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TMI Blog2012 (5) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... f Income-tax (Appeals), Pariala has erred in law and on facts by resorting to the provisions of section 13(1)(c)(ii) of the Act ibid for disallowing the salary disbursed at Rs. 2,58,378 to Smt. Shanta Kumar w/o. Shri Darshan Kumar who was the principal of Y. S. School, Barnala and director of Y. S. Public School, V. Handya run by the society. 2. That the disallowance of salary to Smt. Shanta Kumar is unjustified in view of the facts that in the pervious completed assessment under section 143(3) and 143(1), such payment of salary and rendering of service by Smt. Shanta Kumar has been accepted by the Assessing Officer. 3. That the learned Assessing Officer as well as the Commissioner of Income-tax (Appeals), Pariala, has erred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) of the Act for disallowing the salary of Rs. 2,58,378 paid to Smt. Shanta Kumar, w/o. Shri Darshan Kumar. The learned authorised representative submitted that the salary paid to Smt. Shanta Kumar was allowed while framing assessment under section 143(3) in the previous year. Therefore, there is no consistency on the identical facts and circumstances to disallow such payment of salary in the assessment year under reference. He referred to various pages of the paper book evidencing requisite qualification of Smt. Shanta Kumar. It was also pointed out by the learned authorised representative that salary is not excessive having regard to the services rendered by her. The learned Departmental representative on the other hand, placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not for the person against whom the averment is made to establish negatively that the state of affairs averred by the other person does not exist. Therefore, the exception has to be stated and established by the Revenue and the burden to prove lies on the Revenue to prove that section 13 in a particular case applies. In the present case, the Revenue has failed to discharge such burden to prove, cast on it as is evident from the ensuing discussions. In the context of the present fact situation of the case, relevant provisions are reproduced here-under:- "13. Section 11 not to apply in certain cases:- (1) Nothing contained in section 11 or section 12 shall operate so as to exclude from the total income of the previous year of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a chart giving details of salary paid to Mrs. Shanta Kumar from the assessment years 2003-04 to 2007-08. A perusal of the same reveals that for the assessment year 2003-04, the assessment of the assessee was completed under section 143(3) and no disallowance of salary paid to Smt. Shanta Kumar was made. It is well settled law that the doctrine of res judicata is not applicable to the fiscal statutes. However, the doctrine of consistency prevails over the doctrine of res judicata where the facts and circumstances of the case are identical and the Revenue has granted allowance of salary for the assessment year 2003-04. The learned authorised representative referred to page 34 of the paper book whereby the qualification of Smt. Shant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... book indicating the nature of services in the form of advertisement work rendered by Shri Varun Bharati, s/o. Shri Darshan Kumar. He was of the opinion that the transaction is genuine and the payment is purely made on account of professional services in the form of advertisement rendered by Varun Bharati. The learned Departmental representative placed reliance on the order of the lower authorities. The Assessing Officer disallowed advertisement expenses of Rs. 21,000 paid to Shri Varun Bharati who is son of Sh Darshan Kumar, secretary of the assessee-society. The amount of Rs. 12,000 was paid on June 26, 2006 and Rs. 9,000 paid on July 11, 2006. The learned Commissioner of Income-tax (Appeals) upheld the disallowance made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee in respect of salary paid to Smt. Shanta Kumar and payment of Rs. 21,000 made to Shri Varun Bharati in respect of professional services rendered by the assessee, ground No. 5 becomes inconsequential, hence needs no separate adjudication and the same is dismissed. Ground No. 6 raised by the assessee pertains to the charging of interest under section 234B of the Act. It is a well settled proposition that charging of interest under section 234B is mandatory and consequential, hence needs no separate adjudication. Ground No. 7 is general in nature and needs no adjudication. In the result, appeal of the assessee is allowed as indicated above. The order pronounced in the open court on the 17th October, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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