2011 (5) TMI 26

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....t Year 1993-94, the Assessing Officer had disallowed such payments to the extent of Rs 1,61,35839/-. In an appeal filed by the assessee, the Commissioner of Income Tax (Appeals) noted that details of the commission paid along with necessary evidence were not furnished during assessment proceedings in spite of specific opportunity given by the Assessing Officer. He was of the view that since it was the assessee who had claimed this expenditure, the onus was on him to prove it and that he had failed to discharge that onus. He, therefore, maintained disallowance to the extent of commission payment of Rs 23,22,250/- and Rs 1,73,457/-, but, in view of the past record and nature of the commission, export commission of Rs 19,20,478/- and the early....

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....nbsp; (A) following his order for the assessment year 1995-96, reduced the addition to Rs 38,10,251/-. In the appeal filed by the Revenue, the Tribunal noted that the expenditure claimed by the plaintiff comprised export commission of Rs 12,70,409/-, which was deleted for the assessment year 1995-96. Rs 13,88,334/- towards District Officer Commission which was allowed for the assessment year 1995-96 and brokerage on TELCO bills amounting to Rs 94,987/- and in view of these details and past history of the case, the appeal filed by the Revenue was dismissed.   4. These appeals by the Revenue were admitted on the following substantial questions of law:   (1) Whether the Ld. ITAT was justified in law in misplacing the burden ....

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....he Assessing Officer to prove the alleged payments, particular when it was specifically called upon to do so and an opportunity was subsequently given to it for this purpose. Once it was found that the onus of proving the alleged payment on the assessee and he had not produced any evidence to prove those payments, neither CIT(A) nor ITAT could have allowed these payments, without having any material before them to substantiate such payments. The CIT(A) as well as the ITAT, in our view, committed a serious error of law in upholding these payments despite finding that no material had been produced by the assessee to substantiate these payments. The ITAT was not justified in rejecting the appeal of the Revenue on the sole ground that the Depar....