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2017 (12) TMI 130 - HC - Income TaxExpenditure made on account of 'certified data purchase' - Tribunal has recorded a finding of fact that the assessee had actually engaged in the activity of the sale of data to Bajaj Allianz for which it had purchased certain data from another entity - Held that:- The finding of the Assessing Officer and the argument advanced on that basis that the assessee had failed to establish the contents of utility of the data and the process by which it was obtained etc. are largely irrelevant to the issue of the assessment of the income of the assessee. Once it had been established and accepted by the department that the assessee was infact engaged in the activity of purchase and sale of data and had generated revenue therefrom, the finding as to its utility etc., was not a matter that was decisive. While considering the claim of expenditure during the assessment. It is settled principle of Income Tax Law that the Assessing Officer cannot sit in the seat of the assessee and try to conduct the business in the manner he considers prudent. Thus the finding of fact recorded by the Tribunal has not been shown to be perverse. - Decided in favour of assessee. Disallowance of salary expenditure - Held that:- Though the revenue does not dispute the existence of form-16 in respect of the salary disbursement, yet, the existence of such certificates is not enough to establish that such expenditure was genuine or that such payments had actually been made by the assessee. Neither the assessee produced the salary payment register nor it produced the vouchers in support of the salary payments which the Assessing Officer noted to have been made @ ₹ 2000/- to ₹ 8000/- each nor the assessee established total number of its employees, nor it disclosed their names, addresses etc. nor the assessee produced any affidavits of confirmation by any such employee acknowledging the salary payment as claimed by the assessee. The Tribunal has clearly misconstrued this issue and hurriedly concluded that the Assessing Officer had not pointed out the deficiency of vouchers. The finding of the Tribunal is thus, clearly not supported by any evidence. It is, therefore, perverse.Therefore, instead of remanding the matter to the Tribunal to decide the matter afresh, we consider it proper to remand the matter to the CIT (Appeals), which authority had dismissed the appeal of the assessee for his non-appearance. Part disallowance the 'Referral Fee' - Held that:- The expenditure on account of 'Referral Fee' is supported by complete data voucher, form 16A with regard to TDS, PAN numbers of the persons giving their references and also TIN payments made, datewise. Though, the Tribunal found that the expenditure was duly established and genuine, nothing has been shown to doubt the correctness of the finding of the Tribunal in this regard. Accordingly, we find that the Tribunal has not committed any error in accepting the claim of the assessee with regard to the expenditure on account of payment of 'Referral Fee'. The said finding is a finding of fact based on evidence on record. Therefore, the question no.3 raised by the revenue is answered in favour of the assessee
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