KETAN P. GOHIL, MUMBAI v. ITO 25(2)(3), MUMBAI

ITA 4451/MUM/2009 | 2006-2007
Pronouncement Date: 30-09-2011 | Result: Partly Allowed

Appeal Details

RSA Number 445119914 RSA 2009
Assessee PAN AEWPG1392P
Bench Mumbai
Appeal Number ITA 4451/MUM/2009
Duration Of Justice 2 year(s) 2 month(s) 6 day(s)
Appellant KETAN P. GOHIL, MUMBAI
Respondent ITO 25(2)(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 30-09-2011
Date Of Final Hearing 08-08-2011
Next Hearing Date 08-08-2011
Assessment Year 2006-2007
Appeal Filed On 24-07-2009
Judgment Text
1 ITA NO. 4451/MUM/2009 (ASST YEAR2006-07) IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI A BENCH MUMBAI BENCHES MUMBAI BEFORE SHRI PRAMOD KUMAR AM & SHRI VIJAY PAL RAO JM ITA NO. 4451/MUM/2009 (ASST YEAR2006-07) SHRI KETAN P GOHI 2-B/802 DHERAJ UPAVAN OPP SIDDHARTH NAGAR BORIVALI (E) MUMBAI 66 VS THE INCOME TAX OFFICER 25(2)(3) MUMBAI (APPELLANT) (RESPONDENT) PAN NO. AEWPG1392P ASSESSEE BY SHRI D C SABHOO REVENUE BY SHRI PARSHASARATHI NAIK DT.OF HEARING 8.8.2011 DT OF PRONOUNCEMENT 30 SEPT 2011 PER VIJAY PAL RAO JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 8.6.2009 OF THE CIT(A) FOR THE AY 2006-07. 2 THE ASSESSEE HAS RAISED THE FOLLOWING EFFECTIVE G ROUNDS IN THIS APPEAL: I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF FOLLOWING EXPENSES WI THOUT GIVING AN OPPORTUNITY OF BEING HEARD AND ON THE ALLEGED GROUND THAT THE APPELLANT IS MAINLY WORKING AS SUB AGENT FOR M/S EDELWEISS SECURITIES P TD AND M/S EDELWEISS COMMODIT IES AND ADVISORS LTD AND THEREFORE WAS NOT REQUIRED TO HAVE SEPARATE INDEPENDENT OFFICE AND THEREFORE EXPENSES ARE NOT ADMISSIBLE. SALARY 7 45 110/- RENT 1 48 000/- ELECTRICITY 21 260/- POSTAGE & TELEGRAM 72 160/- PRINTING & STATIONERY 53 120/- DEPRECIATION 5 837/- LEGAL FEES 25 000/- ACCOUNTING CHARGES 30 000/- OFFICE E 62 615/- DIWALI EXPENSES 115 121/- MIS EXPENSES 79 280/- TOTAL 12 57 503/- 2 ITA NO. 4451/MUM/2009 (ASST YEAR2006-07) II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 96 759/- BEING THE A LLEGED COMMISSION RECEIPT ON 8.7.2005 WHEN IN FACT NO SUCH RECEIPT IS REFLECTED IN THE BANK ACCOUNT AND ONLY ONE RECEIPT OF RS. 96 759/- ON 6.7.2005 IS REFLECTED I N THE BANK ACCOUNT. 3 GROUND NO.1 REGARDING THE DISALLOWANCE OF EXPENSE S. 3.1 THE ASSESSEE HAS SALARY INCOME FROM M/S CROSS B ORDER INDIA P LTD AND IS ALSO A PROPRIETOR OF M/S U K INVESTMENT HAVING COMMISSION INCOME FROM M/S EDELWEISS SECURITIES P LTD AND EDELWEISS COMMODITIES & ADVISO RS LTD. THE ASSESSEE HAS SHOWN RECEIPT OF RS. 29 43 853/- FROM M/S EDELWEISS SECU RITIES P LTD AND EDELWEISS COMMODITIES & ADVISORS LTD. FOR THE BUSINESS OF ARBITRAGE WORK . THE ASSESSEE CLAIMED TO HAVE EMPLOYED NUMBER OF PERSONS FOR CARR YING THE SAID BUSINESS OF ARBITRAGE AND THEREFORE CLAIMED TO HAVE INCURRED E XPENSES IN THIS REGARD. SINCE THE ASSESSEE FAILED TO PROVIDE THE BASIS OF COMMISS ION RECEIVED AND EXPENDITURE INCURRED AND FURTHER WHEN THE ASSESSEE WORKING AS A EMPLOYEE FROM 8 AM TO 8 PM THE ASSESSING OFFICER HELD THAT THE ASSESSEE IS NOT DOING ANY A ARBITRAGE WORK FOR M/S EDELWEISS SECURITIES P LTD AND EDELWEISS COMMO DITIES & ADVISORS LTD. AND RATHER IS AN EMPLOYEE OF THE SAME COMPANY. ACCORDI NGLY THE COMMISSION INCOME SHOWN BY THE ASSESSEE WAS TREATED AS SALARY BY THE ASSESSING OFFICER AND CONSEQUENTLY THE EXPENSES CLAIMED WERE DISALLOWED. 3.2 ON APPEAL THE ASSESSEE FILED DETAILS OF COMMIS SION RECEIVED FROM M/S EDELWEISS SECURITIES P LTD AND EDELWEISS COMMODITI ES & ADVISORS LTD. THE ASSESSEE ALSO FILED THE TDS CERTIFICATE IN THE FORM 16A SHOW ING THE TDS DEDUCTION FOR THE COMMISSION PAID TO THE ASSESSEE. THE CIT(A) TOOK A NOTE OF THE FACT THAT; FIRSTLY IN THE PRECEDING YEAR THE COMMISSION INCOME WAS ACCEPTED AND TAXED BY THE ASSESSING OFFICER AS INCOME FROM BUSINESS AND PROFESSION AND THE ASSESSING OFFICER HAS NOT 3 ITA NO. 4451/MUM/2009 (ASST YEAR2006-07) GIVEN ANY REASON FOR CHANGE OF HIS STAND AND SECOND LY THE AIR INFORMATION ITSELF SHOWS THAT IT IS NOT SALARY BUT COMMISSION. ACCORDI NGLY THE CIT(A) DIRECTED THE ASSESSING OFFICER TO ASSESS THE RECEIPT FROM M/S E DELWEISS SECURITIES P LTD AND EDELWEISS COMMODITIES & ADVISORS LTD. UNDER THE HE AD INCOME FROM BUSINESS AND PROFESSION INSTEAD OF SALARY INCOME. HOWEVER THE CIT(A) FOUND THAT THE COMMISSION CLAIMED TO HAVE BEEN PAID BY THE ASSESSE E IN FACT HAS BEEN SHOWN AS SALARY PAID. THE CIT(A) HAS FURTHER OBSERVED THAT OUT OF 14 PERSON THE PAYMENT OF SALARY IS VERIFIABLE ONLY IN RESPECT OF FIVE PERSO NS FROM THEIR INCOME TAX RETURN AND BANK ACCOUNTS. ACCORDINGLY THE CLAIM TO THAT EXTEN T WAS ALLOWED BY THE CIT(A). THE CLAIM REGARDING THE REMAINING 9 PERSONS WAS DI SALLOWED BY THE CIT(A). ACCORDINGLY THE CIT(A) DISALLOWED THE COMMISSION EXPENSES TO THE EXTENT OF RS. 6 19 000/- AS THE CLAIM WAS ALLOWED ONLY TO THE EXT ENT OF RS. 4 25 245/-. 3.2 SINCE NOBODY HAS CHALLENGED THE ORDER OF THE CI T(A) ON THE POINT OF TREATING THE COMMISSION RECEIPT AS INCOME UNDER THE HEAD BU SINESS AND PROFESSION AND PAID AND ALLOWING THE CLAIM OF COMMISSION PAID IN RESPECT OF FIVE PERSONS; THEREFORE THE SAID ISSUE STANDS REST AND ATTAIN TH E FINALITY AT THE STAGE OF THE CIT(A)S ORDER. THE ISSUE BROUGHT BEFORE US BY THE ASSESSEE IS ONLY WITH REGARD TO DISALLOWANCE4 OF EXPENDITURE TOWARDS 9 PERSONS. 3.3 BEFORE US THE ASSESSEE HAS FILED A PAPER BOOK CONTAINING 223 PAGES AS ADDITIONAL EVIDENCE IN SUPPORT OF THE CLAIM OF EXPE NDITURE. 4 ITA NO. 4451/MUM/2009 (ASST YEAR2006-07) 4 WE HAVE HEARD THE LD AR OF THE ASSESSEE AS WELL A S THE LD DR AND CAREFULLY PERUSED THE RELEVANT MATERIAL ON RECORD AND THE PRO POSED EVIDENCES. THE LD AR HAS SUBMITTED THAT THESE DOCUMENTS COULD NOT BE FIL ED BEFORE THE ASSESSING OFFICER OR THE CIT(A) AS VOUCHER FILE WAS NOT TRACEABLE AND THE LETTER FROM M/S EDELWEISS SECURITIES P LTD AND EDELWEISS COMMODITIES & ADVIS ORS LTD. REGARDING WRONG INFORMATION IN AIR COULD NOT BE OBTAINED BECAUSE THE ASSESSEE WAS NOT SO ADVISED BY THE PREVIOUS CONSULTANT. THEN THE LD AR OF THE ASSESSEE PLEADED THAT THE ADDITIONAL EVIDENCES MAY BE ADMITTED IN SUPPORT OF THE CLAIM OF THE ASSESSEE. 4.1 THE LD DR ON THE OTHER HAND HAS VEHEMENTLY OB JECTED TO THE ADDITIONAL EVIDENCES AND SUBMITTED THAT DESPITE OF SUFFICIENT OPPORTUNITIES THE ASSESSEE DID NOT FILE THE RELEVANT EVIDENCES BEFORE THE ASSESSIN G OFFICER OR BEFORE THE CIT(A). THE ASSESSEE HAS NOT EXPLAINED THE SUFFICIENT REASONS F OR NOT FILING THE SAID EVIDENCE BEFORE THE AUTHORITIES BELOW. HE HAS FURTHER CONTEN DED THAT THE ENTIRE ADDITIONAL EVIDENCES IS SELF MADE VOUCHERS WHICH ARE SELF SERV ING DOCUMENTS AND APPEARS TO BE AN AFTERTHOUGHT. 4.2 AFTER CONSIDERING THE RIVAL CONTENTION AND RELE VANT MATERIAL WE FIND THAT THE REASONS STATED BY THE ASSESSEE DO NOT INSPIRE CONFI DENCE. FIRSTLY NO SUCH PLEA WAS TAKEN BEFORE THE ASSESSING OFFICER OR THE LD CIT(A) THAT THE VOUCHER FILE IS NOT TRACEABLE AND THEREFORE THE ASSESSEE COULD NOT FI LE THE RELEVANT EVIDENCES. SECONDLY THE ENTIRE INTENDED ADDITIONAL EVIDENCES F ROM PAGES 1 TO 131 IS SELF MADE VOUCHERS FOR CASH PAYMENTS WHICH APPEAR TO HAVE BEE N PREPARED AND 5 ITA NO. 4451/MUM/2009 (ASST YEAR2006-07) MANUFACTURED BY THE ASSESSEE TO CREATE EVIDENCE IN SUPPORT OF THE CLAIM. ON THE BARE LOOK IT IS VISIBLE THAT THERE ARE DISCREPANCI ES OF THE SIGNATURE OF THE PAYEE ON THE VOUCHERS AND THEREFORE IN THE ABSENCE OF SALAR Y REGISTER THE SELF MADE VOUCHERS FILED BY THE ASSESSEE AT THIS STAGE FOR CA SH PAYMENT CANNOT BE ACCEPTED AS AN ADDITIONAL EVIDENCE. 4.3 SIMILARLY THE RENT RECEIPT AT PAGES 132 TO 144 OF THE PAPER BOOK ARE STATED TO BE ISSUED BY THE FATHER OF THE ASSESSEE IN RESPECT OF THE RESIDENTIAL HOUSE OF THE ASSESSEE. IN ANY CASE WHEN THE SIZE OF THE RESID ENTIAL ACCOMMODATION IS NOT SUFFICIENT FOR THE RESIDENTIAL PURPOSES THEN HOW COME ANY BUSINESS ACTIVITY WITH AS MUCH AS 14 PEOPLE CAN BE CARRIED FROM SUCH RESIDENT IAL ACCOMMODATION. FURTHER THE ARBITRAGE WORK HAS TO BE PERFORMED FROM THE O FFICE OF THE MAIN BROKER/AGENT AND THE RENT RECEIPT BEING SIGNED BY THE FATHER OF THE ASSESSEE ARE SELF SERVING DOCUMENTS ALSO CANNOT BE ACCEPTED AS AN ADDITIONAL EVIDENCE. 4.4 AS REGARDS THE ELECTRICITY PAYMENT THE ASSESSE E PROPOSED TO FILE THE SELF MADE VOUCHERS AT PAGES 145 TO 172 OF THE PAPER BOO K WHICH IN ANY CASE CANNOT BE CONSIDERED AS ADMISSIBLE EVIDENCE IN THE ABSENCE OF ELECTRICITY BILL. MOREOVER THE SAID EXPENDITURE IS CLAIMED FOR THE RESIDENTIAL PREMISES AND THE ADDITIONAL EVIDENCE REGARDING THE RENT IN RESPECT OF THE SAID PREMISES HAS ALREADY BEEN REJECTED BY US AS NOT FOUND CONVINCING. ACCORDINGL Y THE ADDITIONAL EVIDENCE FOR THE EXPENDITURE OF THE ELECTRICITY IN RESPECT OF TH E SAME PREMISES CANNOT BE ACCEPTED. IN VIEW OF THE DISCUSSION WE DECLINE TO ADMIT THE ADDITIONAL EVIDENCES 6 ITA NO. 4451/MUM/2009 (ASST YEAR2006-07) WITH RESPECT TO THE EXPENDITURE EXCEPT THE LETTER D ATED 14.7.2010 OF M/S EDELWEISS SECURITIES P LTD AND EDELWEISS COMMODITIES & ADVISO RS LTD. WHICH WAS ISSUED AFTER THE IMPUGNED ORDER OF THE CIT(A) REGARDING THE WRON G INFORMATION IN THE AIR RETURN. HENCE WE ADMIT THE ADDITIONAL EVIDENCE ONLY WITH R EGARD TO THE LETTER DATED 14.7.2010 OF THE ASL REGARDING THE WRONG INFORMATIO N IN THE AIR RETURN AND REJECT THE ENTIRE REST OF THE PROPOSED ADDITIONAL EVIDENCES. ON MERIT: 5 SALARY EXPENDITURE :- AS REGARDS THE CLAIM OF SALARY EXPENDITURE THE ASSESSEE CLAIMED SALARY PAYMENT OF RS. 7 45 110/-. THE CIT(A ) DISALLOWED THE CLAIM ON THE GROUND THAT THE DETAILS OF SALARY GIVEN BY THE ASSE SSEE WAS ONLY IN RESPECT OF FIVE PERSONS THEREFORE THE ASSESSEE FAILED TO PRODUCE THE RELEVANT DETAILS AND EVIDENCE TO PROVE THAT THE REMAINING NINE PERSONS HAVE RENDE RED THE SERVICES. 6 BEFORE US THE LD AR OF THE ASSESSEE HAS SUBMITTE D THAT THE ASSESSEE HAS ATTACHED LIST OF SALARY ON PAGE NO.45 OF THE PAPER BOOK TO WHOM IT IS PAID WITH SIGNATURE ON VOUCHES. THE CIT(A) HAS MENTIONED THAT SALARY TO SHRI HARESHWAR CHURI SWAPA CHURI HEMANGI CHURI SWATI CHURI HAS ALREADY BEEN ALLOWED. THE ASSESSEE HAS PAID COMMISSION TO THESE PERSONS BUT BY MISTAKE HE HAS ISSUED FORM 16 SO THEY HAVE SHOWN SALARY INCOME IN THEIR RETURN OF INCOME. IN THE LIST OF SALARY THE NAMES OF THE ABOVE PERSONS WERE NOT THERE. ALL THESE PERSONS ARE FULL TIME EMPLOYEE OF COMPANY THEY HAVE TO WORK AS PER DIRECTION OF THE E MPLOYER SUCH AS ATTEND BANK COLLECT CHEQUE PAY CHEQUES RECEIVE TELEPHONE AND ATTEND CLIENT ETC. WHILE ALLOWING CONVEYANCE THE ASSESSING OFFICER HAS ACCE DE THAT THE ASSESSEE AND FIVE EMPLOYEES. 7 ITA NO. 4451/MUM/2009 (ASST YEAR2006-07) 6.1 ON THE OTHER HAND THE LD DR HAS RELIED UPON TH E ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE HAS FAILED TO SUBSTANTIATE ITS CLAIM AS PAYMENT OF SALARY WAS NOT FOUND TO BE VERIFIABLE; THEREFORE THE SAME CANNOT BE ALLOWED. 7 WE HAVE CONSIDERED THE RIVAL CONTENTION AND RELEV ANT MATERIAL ON RECORD. WHEN THE ASSESSEE FAILED TO SUBSTANTIATE THE CLAIM BY PRODUCING THE RELEVANT EVIDENCES AND THE INTENDED ADDITIONAL EVIDENCES IS ALSO NOT FOUND TO BE ADMISSIBLE THEN IN THE ABSENCE OF ANY MATERIAL TO SHOW THAT T HE ACTUAL SERVICES RENDERED BY THE PERSONS FOR WHICH THE ASSESSEE HAS CLAIMED THE SALARY PAYMENT THE CLAIM OF THE ASSESSEE IS NOT ACCEPTABLE. THE ASSESSEE HAS NOT B ROUGHT ANY MATERIAL ON RECORD TO PROVE THAT ANY SERVICES WERE RENDERED BY THESE PERS ONS. MOREOVER THE PAYMENT IS IN CASH AND ONLY SELF MADE VOUCHERS ARE FILED. THE ASSESSEE FURTHER CLAIMS THAT THEY ARE REGULAR EMPLOYEES BUT DID NOT PRODUCE ANY EVIDE NCE SUCH AS SALARY REGISTER PROVIDENT FUND ESI CONTRIBUTIONS ETC. ACCORDINGLY WE DO NOT FIND ANY SUBSTANCE AND MERIT IN THE CLAIM OF THE ASSESSEE AND THE SAME IS REJECTED. 8 RENT:- AS REGARDS THE RENT THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAS PAID RENT TO FATHER THAT DOES NOT MEAN IT IS NOT FOR BUSINESS PURPOSE. AFTER STOCK EXCHANGE HOURS THE ASSESSEE HAS TO DO L OT OF WORK FROM RESIDENCE VIZ. COLLECT CHEQUE PAY CHEQUE HANDLE BANK ACCOUNT BI LLS ARE TO BE POSTED TRANSACTION OF DAY TO BE CONFIRMED TO CLIENTS ETC. STUDY ABOUT MARKET ANALYSE MARKET SUGGEST TO CLIENT WHICH SHARE TO PURCHASE AND WHICH SHARE TO SALE. THESE ARE DONE AFTER STOCK EXCHANGE HOURS ONLY AND MEETIN G WITH CLIENT WHICH IS DONE FROM RESIDENCE. THE ASSESSEE HAS PRODUCED RENT RECE IPT FROM FATHER WHICH IS ATTACHED AT PAGE 176 OF THE PAPER BOOK. 8 ITA NO. 4451/MUM/2009 (ASST YEAR2006-07) 8.1 ON THE OTHER HAND THE LD DR HAS RELIED UPON TH E ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE CLAIM OF RENT IS REGAR DING THE RESIDENTIAL ACCOMMODATION OF THE ASSESSEE WHEREAS THE WORK OF A RBITRAGE CANNOT BE PERFORMED OTHER THAN FROM THE OFFICE OF MAIN BROKE R HENCE THERE IS NO QUESTION OF ALLOWABILITY OF RENT. 9 WE HAVE CONSIDERED THE RIVAL CONTENTION AND PERUS ED THE RELEVANT MATERIAL ON RECORD. UNDISPUTEDLY THE RENT CLAIMED TO HAVE BEEN PAID TO THE FATHER OF THE ASSESSEE FOR THE RESIDENTIAL ACCOMMODATION. THE ASS ESSEE CLAIMED TO HAVE ENGAGED 14 EMPLOYEES BUT IT WAS CONFRONTED DURING T HE HEARING THAT WHEN THE ACCOMMODATION IN QUESTION IS NOT SUFFICIENT FOR RES IDENTIAL PURPOSES OF THE FAMILY OF THE ASSESSEE THEN HOW IT IS POSSIBLE TO HAVE AN OFF ICE IN WHICH 14 EMPLOYEES CAN WORK. MOREOVER THE WORK OF ARBITRAGE CARRIED OUT FROM THE OFFICE OF THE MAIN BROKER/AGENT ONLY AND THE ASSESSEE HAS ADMITTED THA T THE OFFICE HOURS ARE 8 AM TO 8 PM THEN IT IS IMPOSSIBLE THAT THE ASSESSEE WOULD HA VE WORKED FROM HIS RESIDENCE. THEREFORE WE DO NOT FIND ANY SUBSTANCE IN THE CLAI M OF THE ASSESSEE AND ACCORDINGLY AND THE SAME IS REJECTED. 10 ELECTRICITY CHARGES:- REGARDING THE ELECTRICITY CHARGES WE HAVE HEARD B OTH THE PARTIES AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. ELECTRICITY CHARGES ARE CLAIMED FOR THE SAME RESIDENTIAL PREMISES/ ACCOMMOD ATION. FURTHER IT IS PERTINENT TO NOTE THAT THE ASSESSEE HAS NOT FILED ANY EVIDENCE I N SUPPORT OF THE CLAIM OF ELECTRICITY CHARGES AND ONLY SELF MADE VOUCHERS ARE FILED WITHOUT ANY ELECTRICITY BILL WHICH HAS BEEN REJECTED BY US. IN ANY CASE WHEN THE RENT OF THE PREMISES HAS BEEN REJECTED BY US BY RECORDING THE REASONS THAT IN THE FACTS AND CIRCUMSTANCES 9 ITA NO. 4451/MUM/2009 (ASST YEAR2006-07) OF THE CASE AND IN THE ABSENCE OF ANY MATERIAL ON REC ORD IT IS NOT POSSIBLE THAT THE ASSESSEE WOULD HAVE CARRIED OUT ANY WORK FROM THE SA ID RESIDENTIAL PREMISES; THEREFORE THE CLAIM OF ELECTRICITY CHARGES IS ALSO REJECTED. 11 POSTAGE & TELEGRAM AND PRINTING & STATIONERY : THE ASSESSEE CLAIMED POSTAGE & TELEGRAM EXPENSES OF RS. 72 160/- AND PRINTING AND STATIONERY OF RS. 3 120/- WHICH WERE DISALLOWED BY THE LOWER AUTHORITIES ON THE RE ASONS THAT WHEN THE ASSESSEE IS DOING ARBITRAGE WORK IN THE OFFICE PREMISES OF THE MAIN BROKER AND GETTING COMMISSION THEN THE EXPENSES ARE INCURRED BY THE M AIN BROKER. FURTHER THERE IS NO PROOF OF INCURRING OF SUCH EXPENSES ON POSTAGE & TE LEGRAM AS WELL AS PRINTING & STATIONARY CHARGES. 11.1 BEFORE US THE LD AR OF THE ASSESSEE HAS SUBMI TTED THAT THE ASSESSEE HAS FILED VOUCHERS FOR POSTAGE & TELEGRAM AS WELL AS FOR PRIN TING & STATIONERY. THESE EXPENSES WERE INCURRED FOR THE PURPOSES OF THE ASSESSEES BU SINESS; THEREFORE THE SAME ARE ALLOWABLE. 11.2 ON THE OTHER HAND THE LD DR SUPPORTED THE ORD ERS OF THE AUTHORITIES BELOW. 12 WE HAVE CONSIDERED THE RIVAL CONTENTION AND RELE VANT RECORD. SINCE THE ASSESSEE DID NOT FILE ANY EVIDENCE BEFORE THE LOWER AUTHORITIES IN SUPPORT OF THE CLAIM OF POSTAGE & TELEGRAM AND PRINTING & STATIONE RY CHARGES AND CERTAIN DOCUMENTS WERE FILED IN THE FORM OF ADDITIONAL EVID ENCE WHICH WE HAVE REJECTED; THEREFORE IN THE ABSENCE OF ANY EVIDENCE WE DO NO T FIND ANY REASON TO INTERFERE WITH THE FINDINGS OF THE LOWER AUTHORITIES. ACCORDI NGLY WE DO NOT FIND ANY SUBSTANCE AND MERIT IN THE CLAIM OF THE ASSESSEE AND THE SAME IS REJECTED. 10 ITA NO. 4451/MUM/2009 (ASST YEAR2006-07) 13 DEPRECIATION: THE ASSESSEE CLAIMED DEPRECIATION OF RS. 5837/- O N MOTOR VEHICLE. THE ASSESSING OFFICER DISALLOWED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT THE COMMISSION INCOME WAS TREATED AS INCOME FR OM SALARY WHEREAS THE CIT(A) HAS REJECTED THE CLAIM ON THE GROUND THAT THERE IS NO ASSET WHICH IS USED FOR THE BUSINESS PURPOSES; THEREFORE THE DEPRECIATION CLAI MED IS NOT ALLOWABLE AGAINST THE COMMISSION INCOME. 13.1 BEFORE US THE LD AR OF THE ASSESSEE HAS SUBMI TTED THAT THE CIT(A) HAS ALLOWED THE CLAIM OF VEHICLE EXPENSES; THEREFORE DEPRECIAT ION ON THE SAME VEHICLE IS ALSO TO BE ALLOWED. HE HAS FURTHER SUBMITTED THAT THE ASSE SSEE IS SHOWING VEHICLE AS BUSINESS ASSET IN THE BALANCE SHEET. 13.2 ON THE OTHER HAND THE LD DR HAS SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 14 WE HAVE CONSIDERED THE RIVAL CONTENTION AND PERU SED THE RELEVANT MATERIAL ON RECORD. AS FAR AS THE CONVEYANCE OF VEHICLE EXP ENSES ARE CONCERNED THE CIT(A) HAS ALLOWED THE SAME MERELY FOR CONVEYANCE ON THEIR OFFICE AS WELL AS FOR CONTACT THE CLIENT; IN OUR VIEW THE ALLOWANCE OF CONVEYANC E AND VEHICLE EXPENSES DOES NOT AMOUNT TO ACCEPT A BUSINESS ASSET. SINCE THE ASSESS EE IS RECEIVING COMMISSION INCOME THAT TOO FOR THE ARBITRAGE WORK AT THE MAIN BROKERS OFFICE PREMISES; THEREFORE IT CANNOT BE SAID THAT IF ANY VEHICLE IS MAINTAINED BY THE ASSESSEE AND THE SAME IS BUSINESS ASSET. ACCORDINGLY WE DO NOT FIN D ANY REASON TO INTERFERE WITH THE ORDER OF THE CIT(A) AND THE CLAIM OF THE ASSESSEE I S REJECTED. 15 LEGAL FEES : WE HAVE HEARD THE LD AR AS WELL AS LD DR AND CON SIDERED THE RELEVANT MATERIAL ON RECORD. THE LD AR HAS SUBMITT ED THAT THE ASSESSEE HAD PAID 11 ITA NO. 4451/MUM/2009 (ASST YEAR2006-07) LEGAL FEE TO M/S S R CHHEDA & CO CHARTERED ACCOUNTA NTS FOR REPRESENTING CASE BEFORE THE OFFICER. ON THE OTHER HAND THE LD DR HAS SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 16 IT IS TO BE NOTED THAT THE ASSESSEE DID NOT FILE ANY EVIDENCE BEFORE THE LOWER AUTHORITIES IN SUPPORT OF ITS CLAIM. WHEN THE LD C IT(A) OBSERVED IN THE IMPUGNED ORDER THAT THE ASSESSEE FAILED TO ESTABLISH WITH THE EARNING OF THE COMMISSION INCOME; THEREFORE THE SAME IS NOT ALLOWABLE AGAINS T THE BUSINESS INCOME. SINCE THE INTENDED ADDITIONAL EVIDENCES ARE REJECTED BY US AN D THEREFORE IN ABSENCE OF ANY MATERIAL IN SUPPORT OF THE CLAIM WE DO NOT FIND AN Y REASON TO INTERFERE WITH THE ORDERS OF THE LOWER AUTHORITIES. THE CLAIM OF THE A SSESSEE IS ACCORDINGLY REJECTED. 17 ACCOUNTING CHARGES : THE ASSESSEE CLAIMED RS. 30 000/- TO MAINTAIN ACC OUNT S FOR ITS BUSINESS AS WELL AS TO FILE RETURN. 18 AT THE OUTSET WE FIND THAT THE ACCOUNTING CHARG ES HAVE BEEN ALLOWED BY THE LD CIT(A); THEREFORE NO GRIEVANCE IS LEFT ON THIS ACCOUNT. ACCORDINGLY WE DISMISS THIS CLAIM OF THE ASSESSEE AS STANDS INFRUCTUOUS AN D NOT ARISING FROM THE IMPUGNED ORDER. 19 OFFICE EXPENSES AND DIWALI EXPENSES : WE HAVE HEARD THE LD AR AS WELL AS THE LD DR AND CONSIDERED THE RELEVANT MATERIAL ON RECOR D. AS FAR AS THE OFFICE EXPENSES ARE CONCERNED IN VIEW OF OUR FINDING REGARDING REN T AND ELECTRICITY CHARGES WHEN THE WORK OF ARBITRAGE IS NOT PERFORMED FROM A SEPAR ATE OFFICE BUT FROM THE OFFICE OF THE MAIN BROKER THEN WE DO NOT FIND ANY SUBSTANCE IN THE CLAIM OF THE ASSESSEE ON OFFICE EXPENSES FOR EARNING THE COMMISSION INCOME. 12 ITA NO. 4451/MUM/2009 (ASST YEAR2006-07) 19.1 SO FAR AS THE DIWALI EXPENSES ARE CONCERNED THE ASSESSEE FAILED TO ESTABLISH WITH ANY MATERIAL TO SHOW THAT THE EXPENSES ARE INC URRED FOR THE PURPOSE OF BUSINESS OF EARNING THE COMMISSION INCOME WE DO NOT FIND AN Y REASON TO INTERFERE WITH THE FINDINGS OF THE LD CIT(A) ON THIS ISSUE; ACCORDINGL Y THE CLAIM OF THE ASSESSEE IS REJECTED. 20 MISCELLANEOUS EXPENDITURE : WE HAVE HEARD THE LD AR AS WELL AS THE LD DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. A S IT IS EVIDENT FROM THE RECORDS THAT THE ASSESSEE HAS FAILED TO PRODUCE ANY EVIDENC E IN SUPPORT OF THE CLAIM; THEREFORE THE ONUS OF PROVING THE CLAIM HAS NOT BE EN DISCHARGED BY THE ASSESSEE. ACCORDINGLY WE DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDINGS OF THE LD CIT(A) ON THIS ISSUE. 21 GROUND NO.2 IS REGARDING ADDITION ON THE BASIS O F AIR INFORMATION. 22 WE HAVE HEARD THE LD AR AS WELL AS THE LD DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. SINCE WE HAVE ADMITTED THE AD DITIONAL EVIDENCES COMPRISING A LETTER DATED 14.7.2010 OF M/S EDELWEISS SECURITIES LTD IN SUPPORT OF THE CLAIM THAT THERE WAS A MISTAKE IN THE AIR INFORMATION. ACCORD INGLY IN THE INTEREST OF JUSTICE WE REMAND THE ISSUE TO THE RECORD OF THE ASSESSING OFF ICER FOR VERIFICATION AND CONSIDERATION OF THE LETTER DATED 14.7.2010 IN THIS REGARD AND DECIDE THE ISSUE AFRESH AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER LAW. 13 ITA NO. 4451/MUM/2009 (ASST YEAR2006-07) 23 IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 30 TH DAY OF SEPT 2011. SD/ SD/ ( PRAMOD KUMAR ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 30 TH SEPT 2011 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR ITAT MUMBAI