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TMI Blog2010 (7) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... r assessment, appeal is dismissed - IT APPEAL NO. 266 OF 2010 - - - Dated:- 30-7-2010 - ADARSH KUMAR GOEL AND AJAY KUMAR MITTAL, JJ. Akshay Bhan for the Appellant. JUDGMENT Adarsh Kumar Goel, J. This appeal has been preferred by the assessee under Section 260A of the Income Tax Act, 1961 (in short "the Act") against the order dated 31.12.2009 passed by the Income Tax Appellate Tribunal, Chandigarh Bench 'B', Chandigarh (hereinafter referred to as "the Tribunal") in ITA No. 367/Chandi/2008 for the assessment year 2005-06, proposing to raise the following substantial questions of law:- ( i ) Whether in facts and circumstances of the case, the action of the authorities below in rejecting the claim of the assessee withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken by the CIT (A) that there was not sufficient evidence to rebut the claim of the assessee, the addition was not justified was not approved by the Tribunal. It was observed as under:- "15. The assessee worked out the total transactions of the year at Rs.33,31,48,866/-. However, the assessee claimed that 90% of the total turnover was on account of short term capital gains on which it has received commission @ 0.3% as against the commission of 1.50% received on long term share profits. However, in the statement of the director of the assessee company recorded during survey, after explaining the modus operandi of carrying on the business of providing share profits to various persons, in reply to Q. No.7, the director admitted that commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction totaling Rs. 2,72,535/- and 0.30% on short term transactions totaling to Rs. 9,44,940/-. The total commission received by the assessee during the year totals to Rs. 12,17,475/-. The Assessing Officer had accepted the total turnover declared by the assessee in its return of income. However, the bifurcation undertaken by the assessee on account of long term and short term transactions had not been accepted by the Assessing Officer in the absence of the books of account nor the rate of commission earned was accepted. After applying a rate of 2% to the total turnover shown by assessee, the Assessing Officer worked the income at Rs. 66,62,980/-. 17. The issue to be addressed by us is limited to the rate of commission/service charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee had adopted different stands regarding rate/s of commission earned on share profit transactions. No evidence to justify any particular rate of commission charged by the assessee had been filed on record. In the absence of any evidence brought to our notice, we are of the view that the exercise is hypothetical as varying rates of commission are put forward by the assessee or his counsel at various junctures. In the absence of any evidence filed regarding the rate of commission charged by the assessee for the aforesaid share profit transactions issued during the year, we are left with no alternative but to estimate the rate of commission charges for giving the share profits. In the facts and circumstances of the case, rate of 0.75% be a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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