The Commissioner Of Income Tax-21 v. Shri. N.r.prasad

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1284 OF 2011 The Commissioner of Income Tax-21versus Shri. N.R.Prasad ..Appellant ..Respondent -------- Mr. Suresh Kumar for the Appellant.Mr. P.C.Tripathi with Mr. Vipul Joshi for the Respondent. ............. CORAM : J.P. DEVADHAR & M.S.SANKLECHA, JJ. P.C.: In this appeal by the revenue, following question of law is formulated for our consideration: “Whether on the facts and in the circumstances of the case and in law, the ITAT is correct in confirming the order of CIT(A), deleting the addition made by the AO of Rs.29,64,671/-” 2 The Assessing Officer disallowed the expenditure of commission claimed by the respondent-assessee. This disallowance by the Assessing Officer was on the ground that on payment 1/3 of the commission to the 4 parties, it was noticed that the amounts were withdrawn by the parties on the next day after the deposit of the commission income in their account. Thus, the Assessing Officer was of the view that this withdrawal was highly suspicious and therefore, disallowed the expenditure on account of payment of commission. 3In appeal, the Commissioner of Income Tax (Appeals) (CIT(A)) deleted the addition of Rs.29.64 lacs on the ground that suspicion alone cannot be the basis of concluding that payment of commission is not genuine in the absence of the Assessing Officer bringing on record evidence to establish that the payment of commission is not genuine. 4In an appeal by the revenue, the Tribunal by its impugned order dated 28.08.2012 has upheld that finding of the CIT(A). The impugned order records the fact that all the parties to whom the commission has been paid had disclosed such commission as its income in their returns of income filed with the department. Further, the commission has also been paid by Account Payee Cheque's and nothing was brought on record to prove that those parties to whom the commission was paid, had infact not rendered any services to the respondent-assessee. Thus, the Tribunal concluded that the payment of commission is genuine and the deduction as claimed as allowable. 5Since, the decision of the Tribunal is based on a finding of fact upholding a finding of fact arrived at by the CIT(A), we do not see any reason to entertain the proposed question of law. 6Accordingly, the appeal is dismissed with no order as to costs. (M.S. SANKLECHA, J.) (J.P.DEVADHAR, J.)