JUDGMENT 1. This instant appeal under section 260A of the Income-tax Act, 1961, for the assessment year 1998-99 has been preferred by the appellant herein assailing the order dated May 20, 2011, passed by the learned Income-tax Appellate Tribunal, Jaipur Bench, "B", Jaipur (in short "the ITAT"), sustaining the disallowance to the extent of Rs. 19,93,474 which was the amount claimed as commission paid/payable to the sub-brokers by the appellant. 2. The brief facts of the case are summarised herein below : The appellant-assessee was a delcredere selling agent of M/s. Hind Spinners and M/s. Hind Syntex Ltd., Dewas, pursuant to the agreements for selling of the yarn manufactured by these companies in the territory of District of Bhilwara, Rajasthan, the appellant received commission to the extent of Rs. 45,81,710 and a sum of Rs. 19,93,474 was claimed as brokerage payable on the sale effected through sub-brokers. The appellant accordingly claimed the said amount of Rs. 19,93,474 as had been paid/ payable to various sub-brokers, who acted as sub-brokers, the appellant claimed that they in fact, provided services and were paid accordingly. 3. The learned Deputy Commissioner of Income-tax, Circle, Bhilwara, called for the relevant details from the appellant-assessee and, vide order dated March 30, 2001, disallowed the commission/brokerage claimed by the appellant. The learned Assessing Officer, during the course of hearing, however, required the appellant to : (i) furnish the details of sales effected through sub-brokers ; (ii) lead evidence to the fact that the sales were made through sub-brokers ; (iii) details of outstanding from the parties to whom sales of yarn were made through sub-brokers ; and (iv) to provide sub-brokers with their books of account and record to verify the genuineness of the brokerage paid to the sub-brokers. 4. It is stated by the learned Assessing Officer, in the order that neither the appellant-assessee produced the account books of sub-brokers till the conclusion of the proceedings nor any evidence had been led to show that any sales were made through the said sub-brokers. The learned Assessing Officer, further observed that not a single penny was paid to the sub-brokers as brokerage and the amount was simply credited in their respective accounts. In fact, he observed that not even amount of this year but even commission of earlier years was not paid to the said sub-brokers and for years together. The learned Assessing Officer, further observed that not a single penny was paid to the sub-brokers as brokerage and the amount was simply credited in their respective accounts. In fact, he observed that not even amount of this year but even commission of earlier years was not paid to the said sub-brokers and for years together. It was further observed by him that how the small time sub-brokers would work for the appellant-assessee without even receiving any amount towards the services they claimed to have rendered and, accordingly, came to the conclusion that the appellant-assessee did not incur the said expenditure, it was merely claimed but no services were rendered by the said sub-brokers. 5. Aggrieved by the order passed by the learned Assessing Officer, the appellant-assessee preferred an appeal before the learned Commissioner of Income-tax (Appeals) (in short "the CIT (A)"), who considered the matter at length and initially, remanded the matter back to the learned Assessing Officer to verify the veracity of the details submitted by the appellant-assessee before the learned Commissioner of Income-tax (Appeals) as well as affidavits filed before him (Commissioner of Income-tax (Appeals)). The learned Assessing Officer in remand proceedings conducted detailed inquiry as was directed by the learned Commissioner of Income-tax (Appeals) and after detailed remand report furnished to the Commissioner of Income-tax (Appeals), came to the conclusion that even signatures on the affidavits so filed were different from the one on summons under section 131 of the Income-tax Act. Even one of the sub-brokers, namely, Shri Shivraj Jain, gave a statement under section 131 of the Income-tax Act in his assessment proceedings for the assessment year 1998-1999, as to having not given an affidavit and did not confirm the commission paid by the appellant-assessee to him. He further stated that he did not even work as sub-broker for the appellant-assessee. It may be observed that the appellant furnished affidavits of the said sub-brokers before the learned Commissioner of Income-tax (Appeals). 6. He further stated that he did not even work as sub-broker for the appellant-assessee. It may be observed that the appellant furnished affidavits of the said sub-brokers before the learned Commissioner of Income-tax (Appeals). 6. After considering the issue at length and the remand report of the Assessing Officer, the learned Commissioner of Income-tax (Appeals) confirmed the disallowance holding that (i) the appellant had failed miserably to prove the genuineness of payment of so-called brokerage to the sub-brokers ; (ii) certain glaring irregularities have been found in the affidavits filed on behalf of the sub-brokers ; (iii) the genuineness of the affidavits are questionable ; (iv) there was no provision in the sales agency agreement with the principal company, wherein the agent (appellant) has been authorised to engage sub-brokers ; (v) the fact was that not a single penny out of commission earned was paid to the brokers in the form of brokerage which resulted in several lakhs of rupees ; and, lastly, it was observed by the Commissioner of Income-tax (Appeals) that payment was not made even in the subsequent years. 7. Thus, the learned Commissioner of Income-tax (Appeals), ultimately came to the conclusion that the sub-brokers did not render any service and not a single penny out of substantial commission due to them was paid and it does not accord with the human probabilities, thus sustained the disallowance. 8. Aggrieved by the said appellate order, the appellant preferred an appeal before the learned Income-tax Appellate Tribunal, Jaipur Bench, Jaipur (in short "the ITAT"). The learned Income-tax Appellate Tribunal, vide its order dated May 20, 2011, upheld the disallowance made by the learned Assessing Officer as well as confirmed by the learned Commissioner of Income-tax (Appeals), by reiterating the facts stated by the learned Commissioner of Income-tax (Appeals). It was further observed that under similar circumstances, the learned Income-tax Appellate Tribunal for the immediate past assessment year, i.e., 1997-98 confirmed the disallowance to the extent of Rs. 9,78,461 and that the issue became final so far as the assessment year 1997-1998, is concerned, as it was not challenged in further appeal before this hon'ble court. While confirming the disallowance, the learned Income-tax Appellate Tribunal even held that some of the sub-brokers are not assessed to income-tax though they have heavy credit balances. 9,78,461 and that the issue became final so far as the assessment year 1997-1998, is concerned, as it was not challenged in further appeal before this hon'ble court. While confirming the disallowance, the learned Income-tax Appellate Tribunal even held that some of the sub-brokers are not assessed to income-tax though they have heavy credit balances. It was further observed that in some of the cases, since the recipients did not come forward or since the amount was not remitted/ paid, the amount was written off in the books of the appellant meaning thereby that the amount was not to be remitted as no services were rendered and no amount was payable. The learned Income-tax Appellate Tribunal considered the affidavits as well as the submissions of the appellant in detail, and observed as under : "It is true that sub-brokers are having substantial credit balances M/s. Shivam Agency is having a credit balance of Rs. 2,78,878 and its income is below Rs. 40,000 and, therefore, no return of income was filed. The closing balance in respect of M/s. Nakoda Yarn as on March 31, 2008, is Rs. 13,24,400 and its income was below Rs. 40,000 and, therefore no return of income was filed. The credit balance in respect of M/s. Shivam Agency as well as M/s. Nakoda Yarn remained the same till March 31, 2003. A sum of Rs. 2,24,553 has been written off in the account of M/s. Nakoda Yarn. Similarly, Lodha Yarn Suppliers is having credit balance of Rs. 13,29,643 as on March 31, 1998, and the same continued till March 31, 2004, as per the details filed on March 29, 2002. This party has also stated in the affidavit that it has not filed income-tax return because income is below Rs. 40,000. In the case of M/s. Surekha Synthetics, the credit balance as on March 31, 1998, is Rs. 8,01,382 and its income was below the taxable limit. In the case of M/s. CMD Yarn Suppliers the credit balance is Rs. 13,67,436 and the same continued up to March 31, 2004." 9. It further observed that : "The other details filed in the paper book clearly show that the commission so debited in the account of sub-brokers is not genuine. In the case of M/s. Dyna Collections, the closing credit balance is Rs.14,13,555 and the same continued up to March 31, 2007. A sum of Rs. It further observed that : "The other details filed in the paper book clearly show that the commission so debited in the account of sub-brokers is not genuine. In the case of M/s. Dyna Collections, the closing credit balance is Rs.14,13,555 and the same continued up to March 31, 2007. A sum of Rs. 1,84,276 has been written off during the financial year 2003-04. In the affidavit, the proprietor of M/s. Dyna Collections stated that he is an income-tax assessee. However, he has not shown about the extent of income disclosed. No prudent businessman having an income of less than Rs. 40,000 will be keeping the amount outstanding. It is noticed that in most of the cases of the sub-brokers, the credit balance remained the same for the last so many years." 10. The learned Income-tax Appellate Tribunal further referred to the judgments of the hon'ble apex court, in the case of CIT v. Durga Prasad More [1971] 82 ITR 540 (SC) and of Sumati Dayal v. CIT [1995] 214 ITR 801 (SC) . Thus, all the three lower authorities came to the conclusion that no services were rendered by the sub-brokers, there was no necessity to engage services of brokers/sub-brokers in the light of the agreement with the principal company, and further not a single penny was paid to the sub-brokers for years together. One is required to arrive at the conclusion on the basis of human probability. Human probability cannot be ignored for persons like sub-brokers or men of no means who render services to some but do not receive any amount for years together. None would leave hard earned money, for their day-to-day needs if actual services have been rendered by the said persons. It was upon the appellant to discharge the onus which heavily lay on him and he miserably failed for the reasons stated herein before. The hon'ble apex court, in the case of CIT v. Durga Prasad More [1971] 82 ITR 540 (SC) , has observed as under (page 545) : "Now, coming to the question of onus, the law does not prescribe any quantitative test to find out whether the onus on a particular case has been discharged or not. It all depends on the facts and circumstances of each case. In some cases, the onus may be heavy whereas, in others, it may be nominal. There is nothing rigid about it. It all depends on the facts and circumstances of each case. In some cases, the onus may be heavy whereas, in others, it may be nominal. There is nothing rigid about it. Herein the assessee was receiving some income. He says that it is not his income but his wife's income. His wife is supposed to have had two lakhs of rupees neither deposited in banks nor advanced to others but safely kept in her father's safe. The assessee is unable to say from what source she built up that amount. Two lakhs before the year 1940 was undoubtly a big sum. It was said that the said amount was just left in the hands of the father-in-law of the assessee. The Tribunal disbelieved the story, which is prima facie a fantastic story. It is story that does not accord with human probabilities. . . Science has not yet invented any instrument to test the reliability of the evidence placed before a court or tribunal. Therefore, the courts and tribunals have to judge the evidence before them by applying the test of human probabilities. Human minds may differ as to the reliability of a piece or evidence." 11. The hon'ble Supreme Court in yet another case, of Sumati Dayal v. CIT [1995] 214 ITR 801 (SC) has observed as under (page 809) : "In our opinion, the majority opinion after considering the surrounding circumstances and applying the test of human probabilities has rightly concluded that the appellant's claim about the amount being winnings from races is not genuine. It cannot be said that explanation offered by the appellant in respect of the said amount has been rejected unreasonably and that finding that the said amounts are income of the appellant from other sources is not based on evidence." 12. The learned counsel for the appellant-assessee Mr. Gargeiya took us through the various orders and submitted that substantial questions of law arise out of the order of the learned Income-tax Appellate Tribunal and that the order passed by the learned Income-tax Appellate Tribunal is perverse and that the learned Income-tax Appellate Tribunal has recorded finding which is perverse in nature to arrive at the findings and contrary to the facts on record. We have considered the submissions of the learned counsel for the appellant and have perused the order of the learned Income-tax Appellate Tribunal and are not persuaded to agree with the learned counsel as he has failed to point out the perversity in the said order. It is essentially a finding of fact not only recorded by the Tribunal but by the learned Assessing Officer as well as by the first appellate authority that no services were rendered by the sub-brokers, and no amount was paid to them either during the year or even later. 13. It being essentially a finding of fact, the appeal is liable to be dismissed as no substantial question of law arise out of the order passed by the learned Income-tax Appellate Tribunal. The appeal, therefore, fails and is dismissed. *******