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TMI Blog2016 (3) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... m Jindal Aluminum or Banco Aluminum. The CIT(A) has provided opportunity to the assessee to demonstrate what is the nature of services these three persons have given to the assessee. Not to talk of services provided by these persons, even, the assessee could not produce the nature of activity for giving rise to the commission income. He has received some income, but failed to demonstrate the activity of earning of this commission income. The expenditure for earning any income can be claimed by the assessee, if he is able to demonstrate that the expenditure was exclusively and wholly incurred for the purpose of business activity. The factum of the payment of money may not be in doubt, but the factum of rendering of services at the end of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alled for details of the commission income and services rendered by the assessee. He also called for the details of the expenses alleged to have been incurred by the assessee for earning this commission income. According to the AO, the assessee failed to submit requisite details, and therefore, disallowed the claim of the expenditure at ₹ 4,85,000/-. 4. Appeal to the CIT(A) did not bring any relief to the assessee. The ld.CIT(A) has confirmed the disallowance of ₹ 4,85,000/- by observing as under: 4.3. I have considered the facts of the case, the appellant's submission and the AO's observations. As stated in the assessment order, the appellant had claimed to have made expenses of commission to his agents for gett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission along with complete details of services rendered by them for this purposes. The appellant had been also asked that such details should also include the details of the parties to whom sale were made through such commission agents. In this letter, date of hearing was given as on 10/02/2015. On that day no reply was submitted by the appellant. Hence, for the sake of natural justice, another hearing was fixed on 09/04/2015. On that day, the appellant did 'not make any compliance. On 16/04/2015 a letter was received requesting for adjournment on account of fracture in right leg of the AR. Subsequently, another hearing was fixed on 02/06/2015. On that day, the AR appeared and filed submission alongwith affidavit of the persons who had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the provisions of section 40A(3). Even the affidavits filed by the sub-agents nowhere mention the dates of receipt of payments from the appellant. Besides these three persons have also filed their return of income on the same date on 10/03/2012 after the AO had already issued letter to the appellant regarding allow/ability of such expenditure. Moreover, 2 of these persons Jayesh bhai Jagdish Bhai Parmar and Jignesh Kumar Kanaiyalal Mashiyava, have only shown the amounts allegedly received from the appellant as their only source of income. If they had experience in marketing and selling of different products, as claimed by them, they should have had income from other sources also, Thus, the return of income filed by them is just an attem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. 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. 4.3.3.1. Further, the Jurisdictional High Court in its decision in the case of 40 taxmann.com 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee contended that the payments of commission to these persons by the assessee ought to be allowed. On the other hand, the ld.DR relied upon the order of the ld.CIT(A). 6. I have duly considered rival contentions and gone through the record carefully. During the course of hearing, I confronted the ld. counsel for the assessee to show the nature of activity which has given rise to commission income to the assessee, because, the assessee was working as plant operator in the Gujarat State Electricity Corporation Ltd. and a salaried employee. The ld. counsel for the assessee submitted that the assessee has received commission income from Jindal Aluminum and Banco Aluminum. These concerns must have made certain purchases of aluminum produc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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