Sh. Subhash Chander Malik, Chandigarh V. DCIT, Chandigarh

MA 61/CHANDI/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0447 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 1 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-06-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 07-06-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 03-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR
• Assessee Lawyers: A K SOOD
• Keywords: Bogus purchase; Depreciation; Business expenditure; Commercial expediency
• Section: 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER MA NO. 61/CHD/2012 IN ITA NO. 1107/CHD/2010 ASSESSMENT YEAR: 2007-08 SH. SUBHASH CHANDER MALIK, VS. THE DCIT, SECTOR 8- B CIRCLE 1 (1), CHANDIGARH CHANDIGHARH PAN NO. AETPM-3295A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K. SOOD RESPONDENT BY : SHRI J.S. NAGAR DATE OF HEARING : 07/06/2013 DATE OF PRONOUNCEMENT : 21/06/2013 ORDER PER T.R.SOOD, A.M. THIS MISC. APPLICATION IS ARISING OUT OF ITA NO. 11 07/CHD/2010, ORDER DT. 17/02/2012. 2. IN THIS MISC. APPLICATION THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT ASSESSEE HAD FILED REVISED GROUNDS DURING THE HEARING THROUGH WHICH 4 DISPUTES WERE RAISED WHICH ARE IDENTICAL TO THE 4 D ISPUTES RAISED THROUGH ORIGINAL GROUNDS. HOWEVER, THE TRIBUNAL HAS PASSED ITS ORDER WITHOUT 2 CONSIDERING THE REVISED GROUNDS. THE LD. COUNSEL FU RTHER SUBMITTED THAT THE TRIBUNAL HAS NOT CONSIDERED THE WRITTEN SUBMISSIONS FILED DURING THE HEARING. HE PARTICULARLY SUBMITTED THAT ADDITION ON ACCOUNT OF COMMISSION HAS BEEN CONFIRMED UNDER SECTION 4(A)(2) AND UNDER SECTION 3 7 WHEREAS COMMISSION IS TO BE ALLOWED UNDER SECTION 36. THE DISALLOWANCE UN DER SECTION 40 A (2B) CAN BE MADE ONLY IF AO IS ABLE TO BRING TO RECORD COMPA RABLE FIGURE FOR EXCESSIVE EXPENDITURE. IN VIEW OF THESE ERRORS HE SOUGHT RECA LLING OF THE ORDER ON THIS ISSUE. 3. ON THE OTHER HAND LD. DR SUBMITTED THAT TRIBUNAL HAS ADJUDICATED ALL THE ISSUES IN DETAIL BY GIVING REASONS IN VARIOUS P ARAGRAPHS. THE ASSESSEE IS SEEKING REVIEW OF ORDERS WHICH IS NOT PERMISSIBLE U NDER LAW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY. FIRST OF ALL WE FIND THAT IN THE ORIGINAL FOLDER NO REVISED GROUNDS ARE AVAILABLE AND THIS FACT WAS POINTED OUT TO THE LD. COUNSEL OF THE ASSESSEE WHO ALSO VERIFIED THE RECORDS AND ADMITTED THAT SUCH REVISED GROUNDS ARE NOT AVAI LABLE. FURTHER, WE FIND THERE IS HARDLY ANY DIFFERENCE IN THE ORIGINAL GROUND AND REVISED GROUNDS. FOR THIS, WE REPRODUCE THE CONTENT S OF MISC. APPLICATION WHICH ARE AS UNDER. THE ASSESSEE FILED AN APPEAL NO. 1107/CHD/2010 BEF ORE THIS HONBLE B BENCH ON 23.08.2010 AGAINST THE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS), CHANDIGARH U/ S 250(6) OF THE INCOME TAX ACT, 1961 DATED 17.06.2010. 3 IN THIS APPEAL, THE ASSESSEE RAISED THE FOLLOWING G ROUNDS OF APPEAL: 1. THE LD. CIT(A) CHANDIGARH LUDHIANA ERRED IN LAW AND ON THE FACTS OF THE CASE: A) IN UPHOLDING THE ADDITION OF RS. 42,48,003/- ON ACCOUNT OF CASH PURCHASES OF OLD SILVER, MADE BY TH E AO HOLDING THE SAME AS BOGUS WITHOUT APPRECIATING THE ASSESSEES SUBMISSION SPECIALLY WHEN THE PURCHASES HAD BEEN ACCOUNTED FOR EITHER IN SALES OR IN THE CLOSING STOCK. B) IN UPHOLDING DISALLOWANCE OF RS. 10,50,806/- OUT OF TOTAL RENT PAID AT RS. 14,40,000/- U/S 40A(2) WITHO UT APPRECIATING THE ASSESSEES SUBMISSIONS ON THIS REGARD. C) IN UPHOLDING DISALLOWANCE OF RS. 16 LACS AS COMMISSION U/S 40A(2) WITHOUT APPRECIATING ASSESSEES SUBMISSIONS IN THIS REGARD. D) IN UPHOLDING DISALLOWANCE OF RS. 68,805/- OUT OF CA R FIXED AND RUNNING EXPENSES AND TELEPHONE EXPENSES. 2. THE ASSESSEE CRAVES LEAVE TO AMEND / ADD ANY GRO UND OF APPEAL BEFORE THE SAME IS HEARD. THE ASSESSEE SUBSEQUENTLY FILED REVISED GROUNDS OF APPEAL ALONG WITH WRITTEN SUBMISSIONS ON 05.12.2012 BEFORE THIS HONBLE BENCH. THE REVISED GROUNDS OF APPEAL ARE ENUMERATED BELOW; 1. THAT THE ORDERS OF THE COMMISSIONER OF INCOME TAX ( APPEALS) ARE CONTRARY TO LAW AND THE FACTS OF THE APPELLANT S CASE BY UPHOLDING THE ADDITIONS MADE BY THE LD AO. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN UPHOLDING THE ADDITIONS OF RS. 16,00,000/- OUT O F COMMISSION PAID TO PERSONS COVERED U/S 40A(2)(B) OF THE INCOME TAX ACT, 1961 NOT BEING THE EXPENDITURE IN T HE NATURE OF WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINE SS U/S 37 OF THE INCOME TAX ACT, 1961 WITHOUT APPRECIATION THE F ACT THAT THE SAID EXPENDITURE DOES NOT FALL UNDER SECTION 37 . 3. THAT THE LD COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN UPHOLDING THE ADDITIONS OF RS. 10,50,806/- OUT O F TOTAL RENT 4 OF RS. 14,40,000/- DISALLOWING THE EXCESS RENT PAID OVER AND ABOVE THE RENT PAID IN THE LAST YEAR NOT BEING THE EXPENDITURE IN THE NATURE OF WHOLLY AND EXCLUSIVELY FOR THE PUR POSE OF BUSINESS U/S 37 OF THE INCOME TAX ACT, 1961 WITHOUT APPRECIATION THE FACT THAT THE SAID EXPENDITURE DOE S NOT FALL UNDER SECTION 37 AND FIRST FLOOR AND SECOND FLOORS OF THE SAME BUILDING WERE ALSO ADDITIONALLY TAKEN ON RENT DURIN G THE CURRENT YEAR. 4. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN UPHOLDING THE ADDITIONS OF RS. 42,48,003/- ON AC COUNT OF CASH PURCHASES OF OLD SILVER MADE BY THE ASSESSING OFFICER HOLDING THE SAME AS BOGUS PURCHASES WITHOUT APPRECI ATING THE FACTS THAT SUCH PURCHASES OF OLD SILVER WERE MAINLY MADE FROM THE PERSONS TO WHOM SALES WERE MADE AND QUANTITATIV E TALLY OF STOCK WAS SUBMITTED TO THE ASSESSING OFFICER, NO DE FECTS WERE POINTED OUT IN THE BOOKS OF ACCOUNTS AND BOOKS OF A CCOUNTS HAVE NOT BEEN REJECTED. 5. THAT THE LD. ASSESSING OFFICER HAS ERRED IN DISALLO WING 1/5 TH EXPENSE AMOUNTING TO RS. 68,805/- OUT OF TOTAL EXPE NSES OF RS. 3,44,025/- DEBITED IN CAR REPAIR, DRIVER SALARY, IN TEREST ON CAR LOAN, PETROL EXPENSES, CAR INSURANCE AND ROAD T AX, CAR DEPRECIATION AND TELEPHONE EXPENSES. 6. FOR THESE AND OTHER REASONS THAT MAY BE URGED AT TH E TIME OF HEARING THE APPELLANT PRAYS FOR ITSELF. THE CASE WAS FINALLY HEARD ON 23.01.2012. DURING TH E COURSE OF HEARING RELIEF ON ACCOUNT OF POINT NO. 4 ABOVE PERTAINING TO CASH PURCHASES OF RS. 42,48,003/- WAS CONTEMPLATED AND ON ACCOUNT OF POINT NO. 2 PERTAINI NG TO COMMISSION PAID TO THE RELATIVES A RELIEF OF RS. 4. 00 LACS WAS CONTEMPLATED AND ON POINT NO. 5 THE DISALLOWANCE ON ACCOUNT OF PERSONAL USE WAS CONTEMPLATED TO BE RESTRICTED TO 1 /10 TH . WE HAVE RECEIVED FINAL ORDER OF THE HONBLE BENCH W HEREIN REVISED GROUND OS APPEAL ALONG WITH OUR WRITTEN SUB MISSIONS HAVE NOT INADVERTENTLY BEEN CONSIDERED WHILE FRAMING THE ORD ER AND THE ORDER HAS BEEN PASSED BY TAKING INTO CONSIDERATION ORIGIN AL GROUNDS OF APPEAL. IN THE ORDER THE ASSESSEE HAS BEEN ALLOWED A RELIEF OF RS. 42,48,003/- ON ACCOUNT OF PURCHASES ONLY. NO OTHER RELIEF AS CONTEMPLATED AT THE TIME OR HEARING FINDS PLACE IN THE FINAL ORDER. THE 5 CIRCUMSTANCE UNDER WHICH ORDER HAS BEEN PASSES FALL S UNDER THE PURVIEW OF SECTION 254(2) OF THE INCOME TAX ACT, 19 61 AS THERE IS AN ERROR APPARENT FROM THE RECORDS. IT IS HUMBLY REQUESTED THAT THE ORDERS DATED 17.02. 2012 PASSED BY THIS HONBLE BENCH BE AMENDED. 4. OUT OF THE ABOVE, GROUND NO. 1 OF THE ORIGINAL G ROUNDS PERTAIN TO ADDITION OF RS. 42,48,003.00 ON ACCOUNT OF BOGUS PU RCHASE WAS DECIDED IN FAVOUR OF THE ASSESSEE VIDE PARA 6 OF THE ORDER OF TRIBUNAL. THERE IS HARDLY ANY DIFFERENCE IN RESPECT OF GROUND 1(C) OF THE ORI GINAL GROUND AND GROUND 2 OF THE REVISED GROUND BECAUSE ISSUE REMAINED IN RES PECT OF DISALLOWANCE OF COMMISSION AMOUNTING TO RS. 16 LACS THIS ISSUE HAS BEEN ADJUDICATED BY THE TRIBUNAL VIDE PARA 11 TO 14 WHICH ARE AS UNDER: 11. WE HAVE CAREFULLY PERUSED THE RIVAL SUBMISSI ONS AND FOUND THAT SHRI SUBHASH CHANDER MALIK, PROPRIETOR SUBHASH JEWE LLERS, SCF 32, SECTOR 8B, CHANDIGARH, HAD CLAIMED EXPENSES IN THE SHAPE OF COMMISSION AMOUNTING TO RS.16 LACS, PAID TO HIS SON S, DAUGHTER-IN-LAW AND DAUGHTER, NAMELY DEEPAK MALIK, RAMESH MALIK AND MUKESH MALIK (SONS) AND SARIKA MALIK, (DAUGHTER-IN-LAW) AND RAMA MALIK (DAUGHTER). THE CHART INDICATING DETAILS OF SUCH PA YMENTS, IS REPRODUCED, IN PARA 4 OF THE ORDER OF THE CIT(A), W HICH IS REPRODUCED HEREUNDER : COMMISSION ON SALE PAID ON 31.3.2007 NAME GROSS AMOUNT DEEPAK MALIK RS.2,40,000/- RAMESH MALIK RS.2,40,000/- 6 MUKESH MALIK RS.2,40,000/- SARIKA MALIK RS.4,40,000/- RAMA MALIK RS.4,40,000/- TOTAL : RS.16,00,000/- 12. IT IS UNDISPUTED FACT THAT THE ASSESSEE HAD PAID RS .4,80,000/-, AS SALARY, AS ALSO THE IMPUGNED COMMISSION TO EACH OF THE ABOVE CLOSELY RELATED PERSONS. A COMPARISON OF THE COMMISSION PAID VIZ-A-VIZ SALA RY PAID BY THE ASSESSEE TO HIS SONS, DAUGHTER AND DAUG HTER-IN-LAW, CLEARLY INDICATES THAT RS.2,40,000/- AND RS.4,80,000/- RESP ECTIVELY, THE ASSESSEE HAD MERELY ADOPTED A DEVICE TO REDUCE HIS TAXABLE INCOME. THE ASSESSEE HAS FAILED TO DISCHARGE THE BURDEN CAS T ON HIM TO PROVE THE GENUINENESS OF THE EXPENDITURE CLAIMED AS 3COMM ISSION PAID TO SUCH PERSONS. 13. IN GROUND NO. 1(C), THE ASSESSEE CONTENDED THAT CIT(A), ERRED IN UPHOLDING DISALLOWANCE OF RS.16 LACS PAID AS COMMIS SION U/S 40A(2) WITHOUT APPRECIATING THE FACTS AND SUBMISSIONS IN T HIS REGARD. A PERUSAL OF THE CHART INDICATING COMMISSION ON SALE PAID AS ON 31.3.2007, BY THE ASSESSEE TO HIS SONS, DAUGHTER AN D DAUGHTER-IN-LAW REVEALS THAT TOTAL COMMISSION HAS BEEN PAID AT RS.1 6 LACS. THE ASSESSEE IS MAKING PAYMENT OF SUCH COMMISSION TO HIS SONS, D AUGHTER AND DAUGHTER-IN-LAW ALONGWITH SALARY OF RS.4,80,000/-, TO SUCH PERSONS. THE ASSESSEE HAS FAILED TO ADDUCE COGENT AND CREDIB LE EVIDENCE, ESTABLISHING THE GENUINENESS OF THE COMMISSION PAID . HE HAS, FURTHER, FAILED TO ADDUCE EVIDENCE REGARDING TECHNICAL QUALI FICATION OF SUCH RECIPIENTS, WHICH MADE THE ASSESSEE TO MAKE SUCH PA YMENTS OF COMMISSION TO HIS SONS, DAUGHTER AND DAUGHTER-IN-LA W. MERE EVIDENCE OF TDS IS NOT ENOUGH TO ESTABLISH THE GENUINENESS O F SUCH CLAIM MADE BY THE ASSESSEE. THE FINDINGS OF THE LD. CIT(A), ON THE ISSUE IN QUESTION, AS CONTAINED IN PARA 7 ARE REPRODUCED HE REUNDER : 7 7 AFTER HAVING CONSIDERED THE RIVAL CONTENTIONS AN D MATERIAL ON RECORD, I AM INCLINED TO AGREE WITH THE ASSESSING OFFICER. FOLLOWING IS MY JUSTIFICATION FOR AGREEING AFTER RELYING ON THE FOLLOWING 3 CASES : (I) IN THE CASE OF NUND AND SMOUNT CO PVT. LTD. VS . CIT [SC] 78 ITR 268, THE HON'BLE APEX COURT WHILE DEALING THE PROVI SIONS OF SECTION 10(4A), NOW SECTION 40A,.HELD THAT 'IT IS, HOWEVER, FOR THE TAXPAYER TO ESTABLISH -BY EVIDENCE THAT A PARTICULAR ALLOWANCE IS JUSTIFIABLE. APPARENTLY, NO EVIDENCE W AS TENDERED BY THE ASSESSEE RELATING TO THE DUTIES OF THE MANAGING DIR ECTOR AND THE DEPUTY MANAGING DIRECTOR, THE SERVICES RENDERED BY THEM, T HE MANNER IN WHICH THE PROFITS EARNED BY THE ASSESSEE WERE ENHANCED BY REA SON OF THEIR SPECIAL APTITUDE OR QUALIFICATIONS, THE LEGITIMATE BUSINESS NEEDS OF THE ASSESSEE AND THE BENEFIT DERIVED BY OR ACCRUING TO THE ASSESSEE IN CONSEQUENCE OF THE SERVICES RENDERED BY THE MANAGING DIRECTOR AND THE DEPUTY MANAGING DIRECTOR. IN THE ABSENCE OF ANY SUCH EVIDENCE, THE FINDING RECORDED BY THE INCOME-TAX OFFICER AND CONFIRMED BY THE APPELLATE A SSISTANT COMMISSIONER AND THE TRIBUNAL MUST BE ACCEPTED. WE ARE UNABLE TO AGREE WITH COUNSEL FOR THE ASSESSEE THAT EVEN IF THE TAXPAYER DOES NOT PRO DUCE ANY EVIDENCE IN SUPPORT OF THE CLAIM FOR ALLOWANCE, THE INCOME-TAX OFFICER MUST INDEPENDENTLY COLLECT EVIDENCE AND DECIDE THAT THE ALLOWANCE CLAIMED IS EXCESSIVE OR UNREASONABLE HAVING REGARD TO THE LEGI TIMATE BUSINESS NEEDS OF THE ASSESSEE BEFORE THE POWER UNDER SECTION 10(4A) MAY BE EXERCISED. ' (II) IN THE CASE OF SYNPRO INDS. VS. CIT [1984] 40 CTR 106 [MP], IT HAS BEEN HELD THAT 'BUSINESS EXPENDITURE - DISALLOWANCE U/S 40A(2) -A FIRM PAID COMMISSION OF RS. 12000/- IN ADDITION TO SALARY TO THE HUSBAND OF ONE OF THE PARTNERS. SINCE NO AGREEMENT FOR PAYMENT OF COMMISSION WAS EXECUTED DURING THE PREVIOUS YEAR - DISALLOWANCE WAS HELD TO BE JUSTIFIED. ' (III) IN CASE OF GANESH SOAP WORKS VS. CIT [1987] 5 9 CTR [MP] 109, THE HON'BLE HIGH COURT HELD THAT IF TRIBUNAL FINDS THE AMOUNT CLAIMED AS PAYMENT OF COMMISSION EXCESSIVE OR UNREASONABLE HAV ING REGARD TO SERVICES 8 OR FACILITIES RENDERED TO THE ASSESSEE, DISALLOWANC E ON THE GROUND THAT IT DOES NOT .SATISFY TEST OF COMMERCIAL EXPEDIENCY IS JUSTIFIED. - THE APPELLANT IS SELLING SILVER JEWELLERY AND UTENS ILS AND NOTHING HAS BEEN PRODUCED EITHER DURING THE ASSESSMENT PROCEEDINGS O R APPELLATE PROCEEDINGS TO ESTABLISH THE KIND OF SERVICES PROVIDED BY THE P ERSONS TO WHOM HUGE AMOUNTS' OF COMMISSION HAVE BEEN PAID. FURTHER THE NATURE OF THE BUSINESS OF THE APPELLANT IS ALSO NOT COMMENSURATE WITH SUCH PA YMENTS SINCE IN JEWELLERY BUSINESS, CUSTOMERS NORMALLY PURCHASES AS PER NEEDS AND DEMAND. IN A RETAIL BUSINESS OF SELLING SILVER JEWELLERY, THE NEED FOR PAYING COMMISSION TO SPECIFIED PERSONS IS UNCOMPREHENSIBLE. - NO AGREEMENT OF ANY SORT IS ON RECORD TO JUSTIFY SU CH PAYMENTS. - THE APPELLANT'S CONTENTION THAT TAX ON COMMISSION H AS BEEN DULY PAID BY THE RECIPIENTS IS OF NO CONSEQUENCE SINCE AS RIGHTLY PO INTED OUT BY THE ASSESSING OFFICER IN THE REMAND REPORT DATED 13.05.2010 THAT THIS EXPENDITURE HAS BEENBEEN DENIED SINCE IT WAS WHOLLY & EXCLUSIVELY F OR BUSINESS PURPOSE AND NOT BECAUSE THIS WAS NOT TAXED IN THE HANDS OF THE RECIPIENT. 8. IN VIEW OF THE ABOVE DISCUSSION, THIS GROUN D OF THE ASSESSEE IS DISMISSED. 14. IT IS INTERESTING TO NOTE THAT THE ASSESSEE HAD PAID COMMISSION @ RS.2,40,000/-, TO HIS SONS AND @ RS.4,40,000/- TO H IS DAUGHTER AND DAUGHTER-IN-LAW. THE AO HELD THAT PAYMENT OF SUCH CLAIM IS UNREALISTIC AND UNREASONABLE AND INVOKED THE PROVISIONS OF SECT ION 40A(2)(B) OF THE ACT. IT WAS OBSERVED BY THE LD. 'AR' THAT NO R EGULAR PAYMENT OF COMMISSION WAS MADE BY THE ASSESSEE, DURING THE ENT IRE YEAR. IT WAS, FURTHER, FOUND BY THE AO THAT THE COMMISSION HAD BE EN PAID TO THE PERSONS, WHOSE SALARY HAD BEEN INCREASED TO ALMOST DOUBLE WHICH IS QUITE UNREALISTIC AND UNBELIEVABLE. THE ASSESSEE H AD FAILED, TO FILE ANY EXPLANATION OR SUBMISSION BEFORE THE AO. SIMILARLY, NO AGREEMENT OF PAYMENT CREATING OBLIGATION, ON THE PART OF THE ASS ESSEE TO MAKE SUCH PAYMENT HAS BEEN FURNISHED BEFORE THE AO. THE AO, FURTHER, MENTIONED THAT THE ASSESSEE FAILED TO OFFER ANY EXPLANATION R EGARDING SPECIFIC 9 QUERY RAISED BY HIM THAT THE COMMISSION HAD BEEN CR EATED ON THE LAST DATE OF THE YEAR. THEREFORE, THE AO DISALLOWED PAY MENT OF SUCH COMMISSION HOLDING THAT SUCH EXPENDITURE HAS NOT BE EN INCURRED FOR WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. THE LD. CIT(A), PLACED RELIANCE ON THE THREE DECISIONS, AS IS EVIDE NT FROM PERUSAL OF THE RELEVANT PART OF THE FINDINGS OF THE CIT(A), AS REP RODUCED ABOVE, WHEREBY ON SIMILAR FACTS, DISALLOWANCE MADE WAS JUS TIFIED. THE LD. CIT(A) HAS CATEGORICALLY MENTIONED THAT THE ASSESSE E HAD FAILED TO HIGHLIGHT OR PROVIDE THE DETAILS OF THE SPECIFIC SE RVICES RENDERED BY HIS SONS, DAUGHTER AND DAUGHTER-IN-LAW OF THE ASSESSEE IN THE BUSINESS OF THE ASSESSEE. FURTHER, IT WAS FOUND BY THE LD. CIT (A) THAT THERE WAS NO SUCH AGREEMENT ON RECORD TO JUSTIFY SUCH PAYMENTS . WE ARE IN COMPLETE AGREEMENT WITH THE FINDINGS OF THE LD. CIT(A) IN TH E MATTER. IN VIEW OF THE ABOVE DISCUSSION, THE, FINDINGS OF THE LD. CIT( A) ARE UPHELD. THE TRIBUNAL HAS CONFIRMED THE DISALLOWANCE OF COMM ISSION MAINLY ON THE BASIS THAT NO COGENT EVIDENCE IS AVAILABLE TO JUSTI FY THE PAYMENT OF COMMISSION. EVEN IF SUCH COMMISSION IS ALLOWABLE U/ S 36 EVEN THEN ASSESSEE HAS TO JUSTIFY THE PAYMENT OF COMMISSION. 6. SIMILAR IS THE CASE WITH ORIGINAL GROUND NO. 1 ( B) AND REVISED GROUND NO. 3. THE DISALLOWANCE HAD BEEN CONFIRMED VIDE PA RA 7 TO 9 WHICH ARE AS UNDER: 7. IN GROUND NO. 1(B), THE ASSESSEE CONTENDED T HAT CIT(A), ERRED ON FACTS AND LAW, IN UPHOLDING THE DISALLOWAN CE OF RS.10,50,806/-, OUT OF TOTAL RENT PAID OF RS.14,40, 000/- U/S 40A(2), WITHOUT APPRECIATING THE FACTS AND SUBMISSIONS IN T HE MATTER. THE LD. 'AR' MERELY JUSTIFIED THE SAID CLAIM. HOWEVER, LD. 'DR' PLACED RELIANCE, ON THE ORDER OF THE LOWER AUTHORITIES. 8. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO FOUND THAT THE ASSESSEE HAD PAID RENT OF RS.14,40,000/- WHICH WORKED OUT APPROXIMATELY 370% MORE THAN THE RENT PAID, IN THE PRECEDING YEAR, AN 10 INCREASE FROM RS.3,89,194/-, TO RS.14,40,000/-, TO THE SAME THREE PERSONS DEEPAK MALIK, RAMESH MALIM AND MUKESH MAL IK. THERE BEING NO AGREEMENT AND NO PLAUSIBLE EXPLANATION, WA S FILED BY THE ASSESSEE, THE AO DISALLOWED THE RENT AMOUNTING TO R S.10,50,806/-. LD. CIT(A) UPHELD THE FINDING OF THE AO VIDE PARA 11 TO 13 OF THE APPELLATE ORDER. THE RELEVANT PART OF THE SAID ORDER IS REPR ODUCED HEREUNDER : 11. AFTER HAVING CONSIDERED RIVAL SUBMISSIONS, I F IND THAT 1. THERE IS NO EVIDENCE ON RECORD TO SUPPORT OR PROVE THE CONTENTION OF THE APPELLANT IN THE ABSENCE OF A PROPER RENT AGREEMENT. 2. DEDUCTION OF TDS ON RENT PAID OR THE RENT BEING ASSESSED TO TAX IN RECIPIENTS HANDS IS NOT RELEVAN T HERE. 3. EXPANSION OF BUSINESS PREMISES, THOUGH NOT SUBSTANTIATED, CANNOT BE THE ONLY OR EVEN MAJOR REASON FOR INCREASE IN SALE. 4. MULTIPLYING 4.8 LACS X 3 AND A MERE STATEMENT THAT THIS YEAR 1 ST AND 2 ND FLOOR HAVE ALSO BEEN RENTED IS IN ANY CASE QUITE ERRONEOUS SINCE EVEN IF THE FACTS WE RE SUBSTANTIATED, 1 ST AND 2 ND FLOOR DO NOT FETCH THE SAME RENT AS GROUND FLOOR. 12. SO THE BOTTOM LINE IS THAT THE ASSESSEE CAN PROVE NOTHING IN THE ABSENCE OF A RENT AGREEMENT AND DEFINITELY THE BURDEN LIES ON HIM TO PROVE EVIDENCE . 13. IN VIEW OF THE ABOVE, THE ADDITION HAS BEEN RIGHTLY MADE AND THEREFORE CONFIRMED, DISMISSING ASSESSEE'S PLEA ON THIS GROUND 9. WE HAVE PERUSED THE RIVAL SUBMISSIONS, FACTS OF THE CASE AND FOUND THAT THE ASSESSEE HAD FAILED TO ADDU CE ANY COGENT AND CREDIBLE EVIDENCE WITH A VIEW TO ESTABLISHING T HE GENUINENESS OF THE IMPUGNED TRANSACTIONS. HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE IN COMPLETE AGREE MENT, WITH THE LD. CIT(A) THAT DEDUCTION OF TDS, ON RENT IS NO EVI DENCE FOR GENUINENESS OF THE TRANSACTIONS AND THE CLAIM OF EL IGIBILITY MADE BY THE ASSESSEE, IN RESPECT OF SUCH PAYMENT OF RENT PAID BY HIM, TO HIS SONS. IT IS, FURTHER, ADDED THAT THE ASSESSE E FURTHER OPTED TO PAY COMMISSION TO SUCH VERY PERSONS, ALONGWITH ONE OR TWO MORE CLOSE RELATIVES, TO THE TUNE OF RS. 16 LACS. THEREF ORE, A CONJOINT READING OF THESE EXPENSES CLAIMED BY ASSESSEE CLEAR LY REVEALS THE 11 ASSESSEE RESTORED TO DEVICE TO REDUCE TAXABLE AMOUN T, BY MAKING EXPENDITURE NOT SUPPORTED BY COGENT EVIDENCE. WE H AVE ALSO PERUSED AND CONSIDERED PAGE NO.53 OF THE PAPER BOOK FILED BY THE ASSESSEE. THE ASSESSEE HAS FAILED TO DISCHARGE THE ONUS OF ESTABLISHING THE TRANSACTIONS OF RENT AS GENUINE. CONSEQUENTLY, THE DISALLOWANCE MADE BY THE AO AND UPHELD BY THE C IT(A) ARE FACTUALLY AND LEGALLY ON SOUND FOUNDATION. THEREFO RE, WE UPHOLD THE SAID DISALLOWANCE MADE BY THE AO AND UPHELD BY THE CIT(A), WHICH ARE BASED ON NO EVIDENCE. THIS GROUND OF APP EAL OF THE ASSESSEE IS DISMISSED. THE ABOVE CLEARLY SHOWS THAT ISSUE HAS BEEN DECIDED MAINLY ON THE BASIS THAT THERE WAS NO EVIDENCE TO PROVE THE JUSTIFICATION OF ADDITIONAL RENT. EVEN IF ASSUMING FOR THE SAKE OF ARGUMENT THAT TRIBUNAL HAS WRONGLY DECIDED THE ISSUE EVEN THEN TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER. THE ONLY RECOURSE LEFT TO THE ASSESSEE IS TO FILE AN APPEAL TO THE HONBLE HIGH COURT. THE NEW BENCH CAN NOT SIT ON APPEAL ON THE ORDER PA SSED BY EARLIER BENCH. FROM THE CONTENTS OF MISC. APPLICATION, IT BECOMES ABSOLUTELY CLEAR THAT ASSESSEE IS SEEKING REVIEW OF THE EARLIER ORDER OF TRIBUNAL WHICH IS NOT PERMISSIBLE UNDER THE LAW. ACCORDINGLY, WE ARE OF THE OPINION THAT THERE IS NO ERROR IN THE ORDER OF TRIBUNAL AND, THEREFORE, MISC. APPLICATION IS REJEC TED. 7. IN THE RESULT, MISC. APPLICATION IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON THIS 21/06/2 013 ) SD/- SD/- (SUSHMA CHOWLA) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 21 JUNE, 2013 AG 12 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR