2009 (8) TMI 40

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....t on the facts and in the circumstances of the case, the ITAT was right in upholding CIT(A)'s action in deleting the addition of Rs.8,86,957/-, made on account of unsecured loans, ignoring the fact that the assessee had failed to discharge the onus of proving the creditworthiness of the alleged loan creditors, whereas due to assessee's failure in producing the alleged creditors, the AO was justified in taking an adverse view in terms of Sec.114 of the Indian Evidence Act. (ii) Whether on the facts and in the circumstances of the case, the ITAT was right in upholding CIT (A)'s action in deleting the addition of Rs.18,77,779/- by following the principle of consistency, ignoring the mandate of the Hon'ble Supreme Court as per decision dated....

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....as per the explanation of the assessee.  There is no dispute by the Revenue that the relevant vouchers and details were furnished during the assessment proceedings and there is no instance of non-payment of commission to the dealers. Even in the previous year, the assessment order was framed under section 143(3) and no addition was made on this account. We have perused the certificate from Spice dated 18.3.2008 (page 61) of the paper book, details of commission paid to the dealers (page 29 to 33 of the paper book), details of commission received during assessment year 2003-04 and 2004-05 (page 99 of the paper book) and the submissions of the assessee during assessment proceedings (page 101 to 103) of the paper book. If all these eviden....

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....ls were furnished before the learned Assessing Officer as well as before the Ld. CIT(A) and no defect was pointed out during assessment proceedings. Our attention was also invited to certain pages of the paper book. We have considered the rival submissions and perused the material available on the file. Brief facts are that during assessment proceedings, on perusal of profit and loss account, the learned Assessing Officer noticed that the assessee has claimed deduction of Rs.8,08,003/- on account of commission. The assessee was asked to justify the payment of such commission alongwith documentary evidence. The assessee explained as has mentioned in para 5 (pages 5 & 6) of the assessment order.  Ultimately the learned Assessing Officer ....