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TMI Blog2017 (12) TMI 1355X X X X Extracts X X X X X X X X Extracts X X X X ..... that he was receiving approximately 1500/- per lakh. It was on the basis of the statement made by the assessee under Section 132(4) that the First Appellate Authority reduced the rate of commission to 1500/- per lakh. Such a fixation of commission cannot be said to be vitiated for any reason. Secondly, the Tribunal was also factually wrong in stating that the assessee himself had claimed in response to question No.16 that the commission he was getting was 1000/- per lakh. On the other hand, the answer given by the assessee himself would show that what he has stated was that he was getting commission at the rate of 1000/- to 2000/- per lakh. Therefore, the conclusion of the Tribunal is untenable and we therefore set aside the finding with re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal's finding on these issues also cannot be interfered with. Therefore, this appeal is disposed of answering the first question of law in favour of the Revenue X X X X Extracts X X X X X X X X Extracts X X X X ..... g ₹ 2000/- per lakh as the commission received by the assessee for the whole year. However, the Commissioner of Income Tax (Appeals) though confirmed the addition made by the Assessing Officer, reduced the commission to ₹ 1500/- per lakh. In the appeal which was filed by the assessee before Tribunal, the Tribunal passed the impugned order, where the Tribunal has reduced the commission arrived to ₹ 1000/- per lakh. It is this variation made by the Tribunal in the rate of commission that has given rise to the question of law that is framed for our consideration. 4.We heard the learned Senior Counsel appearing for the assessee. From the order of the Tribunal, we find that it has taken note of the statement made by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther hand, the answer given by the assessee himself would show that what he has stated was that he was getting commission at the rate of ₹ 1000/- to 2000/- per lakh. Therefore, the conclusion of the Tribunal is untenable and we therefore set aside the finding with respect to the rate of commission and restore the finding of the First Appellate Authority. 7.The second issue is wholly with reference to the unexplained cash credit of ₹ 11 lakhs. It is true that when cash credit is found the burden is entirely on the assessee to prove the source of cash credit, the creditworthiness of the creditor and the genuineness of the transaction. In so far as this case is concerned, it is seen that the First Appellate authority had obtained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstruction. The books of account showed the cost of construction at the rate of ₹ 24,75,382/-. Though the books of account were not rejected by the assessing officer, the assessing officer referred the matter to the Departmental Valuation Officer who reported that the cost of construction would be ₹ 40,94,461/-. It was on the basis of this report that a differential amount of ₹ 16,19,079/- was added as unexplained investment. This addition was confirmed by the first appellate authority and was rily deleted by the Tribunal. The reason adopted by the Tribunal was that having not rejected the books of account of the assessee, the assessing officer could not have referred the matter for valuation by the Departmental Valuation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of law framed, read as under:- 1.Whether on the facts and in the circumstances of the case and in view of the admission of the assessee in the sworn statement that the commission was approximately ₹ 1500/- per lakh, the Tribunal is right in law and fact in fixing the same at ₹ 1000/- per lakh and is not the fixation of the quantum on the ipsi dixit of the Tribunal, perverse and arbitrary? 2.Whether on the facts and in the circumstances of the case and in the absence of the genuineness of the credit being proved by the assessee the Tribunal is right in law in deleting the unexplained cash credit? 3.Whether, on the facts and in the circumstances of the case: (a) did the assessee discharge the burden of proof that lay o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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