Ballabhdas Udhodas Mohta, Nagpur V. ACIT,Circle-5, Nagpur

ITA 83/NAG/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75944 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-03-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 06-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Assessee Lawyers: M MANI
• Keywords: Additional evidence; Non compliance; Commercial expediency; Onus to prove; Capital expenditure
• Section: 37

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL-E-BENCH, NAGPU R ! ! ' ! /THROUGH VIDEO CONFERENCE AT MUMBAI # # # # $ $$ $ % %% % . . , '& '& '& '& $ $$ $ '!() '!() '!() '!() , ! !! ! . . BEFORE S/SH.H.L.KARWA,PRESIDENT AND RAJENDRA,ACCOUNTANT MEMBER /. ITA NO.83/NAG/2013 # # # # *# *# *# *# / ASSESSMENT YEAR 2009-10 BALLABHDAS UDHODA S MOHTA FLAT NO.102, JAGAT PLAZA, LAW COLLEGE SQUARE,AMRAVATI RD. NAGPUR-440010 PAN:ABRPM7905N V/S. ACIT, CIRCLE-5, AAYAKAR BHAVAN, NAGPUR-440001 ( +, / APPELLANT) ( -.+, / RESPONDENT) ASSESSEE BY : SHRI M.MANI REVENUE BY : SHRI NARENDRA KANE / 0 / DATE OF HEARING : 23-01-201 4 1* / 0 /DATE OF PRONOUNCEMENT : 10-03-201 4 , 1961 254 )1( ! !! ! (/#/ (/#/ (/#/ (/#/ 2!3 2!3 2!3 2!3 ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM - ! ! ! ! 24 24 24 24 , '!() '!() '!() '!() ! !! ! : CHALLENGING THE ORDER DT. 14.02.2013 OF THE CIT(A)- 19,MUMBAI,ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1)THE LEARNED CIT(A) ERRED IN CONFIRMING ORDER OF A SSESSING OFFICER AND TREATING THE ENTIRE CONSULTANCY FEES RECEIVED OF RS.1,82,00,000/-AS INC OME OF THE ASSESSEE. 2)THE CIT(A) ERRED IN TREATING THE SERVICE TAX OF R S 22,49,520/- RECEIVED AS INCOME OF THE ASSESSEE, WHEN NO SUCH DEDUCTION WAS CLAIMED. 3)ANY OTHER GROUND THAT MAY BE TAKEN AT THE TIME OF HEARING. 2. ASSESSEE,AN INDIVIDUAL,FILED HIS RETURN OF INCOME O N 16.03.2010 DECLARING TOTAL INCOME OF RS. 61,10,780/-.ASSESSING OFFICER (AO)FINALISED THE ASS ESSMENT ORDER U/S.143(3) OF THE ACT,ON 27. 12. 2011, DETERMINING THE TOTAL INCOME AT RS.2,29,28300 /-. FIRST GROUND OF APPEAL PERTAINS TO CONSULTANCY FEES RECEIVED BY HIM.DURING THE ASSESSMENT PROCEEDINGS AO FOUND THAT THE ASSESSEE HAD RECEIVED RS.1.82 CRORES FROM HINDUSTAN ZINC LTD. (HZL).AS PER THE ASSESSEE ,AMOUNT RECEIVED BY HIM F ROM HZL WAS CONSULTANCY FEES.AO DIRECTED THE ASSESSEE TO FILE DETAILS REGARDING SALARY INCOM E,INCOME FROM BUSINESS/OTHER SOURCES,CAPITAL GAIN AND DEDUCTIONS CLAIMED.ON SCRUTINY,AO FOUND TH AT THOUGH THE ASSESSEE HAD RECEIVED RS.1, 82,00,000/-FROM HZL,BUT HE HAD OFFERED ONLY RS.35,4 0,000/-OUT OF CONSULTANCY FEE FOR TAXATION. HE ISSUED SUMMONS U/S.131 OF THE ACT AND STATEMENT OF THE ASSESSEE WERE RECORDED ON 02.12. 2011.AFTER ANALYSING THE STATEMENT OF THE ASSESSEE ,HE HELD THAT THE ASSESSEE HAD NOT MAINTAINED ANY BOOKS OF ACCOUNTS,THAT HE HAD NOT KEPT ANY ACCO UNT OF EXPENSES PURPORTEDLY INCURRED FOR EARNING THE CONSULTANCY RECEIPTS FROM HZL,THAT THE ASSESSEES SUBMISSION THAT THE EXPENSES WERE DETERMINED TO BE 80% OF THE RECEIPTS ON ESTIMATE B ASIS WAS NOT SUBSTANTIATED BY HIM WITH ANY 2 ITA NO. 83/NAG/2013 BALLABHDAS UDHODAS MOHTA DOCUMENTARY EVIDENCES. HE FURTHER HELD THAT THE ONUS OF FURNISHING EVIDENC ES IN SUPPORT OF CLAIM OF EXPENDITURES WAS ON THE ASSESSEE,THAT HE HAD NOT DISCHARGED ONUS CAST U PON HIM,THAT IT WAS ASSESSEES RESPONSIBILITY TO PROVIDE APPROPRIATE EVIDENCE TO PROVE THE ADMISSIBI LITY OF THE CLAIM OF 80% EXPENDITURE INCURRED BY HIM,THAT IN THE ABSENCE OF ANY WRITTEN CONTRACT IT COULD NOT BE ASCERTAINED WHETHER HE WAS OBLIGED TO INCUR EXPENSES IN THE COURSE OF RENDERIN G SERVICES IN HIS CAPACITY AS CONSULTANT OR NOT, THAT IT APPEARED UNLIKELY THAT A PERSON HAD INCURRE D EXPENSES OF OVER RS.1.50 CRORES AND DID NOT HAVE A SHRED OF EVIDENCE TO SUBSTANTIATE HIS CLAIM, IF INDEED THE ASSESSEE HAD TO INCUR EXPENSES OF SUCH SUBSTANTIAL SUMS ON BEHALF OF HZL IT WOULD AP PEAR TO BE RATHER FAR-FETCHED THAT HE WOULD NOT BE REQUIRED TO RENDER DETAILS OF THE SAME TO THAT C OMPANY,THAT NO DETAILS WERE PROVIDED BY THE ASSESSEE THAT COULD SATISFY THE CONDITIONS LAID DO WN BY THE PROVISIONS OF SEC.37 OF THE ACT,THAT HE HAD NOT BROUGHT ON RECORD THE FUNDS WHICH HAD BEEN UTILIZED FOR MAKING THE EXPENDITURE,THAT THE ASSESSEE HAD NOT BEEN TRANSPARENT IN DECLARING THE DETAILS OF HIS TRANSACTIONS WITH HZL,THAT HE DID NOT MAINTAIN BOOKS OF ACCOUNTS AND DID NOT CARRY OU T AUDIT AS MANDATED BY LAW UNDER PROVISIONS OF SEC.44AB OF THE ACT.AO FINALLY HELD THAT ALTHOUG H THE ASSESSEE CLAIMED EXPENSES TO THE TUNE OF 80% OF THE CONSULTANCY RECEIPTS, HE DID NOT MAINTAI N ANY RECORDS OF THE EXPENDITURE INCURRED NOR PRODUCED ANY PROOF WHATSOEVER TO SUBSTANTIATE HIS C LAIM OF EXPENSES,THAT HIS CONTENTION THAT 20% OF THE RECEIPT WAS TAXABLE COULD NOT BE ACCEPTED,TH AT TOTAL RECEIPTS OF RS.1, 82,00,000/-RECEIVED FROM HZL WAS TO BE ADDED BACK TO THE INCOME OF THE ASSESSEE. 2.1. AGAINST THE ORDER OF THE AO ASSESSEE PREFERRED AN A PPEAL BEFORE THE FIRST APPEAL AUTHORITY (FAA).DURING THE APPELLATE PROCEEDINGS FAA ASKED T HE AR OF THE ASSESSEE TO PRODUCE THE DETAILS REGARDING THE EXPENDITURE INCURRED.AR STATED THAT T HE ASSESSEE HAD NOT MAINTAINED ANY BOOKS OF ACCOUNT AND DETAILS REGARDING EXPENDITURE INCURRED WAS NOT AVAILABLE WITH HIM.FAA HELD THAT IN ABSENCE OF DETAILS;REGARDING THE EXPENDITURE INCURR ED,THE MODUS OPERANDI OF EXPENDITURE INCURRED, THE PURPOSE FOR WHICH IT WAS INCURRED;IT WAS NOT PO SSIBLE TO ESTABLISH NEXUS BETWEEN THE EXPENDITU -RE INCURRED THE BUSINESS CARRIED OUT BY THE ASSESS EE.IN ABSENCE OF ANY DETAILS , WHICH WAS IN THE SOLE POSSESSION OF THE ASSESSEE,FAA HELD THAT HE WA S CREATING AN IMPEDIMENT IN CORRECT ADJUDICATION OF CLAIM,THAT EXAMINATION OF BANK ACCO UNT REVEALED THAT MOST OF THE WITHDRAWALS WAS IN CASH.AS THE ASSESSEE HAD NOT FURNISHED ANY DETAI LS TO EXPLAIN THE DEBITS AS WELL AS CREDITS IN THE ACCOUNTS,FAA HELD THAT THE BANK ACCOUNT WAS ALSO NO T OF ANY AID IN EXAMINING THE NATURE AND COMMERCIAL EXPEDIENCY OF THE EXPENDITURE,THAT THE A R IN SPITE OF REPEATED REQUEST HAD NOT EXPLAINED THE REASON AND PURPOSE FOR WITHDRAWAL FRO M THE BANK.ABOUT THE XEROX OF SOME SELF MADE VOUCHERS,SHOWING PAYMENT IN CASH,FILED BEFORE HER,SHE HELD THAT ONE OR TWO VOUCHERS, SHOWED PAYMENT OF SALARY IN CASH,THAT NO DETAILS RE GARDING TO WHOM AND FOR WHAT PURPOSE IT WAS PAID WAS FILED. ADVERTING TO THE FACTS OF THE CASE,SHE HELD THAT NO DETAILS HAD BEEN FURNISHED,THAT THE NEXUS OF EXPENDITURE TO THE INCOME AND LEGALITY OF THE EXPEN DITURE COULD NEITHER BE EXAMINED NOR ESTABLISHED,THAT MOST OF THE EXPENDITURE HAD BEEN M ADE IN CASH FOR WHICH NO DETAIL REASON WITH COGENT EVIDENCE WERE PRODUCED,THAT EXPENDITURE VOUC HERS FILED BY THE ASSESSEE ALSO DID NOT PROVE THAT THOSE EXPENDITURE HAD BEEN INCURRED FOR THE PU RPOSE OF INCOME EARNED,THAT NO NEXUS HAD BEEN PROVED BY THE ASSESSEE THAT THE EXPENDITURE INCURRE D WAS FOR THE PURPOSE OF EARNING THE INCOME. THEREFORE THE DISALLOWANCE,MADE BY THE AO,WAS UPHEL D. ISSUE AS TO WHETHER SUCH EXPENSES WERE NECESSARY OR NOT IN TERMS OF COMMERCIAL EXPEDIENCY U/S.37(1) OF THE ACT WAS ALSO DELIBERATED UPON BY T HE FAA.SHE HELD THAT SUCH ISSUE WOULD ARISE ONLY AFTER THE ASSESSEE HAD DISCHARGED HIS INITIAL ONUS PRIMA-FACIE TO ESTABLISH SUCH CLAIM,THAT THE ASSESSEE HAD FAILED TO DISCHARGES HIS PRIMARY ONUS, THAT IN ABSENCE OF ANY EVIDENCE THE QUESTION AS TO WHETHER EXPENSES WERE INCURRED FOR COMMERCIAL EX PEDIENCY DID NOT ARISE AT ALL.IN THIS REGARED SHE RELIED UPON THE CASE OF HINDUSTAN TOBACCO COMP ANY (211TAXMAN111),DELIVERED BY THE HONBLE CALCUTTA HIGH COURT.REFERRING TO THE DECISI ON OF PUNJAB AND HARYANA HIGH COURT IN THE CASE OF S. G. EXPORTS(200TAXMAN132),SHE HELD THAT SINCE THE ASSESSEE HAD CLAIMED THE EXPENSES, THE ONUS WAS ON HIM TO PROVE THE FACT BY PRODUCING COGENT AND CONVINCING EVIDENCE INCLUDING IDENTITY OF PARTIES.SHE ALSO RELIED UPON THE CASE O F G R PANDYA SHARE BROKING 3 ITA NO. 83/NAG/2013 BALLABHDAS UDHODAS MOHTA LTD.(26SOT431).FURTHER,RELYING UPON THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN CASE OF VODAFONE INTERNATIONAL HOLDINGS B.V.(311 ITR 46),SH E HELD THAT NON PRODUCTION OF DOCUMENTS, AGREEMENTS,INFORMATION,DETAILS ETC.,WHICH WERE IN P OSSESSION OF THE ASSESSEE AND WERE THE BEST EVIDENCE TO DECIDE THE ISSUE BEFORE TAX AUTHORITIES ,HAD TO BE HELD AGAINST THE ASSESSEE,THAT IT CLEARLY AMOUNTED TO WITHHOLDING OF BEST EVIDENCE EV EN ASSUMING THAT THE ONUS OF PROOF DID NOT LIE ON THE ASSESSEE AND HENCE,THE COURTS HAD NO OPTION BUT TO DRAW ADVERSE INFERENCE AGAINST THE ASSESSEE IN SUCH CIRCUMSTANCES,THAT THE OBJECT OF T HE ASSESSEE IN NOT FURNISHING THE INFORMATION WAS TO PREVENT THE FULL FACTS FROM EXAMINATION WHIC H MAY BE DETRIMENTAL TO HIS INTERESTS,THAT THE ASSESSEE HAD NOT COME IN THE PRESENT APPEAL WITH CL EAN HANDS,THAT HIS INTENTION TO WITHHOLD THE EXPENDITURE INCURRED APPEARED TO BE MALAFIDE,THAT H E WAS TRYING TO CREATE IMPEDIMENTS IN CORRECT ADJUDICATION OF CLAIM, THAT IN THE APPELLATE PROCEE DINGS, BURDEN OF PROOF LIED ON THE ASSESSEE TO PROVE THAT FACTS AND FINDINGS OF THE AO WERE INCORR ECT,THAT IF THE ASSESSEE FAILED TO DISPROVE OR REBUT WITH COGENT EVIDENCE SUCH FACTS AND FINDINGS NO INTERFERENCE WAS REQUIRED,THAT THE ASSESSEE DID NOT CHOOSE TO AVAIL SEVERAL OPPORTUNITIES IN AP PELLATE PROCEEDINGS WHICH ENTAILED CONCLUSION THAT HE HAD NO EVIDENCE OR SAY OR EXPLANATION AGAIN ST THE ORDER OF THE AO,THAT IN CASE OF TAX EVASION SOMETIMES COMPLIANCE WAS MORE DETRIMENTAL T HAN NON COMPLIANCE BECAUSE COMPLIANCE COULD LEAD TO MORE INVESTIGATION OR MORE POINTS TO BE EXPLAINED,THAT IN THE LINE OF LIASONING BUSINESS THE EXPENSES MORE OFTEN WERE INCURRED FOR ILLEGAL GRATIFICATION TO PROCURE THE CONTRACT OR GET THE WORK DONE,THAT SUCH PROHIBITED EXPENSES COU LD NOT BE ALLOWED,THAT THE ASSESSEE HAD FAILED EVEN TO FURNISH THE DETAILS OF PURPOSE AND NATURE O F EXPENSES.FINALLY,SHE HELD THAT THE ASSESSEE HAD NOT PRODUCED ANY DETAILS FOR THE EXPENSES INCURRED IN SPITE OF REPEATED OPPORTUNITY AT THE TIME OF ASSESSMENT AS WELL AS APPELLATE PROCEEDINGS,THAT FO R THAT FAILURE ORDER OF THE AO HAD TO BE CONFIRMED. 2.2. BEFORE US,AUTHORISED REPRESENTATIVE(AR) SUBMITTED T HAT THE ASSESSEE WAS NOT MAINTAINING BOOKS OF ACCOUNTS,THAT HE HAD NOT WITHHELD ANY INFO RMATION,THAT EXCEPT THE PAPER BOOK THERE WAS NO EVIDENCE TO SUBSTANTIATE HIS CLAIM,THAT IN THE C ASE UNDER CONSIDERATION AO HAD ADDED THE ENTIRE RECEIPT,THAT ESTIMATE MADE BY THE ASSESSEEABOUT EXP ENDITURE WAS REASONABLE.DEPARTMENTAL REPRESENTATIVE(DR) SUBMITTED THAT NO EVIDENCE WAS P RODUCED BY THE ASSESSEE BEFORE ANY OF THE AUTHORITIES TO PROVE THAT EXPENDITURE WAS INCURRED, THAT FAA HAD ASKED HIM TO PRODUCE THE EVIDENCE WITH REGARD TO CLAIM MADE BY HIM,THAT IN S PITE OF THAT HE DID NOT PRODUCE ANY EVIDENCE. 2.3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.IN OUR OPINION,THE BASIC QUESTIONS TO BE ANSWERED BY US IN THE APPEAL BEFORE US,ARE: A.WHETHER THE EXPENDITURE WAS INCURRED WHOLLY AND E XCLUSIVELY FOR THE BUSINESS OF THE ASSESSEE ? B.WHETHER THE ASSESSEE HAD FURNISHED NECESSARY EVID ENCES TO SUPPORT HIS CLAIM THAT HE HAD INCURRED EXPENDITURE FOR CARRYING OUT HIS BUSINESS DURING THE YEAR UNDER APPEAL ? C.WHETHER THE FAA WAS JUSTIFIED IN DISMISSING THE A PPEAL OF THE ASSESSEE ? BEING THE FINAL FACT FINDING AUTHORITY,IT IS OUR DU TY TO CONSIDER THE FACTS OF THE CASE BEFORE ARRIVIN G AT SOME CONCLUSION.ACCORDINGLY,WE WOULD LIKE TO HIG HLIGHT THE BELOW-MENTION THE UNDISPUTED FACTS OF THE CASE: I.)ASSESSEE HAD CLAIMED THAT HE HAD RECEIVED RS.1.8 2 CRORES FROM HZL FOR FOLLOWING UP THE PROJECTS OF THE COMPANY WITH VARIOUS DEPARTMENTS AN D FOR SEEKING CLEARANCE FOR THE COMPANY. II.)LATER ON IT WAS CLAIMED THE TOTAL RECEIPT FORM HZL WAS OF RS.2.04 CRORES. III.)ASSESSEE WAS NOT MAINTAINING ANY BOOKS OF ACCO UNTS AND HE DID NOT GET HIS ACCOUNTS AUDITED. IV.)HE DID NOT PRODUCE ANY EVIDENCE BEFORE THE AO O R THE FAA ABOUT INCURRING OF EXPENDITURE FOR BUSINESS PURPOSES. V.)HE CLAIMED THAT HE HAD TO DEAL WITH VARIOUS DEPA RTMENTS OF RAJASTHAN GOVT./CENTRAL GOVT. 4 ITA NO. 83/NAG/2013 BALLABHDAS UDHODAS MOHTA VI.)80% OF THE TOTAL RECEIPTS(INITIALLY OF 1.82 CRO RES AND LATER ON OF 2.04 CRORES) WAS CLAIMED AS EXPENDITURE FOR CARRYING OUT HIS BUSINESS. VII.)AO AND THE FAA HAD MADE/CONFIRMED ADDITION TO HIS INCOME. 2.3.A. HERE,IT WILL BE USEFUL TO CONSIDER THE PRINCIPLES T HAT GOVERN THE ALLOWANCE OF DEDUCTIONS CLAIMED BY AN ASSESSEE CARRYING OUT BUSINESS.COURTS ARE OF THE VIEW THAT THE SCOPE AND AMBIT OF THE EXPRESSION FOR THE PURPOSE OF THE BUSINESS IN SECTION 37 OF THE ACT IS VERY WIDE.BUT, HOWEVER WIDE THE MEANING OF THIS EXPRESSION MAY BE,ITS LIMI TS ARE IMPLICIT IN IT.THE PURPOSE SHOULD BE FOR THE PURPOSES OF BUSINESS. SECTION 37 OF THE ACT ENVISAGES THAT FOR CLAIMING A NY EXPENDITURE FOR CARRYING OUT BUSINESS IT HAS TO BE PROVED THAT EXPENDITURE WAS INCURRED WHOLLY A ND EXCLUSIVELY FOR THE BUSINESS.WORD WHOLLY HAS BEEN DEFINED AND ANALYSED BY THE HONBLE ALLAHA BAD (LUCKNOW BENCH) AND KARNATAKA HIGH COURTS IN THE MATTERS OF SMT. SWAPNA ROY(331ITR367) AND MYSORE KIRLOSKAR LTD.(166ITR836). IN THE CASE OF MYSORE KIRLOSKAR LTD.(SUPRA)HONBLE KARNATAKA HIGH COURT HAS HELD THAT THE WORD WHOLLYREFERS TO THE QUANTUM OF EXPENDITURE AND TH E WORD EXCLUSIVELYREFERS TO THE MOTIVE, OBJECT OR PURPOSE OF THE EXPENDITURE.DECIDING THE M ATTER OF SMT. SWAPNA ROY,(SUPRA)HONBLE HIGH COURT HAS HELD AS UNDER: BY USING THE WORDS WHOLLY AND EXCLUSIVELY, THE L EGISLATURE HAS CAST A DUTY ON THE ASSESSEE TO ESTABLISH THAT THE EXPENDITURE WAS TO EARN INCOME A ND NOT FOR ANY OTHER PURPOSE. THE EFFECT OF THE WORDS, WHOLLY AND EXCLUSIVELY FOR THE PURPOSE MUS T NOT BE DILUTED. BY USING THREE WORDS, I.E. WHOLLY, EXCLUSIVELY AND PURPOSE THE LEGISLATU RE HAD MADE IT MANDATORY TO FIND OUT THE REASON BEHIND INVESTMENT HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF RA MANAND SAGAR(256ITR134)HAS HELD AS UNDER: SECTION 37 OF THE INCOME-TAX ACT, 1961, DEALS WITH THE QUESTION RELATING TO THE ALLOWABILITY OF THE EXPENDITURE INCURRED FOR THE PURPOSES OF BUSINESS. THE ONUS OF PROOF IS UPON THE ASSESSEE TO PROVE EACH OF THE FOLLOWING INGREDIENTS BEFORE THE EXPEND ITURE CAN BE ALLOWED AS DEDUCTION : (A) THE ITEM OF EXPENDITURE MUST NOT BE OF THE NATURE DESCRIBED UNDER SECTIONS 30 TO 36 OF THE ACT ; (B) THE ITEM OF EXPENDITURE MUST NOT BE IN THE NATURE OF CAPITAL OR PERSONAL EXPENSES OF THE ASSESSEE ; (C) THE EXPENDITURE MUST BE LAID OUT WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS OR PROFESSION. IF THE ASSESSEE FAILS TO SATISFY ANY OF THESE TESTS, T HE EXPENDITURE CLAIMED IS NOT ALLOWABLE. 2.3.B. FROM THE ABOVE DISCUSSION,IT IS CLEAR THAT FOR CLAI MING AN EXPENDITURE AS ALLOWABLE EXPENDITURE ASSESSEES HAVE TO PROVE THAT EXPENDITU RE INCURRED BY THEM WAS INCURRED IN COURSE OF BUSINESS ONLY.MERE OUT-GOING OF AN AMOUNT IS NOT SU FFICIENT.SIMILARLY,GRATUITOUS PAYMENTS ARE ALSO CONSIDERED EXPENDITURE INCURRED FOR CARRYING O N BUSINESS.IF THE MOTIVE/PURPOSE/OBJECT OF THE EXPENDITURE IS NOT CARRYING ON BUSINESS/PROFESSION, THEN ASSESSEE CANNOT EXPECT THAT SAME WOULD BE ALLOWED BY THE AO.NOT ONLY THE EXPENDITURE HAS TO B E FOR BUSINESS PURPOSES,BUT THE ONUS IS ON THE ASSESSEE TO PROVE THE FACT.HE HAS TO PRODUCE DOCUME NTARY EVIDENCE THAT CAN POSITIVELY PROVE HIS CLAIM. MERE MAKING A CLAIM OF INCURRING EXPENDITURE FOR BUSINESS PURPOSES IS NOT SUFFICIENT,THE CLAIM HAS TO BE BACKED BY EXPLICIT EVIDENCES.NO PRE SUMPTION CAN TAKE PLACE OF HARD CORE EVIDENCE.IN OTHER WORDS IT IS THE ASSESSEE WHO HAS TO PLACE BEFORE THE INCOME-TAX AUTHORITIES PROPER MATERIALS WHICH WOULD ENABLE THEM TO COME TO THE CONCLUSION THAT THE EXPENDITURE CLAIMED TO BE INCURRED FOR THE BUSINESS PURPOSE WAS ACTUALL Y INCURRED FOR HIS BUSINESS; IT WAS NOT FOR THE INCOME-TAX AUTHORITIES TO PROVE THAT IT WAS NOT INC URRED WHOLLY AND EXCLUSIVELY FOR THE BUSINESS PURPOSES.HONBLE BOMBAY HIGH COURT HAS,IN THE MATTE R OF RAMANAND SAGAR(SUPAR),HAS SPECIFICALLY HELD THAT THE ASSESSEE HAS TO PROVE AL L THE THREE INGREDIE -NTS,IF HE WANTS THAT HIS CLAI M SHOULD BE ALLOWED.THUS,THE LAW IS VERY MUCH SETTLED IN THIS REGARD.IN OUR,OPINION,REASONS FOR SAME ARE NOT DIFFICULT TO UNDERSTAND.SECTION 106 OF THE EVIDENCE ACT STIPULATES THAT THE ONUS OF PROVING A FACT ALWAYS LIES ON THE PERSON WITHIN WHO SE KNOWLEDGE ESPECIALLY THAT FACT IS AND IT CANNOT BE DENIED THAT FOR THE PURPOSE OF SECTION 3 7 OF THE ACT,THE ASSESSEES ARE THE PERSONS WHO HAVE TO PROVE THE FACT OF INCURRING OF EXPENDITURE FOR BUSINESS PURPOSES. 5 ITA NO. 83/NAG/2013 BALLABHDAS UDHODAS MOHTA 2.3.C. WE WOULD LIKE TO SUMMARISE THE PRINCIPLES OF BURDEN OF PROOF IN FOLLOWING MANNER: I.)THE BURDEN OF PROOF LIES ON THE PARTY WHO SUBSTA NTIALLY ASSERTS THE AFFIRMATIVE OF THE ISSUE AND NOT UPON THE PARTY WHO DENIES IT. II.)ASSESSEE,WHO IS IN POSSESSION OF ACCOUNT BOOKS KEPT BY HIM AND FROM WHICH CERTAIN FACTS COULD BE PROVED,SHOULD PRODUCE THEM BEFORE THE AO.H E CANNOT ARGUE THAT IT WAS NO PART OF HIS DUTY TO PRODUCE THEM UNLESS HE WAS CALLED UPON TO D O SO. III.)NON-PRODUCTION OF ACCOUNT BOOKS WHICH ARE RELE VANT FOR DETERMINATION OF THE ISSUES IN THE CASE MAY GIVE RISE TO AN ADVERSE INFERENCE AGAINST THE P ARTY WHO FAILS TO PRODUCE THEM. IV.)THE QUESTION WHETHER A PARTICULAR SUM WAS EXPEN DED WHOLLY AND EXCLUSIVELY FOR THE PURPOSES OF THE BUSINESS MUST ESSENTIALLY BE A QUESTION OF F ACT TO BE DETERMINED BY THE AO.BUT,IT WOULD BE OPEN TO THE ASSESSEE TO CONTEND THAT THE DECISION A RRIVED AT BY THE INCOME-TAX OFFICER WAS BASED ON NO EVIDENCE AT ALL.IF THE ASSESSEE SATISFIES THE COURT THAT APART FROM THE ACTUAL PAYMENT AND EXISTENCE OF THE AGREEMENT NO OTHER FACTORS WERE TA KEN INTO CONSIDERATION BY THE AO,THEN PERHAPS THE COURT WOULD SAY THAT THE AO WAS NOT JUSTIFIED I N COMING TO THE CONCLUSION THAT HE DID. HERE,IT WOULD BE USEFUL TO REFER TO THE MATTER OF D EWAN BAHADUR DEWAN KRISHNA KISHORE DELIVERED BY THE HONBLE HIGH COURT OF OUDH (9 ITR 225)WHEREIN IT WAS HELD : IN THE CASE OF AN ASSESSMENT UNDER THE INCOME-TAX ACT THE ONLY PERSON WHO HAS KNOWLEDGE OF ALL FACTS IN REGARD TO THE MAINTENANCE OF ACCOUNTS IS T HE ASSESSEE HIMSELF. THE BURDEN OF PROOF IN THE FIRST INSTANCE IS ALWAYS ON HIM TO ESTABLISH THAT A CCOUNTS ASKED FOR ARE NOT MAINTAINED, AND HIS ATTEMPT TO ESTABLISH THAT POINT MAY ALWAYS BE MET B Y RELIANCE UPON CIRCUMSTANCES INDICATING THAT THE EVIDENCE GIVEN OR LED BY HIM CANNOT BE RELIED U PON. THE INCOME-TAX OFFICER IS ENTITLED TO DISBELIEVE IMPROBABLE STATEMENTS AND TO ASK FOR SOM ETHING MORE TO BE PRODUCED BY THE ASSESSEE WHICH WILL SATISFY THE INCOME-TAX OFFICER AND THE ASSISTANT COMMISSIONER THAT THE ACCOUNTS DEMANDED ARE NOT, IN FACT, MAINTAINED. PARTICULARLY IN CASES WHERE THE GIVING OF POSITIVE EVIDENCE BY A DEPARTMENT ABOUT FACTS WHICH ARE IN THE SPECIAL KNOWLEDGE OF THE OPPOSITE PARTY IS A LMOST OUT OF QUESTION, MATERIALS WHICH COME WITHIN THE DESCRIPTION OF CIRCUMSTANTIAL EVIDENCE O R GENERAL PROBABILITIES SUCH AS ARE TO BE REGARDED UNDER THE PROVISIONS OF SECTION 114 OF THE EVIDENCE ACT ARE EVIDENCE OR MATERIALS UPON WHICH THE COURT CAN COME TO A FINDING JUST AS PROPE RLY AS IT COULD UPON POSITIVE EVIDENCE. WE WOULD ALSO LIKE TO MENTION THE PRINCIPLE OF BUSI NESS EXPEDIENCY FOR DECIDING THE ISSUE BEFORE US.BUSINESS EXPEDIENCY HAS BEEN DISCUSSED IN THE CA SE OF J. K. PANTHAKI AND CO.(344 ITR 329) BY THE HONBLE HIGH COURT OF KARNATAKA AS UNDER: IN ORDER TO BE DEDUCTIBLE UNDER SECTION 37 OF THE INCOME-TAX ACT, 1961, THE MONEY PAID OUT MUST BE WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF THE BU SINESS AND FURTHER MUST NOT BE (I) CAPITAL EXPENDITURE, OR (II) PERSONAL EXPENSE. THE EXPENDIT URE INCURRED MUST BE FOR COMMERCIAL EXPEDIENCY.THE EXPRESSION COMMERCIAL EXPEDIENCY I S AN EXPRESSION OF WIDE IMPORT AND INCLUDES SUCH EXPENDITURE AS A PRUDENT BUSINESSMAN INCURS FO R THE PURPOSE OF BUSINESS. THE EXPLANATION TO SECTION 37 DECLARES THAT ANY EXPENDITURE INCURRED B Y AN ASSESSEE FOR ANY PURPOSE WHICH IS AN OFFENCE OR WHICH IS PROHIBITED BY LAW SHALL NOT BE DEEMED TO HAVE BEEN INCURRED FOR THE PURPOSE OF BUSINESS OR PROFESSION AND NO DEDUCTION OR ALLOWANC E SHALL BE MADE IN RESPECT OF SUCH EXPENDITURE. UNDER THE INDIAN LAW, AN AGREEMENT TO PAY ILLEGAL GRATIFICATION IS EXPRESSLY DECLARED IMMORAL AND CONSEQUENTLY SUCH AN AGREEMENT IS VOID AND NOT ENFORCEABLE. IN THIS CONTEXT, THE PHRASE PROHIBITED BY LAW USED IN THE EXPLANATION TO SECTION 37 OF THE ACT HAS WIDER CONNOTATION. IT INCLUDES EXPENDITURE INCURRED BY WAY OF PAYMENT OF BRIBE, ALTHOUGH IT IS LAID OUT OR EXPENDED WHOLLY OR EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. 2.4. AFTER CONSIDERING VARIOUS PRINCIPLES NOW WE WOULD L IKE TO APPLY THEM TO THE FACTS OF CASE UNDER APPEAL TO ARRIVE AT FINAL CONCLUSION.AT THE T IME OF HEARING BEFORE US,AR REFERRED TO CERTAIN PAPERS THAT WERE FILED IN FORM OF A PAPER BOOK.WHEN A SPECIFIC QUESTION WAS ASKED ABOUT THE AUTHENTICITY OF THE DOCUMENTS,AR ADMITTED THAT PAPE RS WERE NOT SIGNED BY ANYBODY,THAT CERTIFICATE REQUIRED BY RULE 18 OF THE ITAT,RULES,1963 WAS NOT FURNISHED NOR WAS ANY APPLICATION MADE FOR 6 ITA NO. 83/NAG/2013 BALLABHDAS UDHODAS MOHTA ADMITTING THE PAPERS AS ADDITIONAL EVIDENCE.WE FIND THAT ON THE FIRST PAGE IT IS MENTIONED THAT PAPERS WERE BEFORE THE LOWER AUTHORITIES.AO HAS SPE CIFICALLY MENTIONED THAT THE ASSESSEE DID NOT PRODUCE ANY PROOF WHATSOEVER TO SUBSTANTIATE HIS CL AIM OF EXPENSES.IN THESE CIRCUMSTANCES WE ARE UNABLE TO ACCEPT THE CONTENTION OF THE ASSESSEE THA T HE HAD PRODUCED SOME EVIDENCE BEFORE THE AO.IN THE APPELLATE PROCEEDINGS ASSESSEE DID NOT FU RNISH THE LIST OF DOCUMENTS THAT WERE PRODUCED BEFORE THE AO.FAA HAS DISCUSSED;IN PARAGRAPHS 4.3.1 3.AND 4.13.14 OF HER ORDER;THE EVENTS THAT TOOK PLACE HER.WE WOULD LIKE TO LIKE TO REPRODUCE T HE SAID PARAGRAPHS OF HER ORDER,WHEREIN SHE HAS HELD AS UNDER: 4.3.13.THE APPELLANT WAS REQUESTED TO PRODUCE DETA ILS OF EXPENSES INCURRED.ONE OF THE CRUCIAL INFORMATION REQUIRED WAS THE DETAILS OF EXPENSES AN D NATURE OF EXPENSES.THE SAID INFORMATION HAS NOT BEEN PRODUCED.WITHOUT THE SAID INFORMATION AND DETAILS,IT IS IMPOSSIBLE TO FIND OUT THE TRUE NATURE OF THE EXPENSES AND ITS COMMERCIAL EXPEDIENC Y FOR EARNING THE INCOME. IN SPITE OF REPEATED DEMANDS, THE SAME HAVE NOT BEEN PRODUCED, AND IT LE AVES ME WITH NO OPTION BUT TO DRAW AN ADVERSE INFERENCE AGAINST THE APPELLANT, SINCE IT CLEARLY AMOUNTS TO WITHHOLDING OF THE BEST EVIDENCE , EVEN ASSUMING THAT THE ONUS OF PROOF DOES NOT LIE ON THE APPELLANT. 4.3.14.APPLYING BOMBAY HIGH COURT IN VODAFONE (SUPR A),IT IS HELD THAT EVEN IF THE BURDEN OF FURNISHING THE INFORMATION DOES NOT LIE ON THE APPE LLANT, THE APPELLATE AUTHORITY MAY DRAW AN ADVERSE INFERENCE IF THE APPELLANT WITHHOLDS THE IM PORTANT INFORMATION AND DOCUMENTS IN HIS POSSESSION WHICH CAN THROW LIGHT ON THE FACTS AT IS SUE. IT IS NOT A SOUND PRACTICE FOR THOSE DESIRING TO RELY UPON A CERTAIN STATE OF FACTS TO WITHHOLD F ROM THE APPELLATE AUTHORITY THE BEST EVIDENCE WHICH IS IN THE POSSESSION WHICH COULD THROW LIGHT UPON THE ISSUES IN CONTROVERSY AND TO RELY UPON THE ABSTRACT DOCTRINE OF ONUS OF PROOF. AS PER THE FAA,ASSESSEE DID NOT AVAIL REPEATED OPPO RTUNITIES OFFERED BY HER TO PRODUCE THE NECESSARY DOCUMENTS IN SUPPORT OF HIS CLAIM. 2.4.A. CONSIDERING THE CATEGORICAL FINDING OF FACTS GIVEN BY THE AO AND THE FAA,WE ARE OF THE OPINION THAT ASSESSEE HAD NOT PRODUCED ANY EVIDENCE ;INCLUDING THE PAPERS SUBMITTED BEFORE US; BEFORE ANY OF THE AUTHORITIES.PAPERS SUBMITTED BEFO RE US ALSO,AS STATED EARLIER,ARE NOT AS PER THE LEGAL REQUIREMENTS.MOST IMPORTANTLY,THEY DO NOT THR OW LIGHT ON THE BASIC ISSUE AS TO HOW THEY PROVE THAT EXPENDITURE INCURRED,IF ANY,WAS DIRECTLY RELATED TO THE BUSINESS OR PROFESSION OF THE ASSESSEE.HE HAS STATED THAT HE HAD TO GET THE FILES CLEARED AT THE STATE AND NATIONAL LEVEL I.E.FILES OF THE COMPANY THAT WERE PENDING BEFORE THE STATE GOVE RNMENT AND GOVERNMENT OF INDIA. IT IS A KNOWN FACT THAT AT BOTH LEVELS LIASONING IS PROHIBI TED. IF ASSESSEE HAD MADE PAYMENT,AS STATED BY THE FAA,FOR ILLEGAL GRATIFICATION SAME COULD NOT BE ALLOWED UNDER THE PROVISIONS OF THE ACT.WE ALSO FIND THAT HE HAS NOT SPECIFIED THE SERVICES TH AT WERE RENDERED TO HZL.IN TODAYS BUSINESS WORLD,NO ONE WOULD MAKE PAYMENT OF RS.1.80 CRORES(A PP.)AND WITHOUT WITHOUT GETTING SOME SERVICES.ASSESSEE WAS THE ONLY PERSON WHO KNEW AS W HAT SERVICES HE HAD RENDERED TO HZL.HE HAS NOT PRODUCED EVEN A SINGLE PAPER,ADDRESSED TO HZL,E VIDENCING THE INFORMATION GIVEN BY HIM TO THE COMPANY ABOUT THE PROGRESS OF WORK/WORK DONE BY HIM DURING THE PERIOD UNDER APPEAL.IN OTHER WORDS HERE IS A PARTY WHO WAS IN POSSESSION O F BEST EVIDENCE WHICH WOULD THROW LIGHT ON HIS ISSUE IN CONTROVERSY,BUT HE WITHHELD IT,THEREFO RE REVENUE AUTHORITIES WERE JUSTIFIED IN DRAWING ADVERSE INFERENCE AGAINST HIM.THIS RULE OF EVIDENCE HAS BEEN ADOPTED BY US, BECAUSE IT IS BUT JUST THAT HE WHO INVOKES THE AID OF THE LAW SHOULD BE TH E FIRST TO PROVE HIS CASE; AND PARTLY BECAUSE IN THE NATURE OF THINGS,A NEGATIVE IS MORE DIFFICULT T O ESTABLISH THAN AN AFFIRMATIVE.IN THE MATTER BEFORE US,ONLY THE ASSESSEE KNEW THAT WHAT WAS THE NATURE OF THE EXPENDITURE INCURRED AND WHAT WAS THE RELATION OF THE EXPENDITURE AND HIS BUSINES S.INSPITE OF POSSESSION OF VITAL INFORMATION,HE CHOOSE NOT TO PRODUCE ANYTHING IN HIS FAVOUR.HIS NO N DISCLOSURE OF IMPORTANT AND DECISIVE PIECES OF INFORMATION COMPELLED THE AO AND FAA TO RAISE A PRESUMPTION THAT EXPENDITURE WAS NOT INCURRED WHOLLY AND EXCLUSIVELY FOR THE BUSINESS PU RPOSES.IN OUR OPINION THEY WERE TOTALLY JUSTIFIED IN DISALLOWING THE CLAIM MADE BY THE ASSE SSEE. BESIDES,RENDERING OF SERVICES IS THE FIRST AND FORE MOST CONDITION WHERE AN ASSESSE CLAIMS THAT HE WAS DOING SOME JOB ON BEHALF OF OTHER PERSON.IT IS ALSO NOTEWORTHY THAT HE ADMITTED THAT THERE WAS NO AGREEMENT BETWEEN HIM AND THE COMPANY ABOUT THE SERVICES TO BE RENDERED.IT WILL BE USEFUL TO 7 ITA NO. 83/NAG/2013 BALLABHDAS UDHODAS MOHTA TAKE NOTICE OF THE ANSWERS GIVEN BY THE ASSESSEE,WH ILE HIS STATEMENTS WERE RECORDED BY THE AO.WE ARE REPRODUCING THE RELEVANT QUESTION-ANSWERS ,RECORDED BY THE AO, DURING THE COURSE OF ASSESSMENT PROCEEDINGS: Q.NO.9 :SPECIFY THE NATURE OF SERVICES RENDERED THE BASIS ON WHICH CONSULTANCY RECEIPTS HAVE BEEN COMPUTED AND SPECIFICALLY WITH RESPECT TO WHOM SUC H SERVICES HAVE BEEN RENDERED TO HINDUSTAN ZINC LTD. ANS. THE FEE WAS PAID BY HINDUSTAN ZINC LTD. FOR FOLLOWI NG UP THEIR PROJECTS WITH VARIOUS DEPARTMENTS TO SEEK CLEARANCES OF DIFFERENT ASPECTS SUCH AS DRAWING AND OTHER TECHNICAL CLEARANCES FOR WHICH LUMP-SUM FEES WAS PAID BY THEM . THERE WAS NO FORMAL AGREEMENT AS SUCH WITH HINDUSTAN ZINC LTD.AS REGARDS TO THE COMPUTATI ON BASIS OF THE CONSULTANCY RECEIPTS THE PAYMENT WAS MADE ON LUMP-SUM BASIS FOR THE SERVICES RENDERED. SO FAR AS THE SPECIFIC PARTIES IS CONCERNED VARIOUS DEPARTMENTS IN RAJASTHAN GOVT. AN D IN CENTRAL GOVT. Q.NO.11: WHETHER ANY DOCUMENT MAINTAINED WITH REGARD TO THE SERVICES RENDERED AND EXPENSES INCURRED IN CONNECTION WITH SERVICES RENDERED? ANS .:NO ACCOUNTS/DOCUMENTS ARE MAINTAINED BY ME WITH R EGARD TO THE SERVICES RENDERED AND EXPENSES INCURRED. Q.NO. 12:SPECIFY THE NATURE OF EXPENSES INCURRED AND APPR OXIMATE EXPENSES UNDER EACH SUCH HEAD? ANS. AS I HAVE NOT MAINTAINED THE BOOKS OF ACCOUNTS.I AM NOT IN A POSITION TO GIVE DETAILS OF EXPENSES SPECIFIC HEAD-WISE.HOWEVER,I SUBMIT THAT E XPENSES WERE MADE FOR TRAVELLING, LODGING, BOARDING FOR GETTING TECHNICAL AND LEGAL HELP.THE T OTAL EXPENSES INCURRED TO EXECUTE WORK WAS TO THE TUNE OF 80% OF RECEIPTS FROM CONSULTANCIES Q.NO.13 :WHAT IS THE BASIS OF ADOPTING 20% AS THE PROFIT EA RNED ON THE PROFESSIONAL / CONSULTANCY ACTIVITY? ANS. THE 20% AS THE PROFIT EARNED ON CONSULTANCY ACTIVIT Y WAS ON ESTIMATE BASIS. FROM THE ABOVE QUESTIONS AND ANSWERS IT BECOMES CLE AR THAT THERE WAS NO BASIS FOR MAKING A CLAIM THAT HE HAD INCURRED 80% OF THE RECEIPTS FOR CARRYI NG OUT HIS BUSINESS. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE UNDER CONSIDERATION WE ARE OF THE OPINION THAT ASSESSEE HAD NOT PROVED THE FACT OF INCURRING EXPEN DITURE WHOLLY AND EXCLUSIVELY FOR BUSINESS PURPOSES.HE HAS FAILED MISERABLY IN DISCHARGING THE ONUS CAST UPON HIM BY ESTABLISHED PRINCIPLES OF TAX JURISPRUDENCE.HE HAS NOT PROVED THAT THERE W AS BUSINESS EXPEDIENCY IN MAKING THE SAID PAYMENTS.THEREFORE WE HOLD THAT FIRST TWO QUESTION RAISED BY AS PARAGRAPH 2.3 HAVE TO DECIDED AGAINST THE ASSESSEE.AS A RESULT,WE HAVE NO HESITAT ION IN CONFIRMING THE ORDER OF THE FAA IN THIS REGARD.GROUND NO.1 IS DECIDED AGAINST THE AO. 3. NEXT GROUND OF APPEAL IS ABOUT TREATING THE SERVICE TAX OF RS 22,49,520/- RECEIVED AS INCOME OF THE ASSESSEE.DURING THE ASSESSMENT PROCEEDINGS,AO N OTICED THAT IN ADDITION TO THE CONSULTANCY FEES RECEIVED,ASSESSEE HAD ALSO RECEIVED RS.22,49,5 20/ FROM HZL,THAT FROM THE ICICI BANK- ACCOUNT RECEIPT OF ABOVE AMOUNT WAS PROVED.AS THE R ECEIPT WAS NOT REFLECTED IN THE RETURN OF INCOME FILED BY THE ASSESSEE,SO HE ASKED HIM TO FUR NISH EXPLANATION IN THIS REGARD.IN RESPONSE,THE ASSESSEE,VIDE HIS LETTER DTD. 13/12/2011,STATED THA T THE SAID AMOUNT HAD BEEN RECEIVED FROM HZL.BY HIS LETTER DATED,16/12/20,ASSESSEE STATED TH E CORRECT FIGURE OF RECEIPT FORM HZLWAS RS. 2,04,49,520/- AND NOT 1.82 CRORES.AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE,AO HELD THAT IN HIS STATEMENT U/S.131 RECORDED ON 02 / 12/2011 THE ASSESSEE HAD CATEGORICALLY STATED THAT HIS CONSULTANCY RECEIPTS FROM HZL WAS RS. 1.82 CRORES O NLY,THAT WHEN HE WAS CONFRONTED WITH ENTRY OF RS.22,49,520/-;BEING RECEIPT FROM HZL IN THE BAN K ACCOUNT WITH ICICI BANK; HE CLAIMED THAT THE AGGREGATE RECEIPT FROM THE COMPANY WAS RS.2,04, 49,520/-,THAT THE AMOUNT IN QUESTION WAS NOTICED DURING THE SCRUTINY PROCEEDINGS,THAT THE SA ID AMOUNT OF RS.22,49,520/-WAS TO BE ADDED BACK TO HIS INCOME. 3.1. ASSESSEE PREFERRED AN APPEAL BEFORE THE FAA.IT WAS SUBMITTED BY THE ASSESSEE THAT THE SAID AMOUNT WAS SERVICE TAX RECEIVED FROM HZL.FAA HELD T HAT THE ASSESSEE HAD NOT PRODUCED ANY 8 ITA NO. 83/NAG/2013 BALLABHDAS UDHODAS MOHTA DETAILS FOR PAYMENT OF SERVICE TAX OF RS.22,49,520/ - NEITHER AT THE TIME OF ASSESSMENT PROCEEDING NOR AT THE TIME OF APPELLATE PROCEEDING,THAT THE CL AIM OF RS,22,49,520/- COULD NOT BE ENTERTAINED. 3.2. BEFORE US,AR SUBMITTED THAT AMOUNT IN DISPUTE REPRE SENTED SERVICE TAX RECEIVED BY THE ASSESSEE FROM HZL,THAT SEVICE TAX WAS PAID BY THE A SSESSEE.DR SUPPORTED THE ORDER OF THE FAA. 3.3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT THE ASSESSEE HAS CHANGED HIS STAND ABOUT THE AMOUNT IN QUESTION.INITIALLY HE CLAIMED THAT HE HAD RECEIVED RS.1.82 CRORES FROM HZL AS CONSULTANCY FEE S,BUT WHEN THE AO CONFRONTED HIM WITH THE DETAILS OF THE ICICI BANK HE STATED THAT TOTAL CONS ULTANCY CHARGES WERE OF RS.2.04 CRORES.BUT BEFORE THE FAA IT WAS CLAIMED BY HIM THAT AMOUNT RE PRESENTED SERVICE TAX.THUS,ASSESSEE HIMSELF IS CONTRADICTING HIMSELF.THOUGH,IT WAS CLAIMED THAT THE SUM WAS SERVICE TAX,YET PAYMENT OF SERVICE TAX WAS NOT PRODUCED BEFORE THE FAA OR BEFO RE US.IN THESE CIRCUMSTANCES ARGUMENT TAKEN BY THE ASSESSEE IS WITHOUT ANY EVIDENCE.IN OUR OPIN ION,IN THE MATTER UNDER APPEAL IT WAS DUTY OF THE ASSESSEE TO PROVE THAT SUM RECEIVED BY HIM,AMOU NTING TO RS.22.49 LAKHS WAS PAID TO HIM BY HZL FOR PAYMENT OF SERVICE TAX AND THAT HE HAS ACTU ALLY PAID THE SERVICE TAX.AS THE ASSESSEE HAS NOT ESTABLISHED BOTH THE FACTS,SO, CONFIRMING THE O RDER OF THE FAA WE DISMISS GROUND NO.2 AGAINST THE ASSESSEE. AS A RESULT,APPEAL FIL ED BY THE ASSESSEE STANDS DISMISSED. 5 /6 #5/ 7 2 8 '9 ' / : . ORDER PRONOUNCED IN T HE OPEN COURT ON 10 TH MARCH,2014. 2!3 1* ! ( 10 %# , 2014 . SD/- SD/- (H.L.KARWA/ % %% % . . ) ( '!() '!() '!() '!() / RAJENDRA) PRESIDENT/ '& ! ! ! ! 24 24 24 24 /ACCOUNTANT MEMBER / MUMBAI, 2 /DATE: 10.03.2014 SK 2!3 2!3 2!3 2!3 -/ -/ -/ -/ ;!*/ ;!*/ ;!*/ ;!*/ / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / +, 2. RESPONDENT / -.+, 3. THE CONCERNED CIT(A)/ < = , 4. THE CONCERNED CIT / < = 5. DR ITAT,NAGPUR BENCH/ > -/ , . . ( . - . 6. GUARD FILE/ # ? . . / -/ //TRUE COPY// 2!3 / BY ORDER, @ / ' DY./ASST. REGISTRAR , /ITAT, MUMBAI.