A LSO THE SAME PROCEDURE IS FOLLOWED. THUS THE APPELLANT IS REQUIR ED TO MAKE A PROVISION ON ACCRUAL BASIS FOR PAYMENT OF COMMISSIO N FOR THE ENTIRE YEAR AND THE WORKING FOR THE SAME IS MADE IN ONE IN STALMENT AFTER THE ACCOUNTING YEAR IS OVER. 7. PARTIES TO WHOM COMMISSION HAS BEEN PAID AND WHICH ARE INVOLVED IN THESE TWO ASSESSMENT YEARS ARE: (I) SANJAY FINANCE & TRADING CO., (II) CHANDAN SYNTHETIC PVT. LTD. AND SHANTKETAN FILMS DI STRIBUTORS PVT. LTD. 8. THE ASSESSEE ALSO FURNISHED DETAILS RELATING TO COM MISSION PAYMENTS YEAR-WISE FOR ALL THE PREVIOUS YEARS ALONGWITH THE DATE OF PAYMENT, CHEQUE NUMBERS AND THE NAME OF THE BANK. INCOME TAX PARTIC ULARS AND THE NAMES OF THE DIRECTORS AND PARTNERS WERE ALSO FURNISHED. COPY OF CREDIT NOTES AND COPY OF SUB-AGENCY AGREEMENTS WERE ALSO FURNISHED. THE PARTIES TO WHOM PAYMENTS WERE MADE HAD SUBMITTED THE FOLLOWING DETA ILS DURING THE COURSE OF ASSESSMENT OF ASSESSEE FOR A.Y. 1998-99: (I) CON FIRMATION OF COMMISSION INCOME, (II) STAMPED RECEIPTS, (III) COPY OF BANK S TATEMENT REFLECTING THE ITA NOS. 8166&8167/MUM/2003 M/S. ZEUS AIR SERVICES PVT. LTD. 5 COMMISSION RECEIVED, AND (IV) COPY OF AFFIDAVIT CON FIRMING THE SAME. THE ASSESSEE PRODUCED THE PARTIES BEFORE THE A.O. AND T HEY WERE EXAMINED. THE PARTIES HAVE CONFIRMED THE RECEIPT OF COMMISSION AN D ALSO CONFIRMED THAT THEY HAVE RENDERED SERVICES. IT IS ALSO A FACT THAT THESE PARTIES HAVE RECEIVED COMMISSION FOR SERVICES RENDERED IN THE EARLIER YEA RS AND HAVE BEEN REGULARLY FILING RETURNS OF INCOME BEING ASSESSED T O TAX. THE SUBMISSIONS OF THE ASSESSEE ARE SUMMARISED AT PARA 9.10 OF THE CIT (A)S ORDER IN THE BLOCK ASSESSMENT AS BELOW: - I) THE ADDITION BASED ON CONFESSION CANNOT BE SUST AINED. II) EVEN IF THE CONFESSION IS TO BE RELIED UPON THE SAME IS RETRACTED AND THE RETRACTION OUGHT TO BE ACCEPTED. III) THERE IS NO ADVERSE EVIDENCE FOUND DURING THE SEARC H. IV) EXAMINATION OF VARIOUS PARTIES HAVE REVEALED RENDER ING OF SERVICE BY THEM TO THE APPELLANT. THERE IS NO ADVERSE MATER IAL GATHERED IN COURSE OF EXAMINATION AGAINST THE APPELLANT. V) STATEMENTS OF VARIOUS PARTIES WAS NOT CONFRONTED IN COURSE OF ASSESSMENT, EVEN COPY OF STATEMENT WAS NOT GIVEN EI THER DURING THE ASSESSMENT OR ALONGWITH THE ASSESSMENT ORDER. VI) NO CROSS EXAMINATION HAS BEEN CARRIED OUT IN RESPEC T OF WHAT IS CALLED SO-CALLED ADVERSE MATERIAL BY THE ASSESSING OFFICER. VII) THE ASSESSING OFFICER HAS WRONGLY MADE THE ADDITION OF RS.77,93,251/- FOR A.Y. 1999-2000 FOR PARTIES OTHER THAN THE FIVE PARTIES EXAMINED BY THE ASSESSING OFFICER. IN VIEW OF THE ABOVE THE APPELLANT SUBMITS THAT THE ADDITION OF RS.3,07,67,916 OUGHT TO BE DELETED. 9. AFTER CONSIDERING ALL THESE SUBMISSIONS THE FIRST A PPELLATE AUTHORITY CONSIDERED THE ADMISSION MADE BY THE ASSESSEE DURIN G THE COURSE OF SEARCH AND SUBSEQUENT RETRACTION AND HELD THAT THE RETRACT ION, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, WAS JUSTIFIED. WE ARE NO T CONCERNED WITH THIS PART OF THE ORDER OF THE BLOCK ASSESSMENT AND WE EXPRESS NO OPINION ON THE SAME. NEVERTHELESS, THE FIRST APPELLATE AUTHORITY, IN AN APPEAL IN THE BLOCK ASSESSMENT ORDER, ON MERITS GAVE THE FOLLOWING FIND INGS: - SECONDLY, NOW COMING TO THE MERIT OF THE ADDITION OF RS.3,07,67,916/-, I NOTICED THAT THE ADDITION OF RS .3,07,67,916/- COMPRISES OF COMMISSION OF RS.22.086 LAKHS PAID TO THE 5 PARTIES FOR THE ACCOUNTING YEARS FROM 1991-93 TO 1997-98. THE FACTS HAVE BEEN DISCUSSED BY THE AO IN THE ASSESSMENT ORDER. THE RE MAINING COMMISSION ITA NOS. 8166&8167/MUM/2003 M/S. ZEUS AIR SERVICES PVT. LTD. 6 OF RS.86,32,474/- PERTAINS TO THE ACCOUNTING YEAR 1 998-99 RELEVANT TO AY 1999-00 (UPTO THE DATE OF SEARCH 1-11-1999). IT IS NOTICED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE 5 PARTIES TO WHOM THE COMMISSION OF RS.220.86 LAKHS WAS PAID WERE CALLED AND EXAMINED BY THE AO. THEY ARE REGULARLY ASSESSED TO INCOME TAX. THEY HAVE CONFIRMED THE RECEIPT OF COMMISSION AND PRODUCED REQUISITE PA PERS BEFORE THE AO AND THEY HAVE ALSO PRODUCED EVIDENCE TO RENDER SERV ICES IN VIEW OF THE COMMISSION RECEIVED. NONE OF THESE 5 PARTIES DENIED THE NON RECEIPT OF COMMISSION. NONE OF THEM HAVE ADMITTED THAT THERE I S A CASH PAYMENT FROM THEM TO THE APPELLANT COMPANY. ALL THE 5 PARTI ES HAVE PRODUCED THE BANK STATEMENT. THEY HAVE RENDERED THE SERVICES TO THE APPELLANT REGULARLY AND COMMISSION IS BEING PAID TO THEM SINC E ACCOUNTING YEAR 1992-93. IT IS FURTHER NOTICED THAT THE APPELLANT H AS NOT ONLY PAID COMMISSION TO THESE 5 PARTIES BUT HAD ALSO PAID COM MISSION TO OTHER SUB-AGENTS WHICH HAVE BEEN TREATED AS GENUINE. THUS , THESE 5 PARTIES HAVE CONFIRMED THE RECEIPT OF COMMISSION, PRODUCED STAMPED RECEIPTS, COPY OF THE BANK STATEMENTS AND ALSO COPY OF THE AF FIDAVITS. THEY HAVE DENIED OF PASSING ANY CASH TO THE APPELLANT OUT OF THE CASH WITHDRAWALS MADE BY THEM FROM THE RESPECTIVE BANK ACCOUNT. ON T HE FACE OF THESE PLETHORA OF EVIDENCES, IT CANNOT BE SAID THAT THE C OMMISSION PAID BY THE APPELLANT TO THESE 5 PARTIES IS NOT A GENUINE COMMI SSION. THE APPELLANT HAS ALREADY MADE DETAILED SUBMISSION AND HAS JUSTIF IED THE PAYMENT OF THE SAID COMMISSION TO THESE PARTIES AS BUSINESS EX IGENCIES. IT IS NOTICED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE 5 PARTIES TO WHOM COMMISSION OF RS.220.86 LAKHS WAS P AID WERE CALLED AND EXAMINED BY THE A.O. THEY ARE REGULARLY ASSESS ED TO INCOME TAX. CONSIDERING THE FACTS IN TOTALITY, WE FIND THAT THE PAYMENT OF COMMISSION TO THESE 5 PARTIES ARE DISCLOSED IN THE RESPECTIVE RETURNS IN AUDITED ACCOUNTS AND THE RECIPIENTS HAVE CONFIRMED THE RECE IPT OF THE SAME, THE QUESTION OF DISALLOWANCE OF THE SAME, THEREFORE, DO ES NOT ARISE. THE PAYMENT OF THE COMMISSION TO THESE 5 PARTIES FROM T HE ACCOUNTING YEAR 1992-93 TO 1997-98 AMOUNTING TO RS.220.86 CRORES IS A GENUINE PAYMENT AND THE ADDITION OF THE SAME OUT OF RS.3,07 ,67,916/- IS THEREFORE DELETED. 10. THE LEARNED D.R. COULD NOT CONTRADICT THESE FINDING S OF THE FIRST APPELLATE AUTHORITY. IN THE ASSESSMENT ORDER THE A. O. HAS NOT BROUGHT OUT ANY FRESH MATERIAL. THE INFERENCES DRAWN ARE BASED ON THE FACT THAT ON ISSUE OF CHEQUES BY THE ASSESSEE TOWARDS PAYMENT OF COMMI SSION, THE PARTIES WHO RECEIVED THE COMMISSION HAD WITHDRAWN THE CASH. THE RE IS NO FINDING THAT THE CASH HAS FLOWN BACK TO THE ASSESSEE. WITHDRAWN OF CASH MAY BE FOR NUMBER OF REASONS AND NO ADVERSE INFERENCE CAN BE T AKEN. EVEN THE DELAY IN PAYMENT OF COMMISSION HAS BEEN PROPERLY EXPLAINED. THUS ON THESE FACTUAL MATRIX WE UPHOLD THE ORDER OF THE CIT(A) AND DISMIS S THE GROUND OF REVENUE IN BOTH THE ASSESSMENT YEARS. ITA NOS. 8166&8167/MUM/2003 M/S. ZEUS AIR SERVICES PVT. LTD. 7 11. COMING TO THE SECOND GROUND OF APPEAL FOR ASSESSMEN T YEAR 2000-01, THE FIRST APPELLATE AUTHORITY GAVE A FINDING THAT T HE DISALLOWANCE HAS BEEN MADE ONLY ON THE GROUND THAT THERE HAS BEEN DISCLOS URE UNDER THE HEAD DURING THE BLOCK ASSESSMENT PROCEEDINGS. WE ALSO FI ND THAT THIS ADDITION WAS DELETED IN THE BLOCK ASSESSMENT ORDER AND AS TH IS DELETION WAS BASED ON THE FINDINGS OF THE BLOCK ASSESSMENT PROCEEDINGS. H E ALSO GAVE A FINDING THAT NO OTHER MATERIAL WAS FOUND TO COME TO A CONCLUSION THAT THIS CLAIM IS NOT ALLOWABLE. 12. AFTER CONSIDERING THE REVENUE SUBMISSIONS WE FIND N O REASON TO INTERFERE IN THESE FINDINGS OF THE FIRST APPELLATE AUTHORITY. THUS WE UPHOLD THE ORDER OF THE CIT(A) AND DISMISS THIS GROUND OF THE APPEAL. 13. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH FEBRUARY 2010. SD/- SD/- (ASHA VIJAYRAGHAVAN) (J. SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 11 TH FEBRUARY 2010 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XXV, MUMBAI 4. THE CIT VIII, MUMBAI CITY 5. THE DR, H BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P. ITA NOS. 8166&8167/MUM/2003 M/S. ZEUS AIR SERVICES PVT. LTD. 8 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 04.02.10 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 05.02.10 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR. PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR. PS/PS 7 FILE SENT TO THE BENCH CLERK SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER