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TMI Blog2014 (7) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... e repairs, and continued to do so for five years, itself, if at all, disproves the claim of it being in a shabby condition when let – there was the absence of the basic or primary material in the form of bill/s, voucher/s, to evidence the repair work; the rent deed, etc. -The expenditure remains, consequently, completely unproved – thus, the disallowance is restored – Decided in favour of Revenue. - I.T.A. No. 4773/Mum/2012 - - - Dated:- 16-7-2014 - Shri I. P. Bansal, JM And Shri Sanjay Arora, AM,JJ. For the Appellant : Shri Maurya Pratap For the Respondent : Ms. Aarti Visanji ORDER Per Sanjay Arora, A. M. This is an Appeal by the Revenue directed against the Order by the Commissioner of Income Tax (Appeals)-34, Mumbai ( CIT(A) for short) dated 29.05.2012, allowing the assessee s appeal contesting its assessment u/s.143(3) of the Income Tax Act, 1961 ( the Act hereinafter) for the assessment year (A.Y.) 2008-09 vide order dated 14.12.2010. 2. The appeal raises two issues, qua two disallowances effected in assessment, since confirmed. We shall take up the same in seriatim. 3. The first issue is in relation to the assessee s claim toward commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts Ltd. [1991] 188 ITR 1 (Bom). The payments had been made by cheque. There was nothing to show that the payment was bogus. The disallowance was accordingly deleted. Aggrieved, the Revenue is in appeal, raising the following ground: 1. On the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in deleting the disallowance of commission payment of ₹ 16,46,320/- by holding that non compliance of notice u/s.133(6) cannot be a ground for disallowance, when the assessee has failed to discharge his onus to put forth evidences in support of its claim of expenses. 4. We have heard the parties, and perused the material on record. 4.1 The first thing that strikes us is the extremely uncooperative, indifferent and cavalier attitude of the assessee during the assessment proceedings, initiated by the issue of notice u/s.143(2) on 18.08.2009, constraining the A.O. to frame the assessment on the basis of the details and materials on record, after giving a final opportunity to the assessee on 29.10.2010 to state its case, as well as show cause as to why the assessment may not be completed thus, i.e., on the basis of such (incomplete) details and the materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossessing the requisite expertise. We find no answers to these such like basic and principal questions arising out of the assessee s conduct and explanation, neither from the material on record nor even after hearing the ld. Authorized Representative (AR). 4.3 The assessee s sole case before us was of payment having been made, and which stands confirmed by the payees. Proof of payment does not amount to or substitutes for payment of work done. Rather, evidence as to services rendered, which ought to be aplenty, considering that the services are stated to being availed of in a continuous, regular manner, would substantiate accrual of expenditure, so that the factum of payment is rendered secondary. Then, again, there is no explanation for the complete absence of any material toward the same. On the contrary, we observe that the two notices by the A.O., which stood responded to by the noticees, i.e., by Mahendra Vyas and Janardhan Thanvi (PB pgs.8, 9), are not signed by them; the signatures thereon, purportedly theirs, are wholly and materially different from that appearing on their respective confirmations (PB pgs. 3, 4). In fact, Janardhan Thanvi, clearly states of being in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tood effected for that reason. Reliance on the decision in the case of Goodlass Nerolac Paints Ltd. (supra), which lays down the well settled law, by him would also be of no assistance in-as-much as it has no application in the facts and circumstances of the case. There could, for example, be a case where the payee denies having rendered the services or of receipt of payment ascribed to him, furnishing his bank statement in support. The onus in such a case would shift right back to the assessee. The matter, it may be appreciated, is wholly factual, and stands to be decided, in the final analysis, on the assessee having, or not so, discharged the burden of proof on it, which we have in the instant case found as not in fact, to any extent; rather, its genuineness being in serious doubt. 4.5 Under the circumstances, we, in view of the foregoing, have no hesitation in vacating the findings by the ld. CIT(A), direct restoration of the disallowance under reference. We decide accordingly. 5. The second, and the only other ground of appeal, is with regard to the disallowance of the assessee s claim for expenditure on repairs and maintenance, at ₹ 3,65,756/-, since deleted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the relevant year itself? What is there to show that the assessee was obliged under the agreement to undertake the repairs? Rather, generally the tenants are obliged to keep the rented premises in a state of good repairs, i.e., in the same, usable state in which the delivery of possession was made to them, while in the instant case, admittedly, extensive repairs had been carried out? When is the rent agreement expiring? This is as nobody would undertake repairs on this scale toward the fag or near end of the tenancy. There is nothing to show that the premises were, as claimed, in a shabby condition, when rented. On the contrary, the fact that the assessee established his business premises therein, commenced work without undertaking the repairs, and continued to do so for five years, itself, if at all, disproves the claim of it being in a shabby condition when let. The ld. AR would only emphasize on the subsequent payment; in fact, the long time lag for payment the repairs ostensibly having been undertaken during the year - itself raises doubts on the genuineness of the claim. We have already noted the absence of the basic or primary material in the form of bill/s, voucher/s, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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