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TMI Blog2017 (12) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee was infact engaged in the activity of purchase and sale of data and had generated revenue therefrom, the finding as to its utility etc., was not a matter that was decisive. While considering the claim of expenditure during the assessment. It is settled principle of Income Tax Law that the Assessing Officer cannot sit in the seat of the assessee and try to conduct the business in the manner he considers prudent. Thus the finding of fact recorded by the Tribunal has not been shown to be perverse. - Decided in favour of assessee. Disallowance of salary expenditure - Held that:- Though the revenue does not dispute the existence of form-16 in respect of the salary disbursement, yet, the existence of such certificates is not enough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we find that the Tribunal has not committed any error in accepting the claim of the assessee with regard to the expenditure on account of payment of 'Referral Fee'. The said finding is a finding of fact based on evidence on record. Therefore, the question no.3 raised by the revenue is answered in favour of the assessee - Income Tax Appeal No. 307 of 2013 - - - Dated:- 24-11-2017 - Hon'ble Bharati Sapru And Hon'ble Saumitra Dayal Singh, JJ. For the Appellant : Manish Goel,C.S.C. For the Respondent : Rahul Agarwal ORDER Heard Shri Manish Goyal, learned counsel assisted by Shri Swapnil Rastogi, learned counsel for the revenue/appellant and Shri Rahul Agrawal, learned counsel for the assessee/ respondent. This a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment was not made directly to the persons shown in the account books and many of the letters/summons were returned unnerved and many persons denied receiving any such payment and the ITATs order is silent on this aspect? The assessee is a company. For the assessment year 2008-09, it derived commission income from sale of data to an insurance company namely Bajaj Allianz. The assessee filed its return of loss. It disclosed having purchase such data from another entity namely M/s Shiva Fund Trust to which it paid an amount of ₹ 70, 36,440/-. It also claimed to have incurred 'salary expenditure' of ₹ 4,49,63429/- and to have paid 'Referral fee' of ₹ 4,03,52970/-. The aforesaid expenditure as claimed c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not establish and explain the contents or utility of the information purchased, procured and the process by which the said information was utilized; and the source of income as also the credentials of Shiva Fund Traders. While the CIT (Appeals) dismissed the appeal filed by the assessee in hand, the Tribunal has allowed the assesse's appeal on this count. According to the Tribunal, the Managing Director of the assessee had appeared before the Assessing Officer and explained the exact nature of the business of the assessee and the mode of its operation. The Tribunal then found that the expenditure of ₹ 70,36,440/- made on account of 'certified data purchase' was of data shown to have been purchased by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter, the finding of fact recorded by the Tribunal has not been shown to be perverse. In fact, the same was based on appreciation of evidence and consideration of relevant facts. The first question of law raised by the department is, therefore, answered in favour of the assessee and against the revenue. As to the second question with regard to disallowance of salary expenditure, it is seen that the Assessing Officer had disallowed the salary payment for reasons that 12,000 entries found recorded in annexure-C-1 produced by the assessee disclosing salary disbursement of ₹ 14,236,179, though supported by form-16, was not supported by any vouchers issued by the assessee. A perusal of the assessment order infact indicates that ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced any affidavits of confirmation by any such employee acknowledging the salary payment as claimed by the assessee. The Tribunal has clearly misconstrued this issue and hurriedly concluded that the Assessing Officer had not pointed out the deficiency of vouchers. The finding of the Tribunal is thus, clearly not supported by any evidence. It is, therefore, perverse. At this stage, Shri Rahul Agrawal, learned counsel for the assessee submits that if the assessee had been given an opportunity, he would have led evidence in support of the claim of salary disbursement. Therefore, instead of remanding the matter to the Tribunal to decide the matter afresh, we consider it proper to remand the matter to the CIT (Appeals), which authori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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