2014 (4) TMI 1222 - AT - Income Tax

Estimation of income - determination of percentage of sales - Hawala Income / Hawala Commission - allegations that the transaction with the sister concerns group concerns transactions which are done to inflate sale for obtaining bank facilities on which no commission is earned - During the course of survey, it was found that the assessee is not actually doing business in iron/steel, but is mainly engaged in issuing bogus sale bills without actually delivering the goods, except in a very few transactions. Held that - In the first round, the Tribunal has set aside the matter to the file of the Assessing Officer only for the purpose of examining the expenses and insofar as the assessment of net commission is concerned, the same was upheld at 1% of the turnover as determined by the Assessing Officer. Now, in the third round of proceedings, the assessee has taken a plea that the turnover pertaining to its sister concerns should be excluded from the total turnover for the purpose of estimating the commission income. There is no observation or finding of the Tribunal on this score. Even in the second round of proceedings, the Tribunal has set aside the issue purely for examination of expenditures only. In this order also, there is no whisper with regard to the plea which has been raised by the assessee in this round of proceedings. Once the mater has reached upto the stage of the Tribunal and categorical directions have been given for framing the assessment, the Assessing Officer cannot travel beyond the scope and ambit of the directions of the Tribunal. Appeal dismissed - Decided against the assessee.

Summary

Issues Involved:
1. Determination of correct hawala income in the hands of the assessee.
2. Exclusion of turnover related to sister concerns from total turnover for computing commission income.

Detailed Analysis:

1. Determination of Correct Hawala Income:

The primary issue across all the assessment years (1996-97, 1997-98, and 1998-99) is the determination of the correct hawala income in the hands of the assessee. The assessee was found to be involved in issuing bogus sale bills without actual delivery of goods, primarily engaged in hawala transactions. The Assessing Officer (AO) initially estimated the income at 1% of the total sales turnover. This estimation was upheld by the Tribunal in the first round of appeals, where it was noted that "1% hawala commission rate cannot be said to be an unrealistic rate." The Tribunal directed that the net income should be computed by reducing office expenses and other necessary expenses from this 1% commission.

In subsequent proceedings, the AO followed the Tribunal's directions, allowing certain administrative expenses and determining the total income accordingly. The Tribunal, in the second round, reiterated that the net commission rate of 1% for estimating the commission income stood final, and only the genuineness of the administrative expenses needed examination.

2. Exclusion of Turnover Related to Sister Concerns:

In the third round of proceedings, the assessee raised a new plea that the turnover related to sister concerns should be excluded from the total turnover for computing the commission income. The assessee argued that no commission income was earned from transactions with sister concerns, supported by affidavits from the sister concerns.

The learned Commissioner (Appeals) rejected this plea, stating it was raised for the first time and was an afterthought. The Commissioner noted, "While raising bills in the name of the sister concern also, there is a profit element incorporated." The Tribunal upheld this view, emphasizing that the scope of the assessment was limited to the directions given in earlier rounds, which did not include examining the exclusion of sister concern turnover. The Tribunal concluded that "the plea which has been taken by the assessee before the learned Commissioner (Appeals) or may be before the Assessing Officer, cannot be entertained in the third round of the proceedings."

The Tribunal also dismissed the reliance on the decision in Anil Goel Exim Pvt. Ltd., as it was not applicable to the present case. The Tribunal clarified that "the decision has been rendered in the case of a different assessee and has no relevance or bearing in the present case."

Conclusion:

The appeals for the assessment years 1996-97, 1997-98, and 1998-99 were dismissed. The Tribunal upheld the determination of hawala income at 1% of the total turnover and rejected the plea for excluding turnover related to sister concerns, as it was not raised in earlier proceedings and was beyond the scope of the Tribunal's directions. The order pronounced on 4th April 2014, concluded the matter with the dismissal of the assessee's appeals.