TMI Blog1991 (3) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... accounting year is the calendar year. In September, 1976, the shareholding of the assessee-company was altered to some extent by transfer of certain shares to one H. K. Basavaraj and another set of shares was transferred to a group called the Singh group. However, the business of the company continued as hitherto. During the previous years, the assessee-company was paying commission to a Bombay company at the rate of 5% of its turnover as commission charges. The order of the Income-tax Officer shows that this commission was paid for the services rendered by the Bombay company to the assessee in diverting tourists to the assessee's hotels at Mysore and also helping the assessee in securing adequate supplies and equipment from time to time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement between the parties was forthcoming whereunder the assessee had to pay commission to the Bombay company. Consequently, the claim of the assessee was disallowed and the assessment order was modified. This order was affirmed by the Appellate Tribunal. The Appellate Tribunal has repeated the same reasons as were given by the Commissioner. However, the Appellate Tribunal states that there was no doubt that, as a customary practice, the commission was being paid since 1974 onwards. When the Tribunal has given a finding that it was customary to pay the commission since the year 1974, the burden was on the Revenue to establish that the situation stood altered resulting in a situation that the assessee need not pay the commission thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... September 3, 1978. The decision to make the payment is not by virtue of a new resolution dated September 3, 1978. The resolution of the said date is a reflection of the realisation of the mistake that was committed earlier. The order of the Income-tax Officer is very clear that the services were in fact rendered to the assessee-company by the Bombay company by diversion of tourists, etc. The burden in the instant case, having regard to the circumstances of the case, is quite heavy on the Revenue to establish that no services were rendered and the payment of commission was unauthorised or not warranted by any business considerations. We have, no doubt, in our mind that the commission in the instant case should have been paid and accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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