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TMI Blog2017 (3) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... e finding of such payment having been made for the business purposes or it is genuine we find that the Tribunal has not considered the entire material in light of the particular facts of the case but has got swayed by certain inconsistencies and deficiencies noted by making a microscopic examination of the statement of Sheikh Shafat Ahmad as if it (Tribunal) were examining the case of that person whereas in the instant appeal it was only required to see if the expenditure claimed to have been borne by the assessee was genuine. If the answer on this issue were in favour of the assessee, then it would be of little consequence (in these proceedings) how Sheikh Shafat Ahmad has dealt with the money received by him from the assessee. We set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Sheikh Safat Ahmad Proprietor M/s S S Traders, Srinagar at the rate of 10% of sales effected through him to the Director of Fire Emergency Services, Jammu Kashmir, Srinagar. In reply the assessee claimed it had supplied certain firefighting vehicles to the Jammu Kashmir Firefighting department against award of tender in respect which the said Sheikh Safat Ahmad had provided liasoning and other services to the assessee. It further appears in the course of assessment proceedings the Assessing Officer had required the petitioner to produce Sheikh Shafat Ahmad but that the said person was not produced and the assessment was completed disbelieving the claim of commission paid to Sheikh Shafat Ahmad. It is also to be noted that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h payments. The correctness of this fact is not disputed by the revenue. Sheikh Shafat also stated that he had amongst others provided service to the assessee in the nature of tender enquiry, submission of tender, follow-up tenders, procurement of orders, release of payment and after sale services. However, he could not produce certain documentary evidence that had been called for by the Assessing Officer chiefly in the nature of books of account, certificate of competence etc. Also, his returns for A.Ys 2005-06, 2006-07 and 2007-08 were filed late and certain other queries were according to the assessing authority not answered satisfactorily by said Sheikh Shafat Ahmad. The CIT(Appeals) allowed the appeal filed by the assessee on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld claim such expenditure if it had incurred it on an agent of commensurate capacity of salesmanship, capacity and level. Also, according to the Tribunal in such a contract the recovery of sale consideration was not doubtful. Traveling further, the Tribunal has further reasoned when supply is made to Government Departments, commission is not allowable unless it is established that commission was for services other than services related to supply of goods to Government Department . Senior Counsel would submit that such a finding is in the teeth of the judgment of this court reported in DCIT Vs. Super Tannery (India) Ltd. (2005) 274 ITR 338 (Allahabad) wherein it was held as under: The court takes judicial notice of the fact that nowada ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the CIT(Appeals) has not considered the matter in entirety and may have hastily recorded the finding in favour of the assessee, we are unable to accept the reasoning given by the Tribunal to reject the claim, the said reasoning being based purely on conjectures. We feel there was sufficient evidence on record to reach a final finding on the issue involved in this matter. However, the Tribunal has failed to consider the evidence but has recorded its findings based on its personal notions and view all extraneous and not-desirable to be considered while deciding issue of genuineness and allowability of particular payments made by the assesse in the peculiar circumstances of his business. Such an approach cannot be approved. We may ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material in light of the particular facts of the case but has got swayed by certain inconsistencies and deficiencies noted by making a microscopic examination of the statement of Sheikh Shafat Ahmad as if it (Tribunal) were examining the case of that person whereas in the instant appeal it was only required to see if the expenditure claimed to have been borne by the assessee was genuine. If the answer on this issue were in favour of the assessee, then it would be of little consequence (in these proceedings) how Sheikh Shafat Ahmad has dealt with the money received by him from the assessee. In view of the above, we find that the order of the Tribunal is not sustainable and is, therefore, set aside and the matter is remitted to the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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