2015 (9) TMI 996 - AT - Income Tax

Commission/ brokerage @ 1.5% on the total bank entries determined by CIT(A) - Held that - As the observations made by the AO in the remand report were replied by assessee. However, they have not been considered by ld. CIT(A). We have examined the case of M/s Joy Commercial Pvt. Ltd. (with which the assessee claimed to have business transactions), wherein AO in the remand report, inter alia, observed that, a perusal of the details filed revealed that the bank statement for only a part of the year was filed and not the statement for the full year as specifically asked for in the summons issued . In the reply filed by assessee, the assessee has categorically stated that, AO never requisite the parties to whom he summoned to submit the copies of the bank statement for full year. He had merely asked the parties to show him the bank statement for financial year 2005-06, which had been duly perused by him during the course of attendance of the summoned parties wherein he asked from the party the relevant part of the copy of the bank statement wherein transaction had taken place with the assessee. He also perused the books of account and bills and vouchers which had been produced before him, but the AO had observed contrary to the same. Similar is the position in regard to other parties which we do not propose to go into detail - matter be restored to the file of AO for de novo consideration - Decided in favour of assessee for statistical purposes

Issues:
1. Consideration of facts and legal judgments by CIT(A)
2. Nature of business of the assessee
3. Non-consideration of submissions by CIT(A)
4. Confrontation of material by AO
5. Estimation of income by CIT(A)
6. Identification of transactions by the assessee
7. Restoration of the matter to the AO

Analysis:

1. Consideration of facts and legal judgments by CIT(A):
The appellant raised concerns regarding the CIT(A)'s failure to consider the facts of the case and legal judgments of various courts while deciding on the addition of income based on estimation. The appellant argued that the CIT(A) did not adequately review the submissions and legal precedents cited in the appeal. The Tribunal noted the appellant's contentions but did not delve into the specifics of the legal judgments cited.

2. Nature of business of the assessee:
The Assessing Officer (AO) questioned the nature of the assessee's business, particularly in relation to transactions involving unlisted companies without the suffix "Ltd." or "Pvt. Ltd." The AO suspected the credibility of these transactions and issued notices to related concerns. The AO ultimately concluded that the assessee was an entry operator, engaging in accommodation entries without actual business activities, leading to the addition of income.

3. Non-consideration of submissions by CIT(A):
The appellant contended that the CIT(A) failed to consider the submissions filed during the proceedings. The Tribunal observed that the CIT(A) did not adequately address the detailed reply filed by the assessee, leading to a lack of consideration of crucial aspects of the case.

4. Confrontation of material by AO:
The AO was criticized for not confronting the material to the assessee before passing the order, which was deemed against the Principle of Natural Justice. The Tribunal acknowledged this issue but did not provide detailed analysis or ruling on this specific point.

5. Estimation of income by CIT(A):
The CIT(A) was faulted for estimating the income of the assessee based on conjecture and surmises without substantial evidence. The Tribunal noted the lack of concrete logic behind the income estimation process but did not provide a detailed critique or ruling on the estimation methodology.

6. Identification of transactions by the assessee:
The assessee challenged the identification of transactions and the assumption of earning commission income without concrete evidence. The Tribunal recognized the concerns raised by the assessee but did not delve into the specifics of the transactions or the commission income determination.

7. Restoration of the matter to the AO:
In light of the contradictions in the findings and the failure to consider crucial submissions, the Tribunal decided to set aside the CIT(A)'s order and restore the matter to the AO for fresh consideration after affording the assessee a reasonable opportunity to present their case. The appeal was allowed for statistical purposes only, emphasizing the need for a thorough review by the AO.

This detailed analysis of the judgment highlights the key issues raised by the appellant and the Tribunal's responses, providing a comprehensive understanding of the legal proceedings and decisions involved in the case.

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