TaxTMI 
TaxTMI 
2015 (2) TMI 725
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....his appeal. 4. He submits that, in such cases this court must necessarily find out as to what is the onus on a party like the appellant-assessee. Mr. Mistry submits that if the details have been provided as sought by the Assessing Officer including the identification of the parties, the nature of the dealings and the transactions, monies paid, then this is a case where the primary onus has been discharged. Once it has been discharged by the assessee, then really the burden shifts on the Revenue. The Revenue has then to consider and hold as to whether the primary onus and which is claimed to be discharged has indeed been done and it has been discharged. Unless and until the Revenue is able to demonstrate and prove the negative by producing contrary material, the assessee must succeed. 5. Inviting our attention to the nature of the transactions, it is submitted by Mr. Mistry that Shree Digvijay Cement Co. Ltd. is the manufacturer and supplier of cement. Admittedly, the assessee-appellant before this court is trading in cement and was appointed as an agent of M/s. Shree Digvijay Cement Co. Ltd. In earning business for M/s. Grasim Industries Ltd., what the appellant has done is to ge....
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....gh Court in the case of Mather and Platt (India) Ltd. v. CIT reported in [1987] 168 ITR 493 (Cal) and (3) the judgment of the Gujarat High Court in the case of Swastic Textile Co. P. Ltd. v. CIT reported in [1984] 150 ITR 155 (Guj). According to Mr. Mistry, all these judgments are on the point as to whether the burden is said to be discharged by production of primary documents. 7. On the other hand, Mr. Pinto, the learned counsel appearing on behalf of the respondent, would urge that this appeal does not give rise to any substantial question of law. He submits that this is an attempt of re-appreciation and re-appraisal of factual material which is improper. There is absolutely no perversity in the finding of the Income-tax Appellate Tribunal, rather, the Tribunal has performed its duty in law of reversing the order of the Commissioner of Income-tax (Appeals). The Tribunal has meticulously scrutinised and verified all the requisite details and has upheld the findings of the Assessing Officer. It has upheld the finding of the Assessing Officer by assigning cogent and satisfactory reasons. Ultimately, in all such matters, the test is of preponderance of probabilities. In such circums....
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....pany. He, therefore, held that there was no evidence on record to show that the assessee procured the business with the help of the service of brokers. Notices were addressed to companies who are stated to be in receipt of commission. They were called upon to furnish the relevant details including the copies of the agreement with the assessee for payment of commission and copies of the bills raised on the assessee for commission. They were also asked to confirm the nature of the services rendered with proof of the transactions for the earlier and subsequent years. They were also called upon to furnish copies of the service tax returns filed by them as well as ledger account of the assessee in their books. The notices addressed were returned unserved with the postal remark "not found". The assessee was, therefore, told about this and was asked to furnish the details of total sales made and commission paid broker-wise for the preceding three years. Copies of the agreement with the brokers and other details were sought for. The assessee furnished the names and addresses but did not furnish the details of services provided by them. 11. That is how the Assessing Officer came to the con....
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....rma has rendered services with procurements of orders of supply of cement and release of payment from various parties, such as, M/s. ONGC Ltd., Irrigation Department, Agriculture Department, Tata Power Ltd., M/s. Central Warehousing Co., etc. The Assessing Officer noted that M/s. Panjon Pharma was not in the business of providing any services in the past. This was the first order in which huge commission is shown to have been paid and received from the assessee-appellant before us. The Assessing Officer was surprised, therefore, and rightly as to how the company in the pharmaceutical business could render services in connection with sale of cement and procurement of order for supply of cement. M/s. Panjon Pharma had huge brought forward business loss which was set off against the commission income received from the assessee. The Assessing Officer also noticed that the commission amount was credited in the account of Panjon Pharma in the HDFC Bank and the next entry was to transfer this sum to another account, for the reasons which were disclosed to the Assessing Officer. 14. It is in these circumstances that further details were sought for from the assessee and which have been ref....
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....nces of the case do not give rise to any substantial question of law. The appeal is, therefore, devoid of any merits and deserves to be dismissed. It is accordingly dismissed. 18. All the three judgments, of this court, the Calcutta High Court and the Gujarat High Court, which have been referred before us, must be seen in the backdrop in the backdrop of the peculiar facts. In the Bombay High Court judgment, the commission paid and the extent of business done by the mill company was referred and set out with complete details. The case was a payment of secret commission. The assessee gave complete list showing the turnover and the amount of secret commission paid from year to year. The percentage of secret commission was minimal. The full details of payment in respect of several parties were available. They were co- related to the transactions which the assessee had with these persons and the period during which the transactions were entered into. The only missing item was stated to be the names of the particular parties to whom the payments were made. This, the Tribunal held, could not be supplied without detriment to the business of the assessee in the very nature of things. It is....