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TMI Blog2015 (5) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... hem that the company cited above is providing accommodation bills. In the said statement, the director Shri Mukesh Jain confessed that he was acting at the behest and upon the instructions of the assessee herein. The Chartered Accountant also submitted that he conducted the audit on the basis of Trial Balance only, i.e., no evidence regarding purchase and sale of goods was examined by the Chartered Accountant also. Subsequently, the department carried out search and seizure operations u/s 132 of the Act in the case of M/s ABG Shipyard Ltd and group concerns on 07.10.2009. On the very same day, the assessee was also subjected to search operations and a statement u/s 132(4) of the Act was taken from the assessee. At that point of time, the assessee was furnished with a copy of statement given by Shri Mukesh Jain and the C.A shri Nirmal Doshi, referred above. The assessee admitted that he had used the above said concerns for providing accommodation entries to various parties on receipt of nominal commission. He also submitted that he has shared part of commission to the above said persons. Subsequently a statement was recorded from the assessee u/s 131 of the Act on 19.11.2009. In tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee. Though the assessee submitted in the letter dated 12.12.11 filed before the AO that he was getting commission @ 0.25%, the AO took the view that the assessee should be earning commission income @ 1.50%. Accordingly he estimated the commission income @ 1.50% of the aggregate amount of deposits made in the above said bank account in each of the year and assessed the same as income of the assessee. 7. The Ld.CIT(A) confirmed all the additions made by the assessing officer in all the years under consideration and hence the assessee has filed these appeals before us. 8. We have heard the parties and perused the record. We notice that the assessing officer has assessed the income declared by the assessee and also assessed commission income estimated by him. Having assessed the income, the assessing officer has also proceeded to assess the cash outgoings by way of investments also. There should not be any doubt that the same would result in double assessment of same income. Further, we notice that the assessing officer has rejected the financial statements filed along with the returns of income, but used the details available therein for the purpose of assessments. Besides the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he hands of the assessee. Whereas, in the case of M/s PACL India Ltd (supra), the assessee had filed original returns of income u/s 139(1) of the Act and the period for issuing notice u/s 143(2) of the Act had expired by the time search took place in the hands of the above said assessee. Under these set of facts, the Tribunal held that the "Concluded assessments" (i.e., those assessments where the period for issuing notices u/s 143(2) of the Act had expired) can be disturbed only on the basis of incriminating materials found during the course of search. Since the impugned assessments are the original assessments in the hands of the assessee, in our view, the assessee cannot take support of the decision rendered by the Delhi bench of Tribunal. In our view, the assessing officer is entitled to examine all the issues, since these assessments shall not fall in the category of "concluded assessments" in the absence of original return of income filed u/s 139 of the Act. Accordingly, we reject this ground also. 11. Another legal ground urged by the assessee is that the Column no.7 of notice of demand issued u/s 156 of the Act was left blank and hence the said notice was invalid. In our v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested by the assessee in all the years is in respect of addition made under the head "Unexplained investments". We have earlier noticed that the assessee had furnished financial statements along with the returns of income filed for the years under consideration. The assessee had disclosed the payments made towards Life Insurance premium schemes, Public provident fund schemes. Besides, the assessee had also disclosed certain loans and advances and Investment in shares. Since the assessing officer rejected the financial statements, he assessed all the above said items as income of the assessee. We have also earlier noticed that the assessing officer has assessed the income declared by the assessee, which was included in the financial statements. Further, the assessing officer has given credit for the drawings disclosed in the financial statements. Hence, it is seen that the assessing officer, after having rejected the financial statements, has again considered the same for making assessment of income and also for assessing insufficient drawings. In our view, the said approach of the assessing officer is not justified. We are of the view that the assessing officer should either accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined by the tax authorities, we are of the view that this issue requires fresh examination at the end of the assessing officer. Accordingly, we set aside the order of the Ld CIT(A) on this issue and restore the same to the file of the assessing officer for fresh examination. The assessing officer, while examining this issue, should also keep in mind about the difficulties that may be faced by the assessee in furnishing the details in view of lapse of about 11 years. 17. The next common issue that arises in AY 2006-07 to 2010-11 relates to the estimation of commission income on providing accommodation bills. We earlier noticed that the assessee had declared the commission income @ 0.20% in the statement taken from him. However, in the letter filed before the assessing officer, the commission income was declared @ 0.25%. However, the assessing officer has estimated the commission income by adopting the rate of 1.50%. A perusal of the assessment orders would show that the assessing officer has not brought on record any material or basis which enabled him to adopt the rate of 1.50%. The AO has also not examined the beneficiaries of the accommodation bills to ascertain the rate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced that the assessee has offered a sum of Rs. 78,47,730/- as his income in AY 2010-11. In view of the same, the assessee has contended before the assessing officer that the commission income should also be assessed in that year only. The assessing officer has rejected the said claim on the reasoning that the assessee would have received the commission income every year. We find merit in the reasoning given by the assessing officer. Accordingly, we are of the view that he is justified in holding that the commission income is assessable every year. However, since the said income has culminated into jewellery investment, we are of the view that the cumulative commission income finally assessed from AY 2006-07 to 2010-11 after giving effect to our order, should be given deduction against the income offered towards investment made in Jewellery. We find support for our view on the following reasons:- (a) Investment made in jewellery can be assessed only to the extent of unexplained amount. Since the commission income forms a source for the amount invested in jewellery, the sources to the extent of aggregate commission income stands explained. Hence the balance amount of investment alon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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