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TMI Blog2015 (2) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and procurement of order for supply of cement. M/s. Panjon Pharma had huge brought forward business loss which was set off against the commission income received from the assessee. The Assessing Officer also noticed that the commission amount was credited in the account of Panjon Pharma in the HDFC Bank and the next entry was to transfer this sum to another account, for the reasons which were disclosed to the Assessing Officer. Therefore, ITAT did not commit any error and rather applied the correct test in reversing the order of the CIT(Appeals). The appellant has not been able to discharge the burden and it is not impossible. It is a primary onus and which was to be discharged and which has been held as not discharged by providing the requisite details. We do not find that the reasons assigned by the Tribunal consistent with the material produced are vitiated by perversity or an error of law apparent on the face of the record which would enable us to exercise our powers under section 260A of the Act. - Decided against assessee. - INCOME TAX APPEAL NO. 1906 OF 2011 - - - Dated:- 12-3-2014 - S.C. DHARMADHIKARI G.S. KULKARNI, JJ. For the Appellant : Mr.J.D. Mistry, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Suvidha ). These are the instances cited in the assessment proceedings. These parties were identified. The nature of the arrangement between the appellant and these two parties was produced on record. It is through these parties that the appellant was able to reach out to several corporate and public sector undertakings which were implementing and executing public projects. The cement was supplied at the site of these projects. In such circumstances, there was nothing fishy or underhand about any of these dealings as alleged. In such circumstances, the Commissioner of Income-tax (Appeals) in allowing the appeal of the appellant-assessee did not commit any error of law or perversity enabling the Income-tax Appellate Tribunal to reverse the findings of fact. The appeal of the appellant was allowed by assigning cogent and satisfactory reasons. Once the appellate authority had before it the entire material, then merely because another view is possible and on the same factual aspects, the Income-tax Appellate Tribunal could not have reversed the order of the Commissioner of Income-tax (Appeals). The Income-tax Appellate Tribunal in reversing the said order has held that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions and the decisions brought to our notice. 9. The present assessee, admittedly, claimed that there was a principal- agent relationship between M/s. Grasim Industries and appellant. Being a trader and dealer in cement and cement products, M/s .Grasim Industries appointed the appellant as its agent and to enable it to procure business through the appellant. The appellant in turn got into touch with several parties and through whom he obtained details of ongoing projects of major entities, public sector corporations and Government undertakings. It is on that basis that the parties informed the appellant that such of these entities which are implementing the project would require cement in large quantity. That is how the business was procured and the assessee tried to urge that from the commission amount paid by M/s. Grasim Industries to him he can book the expenses. He booked the expenses by pointing out that M/s. Panjon and M/s. Suvidha Realtors and Construction (P.) Ltd. assisted him in obtaining details of the business. That is how they have been remunerated and which payments were essentially probed. 10. The Assessing Officer had, before him, the details of payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see in supplying the cement to a site of M/s. Oil and Natural Gas Commission at Dehradun. However, the bill raised by M/s. Suvidha upon ONGC has been referred to in the assessment order and the Assessing Officer noted that the commission amount which has been paid was claimed for services rendered and assistance provided to the assessee M/s. Sunrise Enterprises for procurement of orders of supply of oil well cement. The total bill raised including the service tax and education cess came to ₹ 11,20,385. However, the bank statement of M/s. Suvidha Realtors and Constructions Pvt. Ltd. indicated that the amount credited in the said bank account of M/s. Suvidha Realtors was subsequently transferred to the account of M/s. Suvidha Realtors, another entity. 12. Upon a query made to M/s. Oil and Natural Gas Commission with regard to their Dehradun site and by a notice dated November 19, 2008, resulted in the Assessing Officer being informed that the postal authorities were unable to trace the site. The address given by the assessee was incomplete. That is how in so far as M/s. Suvidha Realtors and Constructions P. Ltd. is concerned, the Assessing Officer came to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authorised stockist and interested parties cannot approach him for purchasing the goods and it is he who had approached them for business. He used the contacts of M/s. Suvidha Realtors and Constructions Pvt. Ltd. and M/s. Panjon Pharma. 15. We are of the opinion that the Income-tax Appellate Tribunal, therefore, did not commit any error and rather applied the correct test in reversing the order of the Commissioner of Income-tax (Appeals). The appellant has not been able to discharge the burden and it is not impossible. It is a primary onus and which was to be discharged and which has been held as not discharged by providing the requisite details. These are not matters which were to the knowledge of the Assessing Officer and the assessee was called upon to clarify them. It was a matter solely to the knowledge of the appellant. It was personal to him. It was the assertion of the appellant and which was being probed, however, in greater details. It was a clear case where the onus which was resting on the assessee in law has not been discharged by producing the details with regard to the matters which are to the personal knowledge only of the assessee. It is the assessee's ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stinguishable on facts. 19. In the case of Mather and Platt (India) Ltd. (supra), commission agents were employed to sell the machinery. The assessee claimed deduction of certain amounts paid to such agents in the assessment year 1975-76. These transactions were examined and after the summons was issued to the parties, it was revealed that payments were made by a bank draft in one case and in the case of the latter by an account payee cheque which was encashed through a bank account of the commission agent. The commission agents were identified and the records were produced. It is, in these circumstances, the deduction was allowed. However, the Tribunal held that the assessee has not discharged the burden of proving the identities of the two parties, i.e., S and V. 20. In reversing that finding of the Tribunal and holding that the assessee has been entering into such transactions in the regular and ordinary course of business through commission agents. As far as the case of S and V is concerned, the commission was paid and there was correspondence on record. The banking details were also available. It is in these circumstances that the Calcutta High Court held that merely bec ..... 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