2019 (10) TMI 1074 - AT - Income Tax

Rate of commission on the business of providing accommodation entry - assessee company is an entry provider - Commission on credit entries appearing in the bank account of the assessee - HELD THAT - Assessees case is almost similar to the facts of the case relied upon by the Ld. Counsel for the assessee passed in the case of M/s Sorus Power Pvt. Ltd. 2018 (11) TMI 787 - ITAT DELHI Directing the AO to estimate the average commission @ 0.30% (30 paise to 1 per 100) on credit entries appearing in the bank account of the assessee. In the result the appeal filed by the assessee is partly allowed

Summary

Issues Involved:
1. Validity of the assessment order passed under section 143(3) of the Income Tax Act, 1961.
2. Legitimacy of the lump-sum addition of ?13,98,821 as commission income.
3. Assessment of the addition based on presumption and guesswork.
4. Consideration of audited accounts and declared income.
5. Legality of the addition of ?13,98,821 based on total credits in the bank account.
6. Determination of the appellant company’s business activities.
7. Opportunity provided to the assessee before completing assessment proceedings.
8. Addition of ?5,42,460 based on interest income in Form 26AS.
9. Use of remand report without confronting the appellant.
10. Right to amend, alter, or add grounds of appeal.

Issue-wise Detailed Analysis:

1. Validity of the Assessment Order:
The assessee challenged the assessment order dated 30.03.2016 and the appellate order dated 30.05.2018, claiming they were perverse to the law and facts due to improper procedure. The Tribunal consolidated the appeals for convenience as the facts were identical across cases.

2. Legitimacy of Lump-sum Addition:
The Assessing Officer (AO) added ?13,98,821 as commission income at a rate of 0.60% based on presumption. The assessee argued this addition was unsupported by material evidence and was based on guesswork. The CIT(A) upheld this addition, which the assessee contested.

3. Assessment Based on Presumption and Guesswork:
The assessee contended that the AO made the addition without invoking section 145 of the Act and failed to appreciate that similar income was accepted in preceding and subsequent years. The AO's reliance on presumption without concrete evidence was challenged.

4. Consideration of Audited Accounts:
The assessee argued that its accounts were audited, and the Profit & Loss Account and Balance Sheet were filed accordingly. The AO and CIT(A) failed to appreciate that the declared income was based on audited accounts, which had been accepted as correct in previous assessments.

5. Legality of Addition Based on Bank Credits:
The AO added ?13,98,821 to the income, assuming it as commission on total bank credits of ?23,31,36,876. The assessee maintained proper books of account, and the transactions were reflected therein. The AO's addition was deemed based on imagination and guesswork.

6. Determination of Business Activities:
The AO presumed the assessee was providing accommodation entries without supporting material. The assessee argued that its declared profits were accepted, and the AO's presumption was unfounded.

7. Opportunity Before Assessment:
The assessee claimed it was not given a reasonable opportunity to present its case before the assessment was completed. The AO's arbitrary and capricious approach was contested.

8. Addition Based on Interest Income:
The AO added ?5,42,460 based on interest income in Form 26AS, which the assessee claimed was already included in the gross sale proceeds. The CIT(A) did not consider the explanation and evidence provided by the assessee.

9. Use of Remand Report:
The remand report received on 01.05.2017 was used by the CIT(A) without confronting the assessee, violating principles of natural justice. The assessee argued this was illegal.

10. Right to Amend Grounds of Appeal:
The appellant reserved the right to amend, alter, or add grounds of appeal during the hearing.

Tribunal's Decision:
The Tribunal considered the alternative request of the assessee, referencing a similar case where the ITAT Delhi Bench estimated the commission at 0.30%. The Tribunal found the facts and circumstances of the present case similar and directed the AO to estimate the commission at 0.30% on credit entries in the assessee's bank account. The appeal was partly allowed, and the same findings applied to other similar appeals.

Conclusion:
The Tribunal modified the AO's assessment, reducing the commission rate from 0.60% to 0.30%, and directed a re-computation of income, considering the income already declared by the assessee. All five appeals were partly allowed for statistical purposes.