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TMI Blog2016 (4) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... r Asst year 2007-08, the assessee filed her return of income on 20/02/2008 declaring income of ₹ 2,19,324/-. The case was taken up for scrutiny and the assessment was completed u/s 143(3) of the Act wherein the assessee s income was determined at ₹ 42,66,010/- in view of the following additions/disallowances to the returned income :- (i) Cash Component of brokerage ₹ 4,80,000/- (ii) Undisclosed investment in diamond jewellery ₹ 9,37,010/- (iii) Undisclosed investment in gold jewellery ₹ 3,67,878/- (iv) Transaction with M/s. Vinita Estates ₹ 12,34,640/- (v) Excess Bank credits ₹ 9,37,788/- Penalty proceedings u/s 271(1)(c) were also initiated for filing inaccurate particulars of income. 2.2 On appeal, the Ld. CIT(A) allowed the assessee partial relief whereby the additions were restricted to ₹ 17,14,640/-. 2.3 In the course of penalty proceedings befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 12,34,640/- in respect of undisclosed transactions with M/s. Vinita Estates was the basis for levy of penalty of ₹ 5,56,765/- u/s. 271(1)(c) of the Act vide order dt. 29/03/2012. It was submitted that in the assessee s quantum appeal before the co-ordinate bench of ITAT Mumbai, the bench in its order in ITA No. 7770 8130/Mum/2010 dt. 06/01/2016 has considered both these issues and deleted the said additions. The Ld. AR contends that since the aforesaid additions totaling ₹ 17,14,640/-, made by the Assessing Officer and confirmed by the Ld. CIT(A) which formed the basis for levy of penalty u/s 271 (1) (c) having been deleted by the co-ordinate bench in the aforesaid order, the penalty of ₹ 5,56,765/- levied in this regard would not non survive and its therefore to be cancelled. 3.3.1 We have heard both the Ld. AR for the assessee and the Ld. DR for revenue in the matter and perused and carefully considered the material on record in the matter of the penalty of ₹ 5,56,765/- levied u/s 271(1)(c) of the Act for Asst. year 2007-08. As submitted by the Ld. AR for the assessee, we find that the co-ordinate bench of this Tribunal in its order in ITA Nos . 77 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to assessment year 2003-04, who is one of the members of this group. The Tribunal has taken the view that there is no evidence on record to show that the assessee has received brokerage income by way of cash. The said decision was followed by the co-ordinate division bench of Tribunal in the case of Karan P Batra (ITA No.1116/Mum/2011 AY 2007-08); Shri Chaturbhuj T Batra (ITA Nos. 7038 to 7043/Mum/2010 AY 2001-02 to 2006-07) and Shri Premkumar T Batra (ITA Nos. 8058 to 8063/Mum/2010 AY 2001-02 to 2006-07). The relevant observations made by the co-ordinate bench in the common order dated 25.04.2014 passed in the above cited group cases are extracted below:- 4. At the outset, it has been brought to our notice that the cases in hand are squarely covered by the decision of the Tribunal in the case of Shri Rajeev C. Batra in ITA No.7772/Mum/2010 for the assessment year 2003-04, wherein similar addition made/confirmed by the AO/CIT(A) on the basis of the same seized document has been deleted by the Tribunal and the findings of the Tribunal in para 6 of the said order is extracted hereunder:- I have considered the rival submissions mad by both the sides, perus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee being brokerage and since the assessee being brokerage and since the assessee has not challenged the same, therefore, confirming the addition of ₹ 1 lakh made by the Assessing Officer on estimate basis and telescoping the same in my opinion is not justified. I therefore, set aside the order of the Ld. CIT(A) on this issue, The ground raised by the assessee is accordingly allowed. 4.1 After considering the fact that similar additions of estimated brokerage made on the basis of the same document seized, has been deleted by the Tribunal, we are of the considered opinion that the impugned additions confirmed by the Ld.CIT(A), on estimate basis and telescoping the same is not justified in the cases of Shri Rajeev C. Batra and Shri Karan P. Batra. Therefore, we set aside the impugned orders of the Ld.CIT(A) in the said cases and the additions made/confirmed on this count stand deleted. 6. In the instant year also, the assessing officer has made the impugned addition on the basis of very same documents. Accordingly, consistent with the view taken by the co-ordinate bench of the Tribunal, we hold that the assessing officer has made the impugned addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oices has been suppressed by the assessees and accordingly assessed the same. 10. In the appellate proceedings, the Ld CIT(A) confirmed the addition mainly on the reasoning that the assessees have suppressed the brokerage income received by way of cash. 11. We heard the parties on this issue and carefully perused the record. The admitted fact is that both the assessees as well as M/s Vinita Estates (P) Ltd, in whose name the proforma invoices have been prepared, have denied the transactions. Except the invoices, no other material was found during the course of search to demonstrate that the services stated in the invoices were actually rendered by the assessees. During the course of assessment proceedings also, the assessing officer has failed to bring any material on record to show that the services mentioned in the invoices have been actually rendered or the money has actually passed the hands. At the time of hearing, the Ld A.R submitted that the relevant invoices are undated, unsigned and did not bear the acknowledgement of M/s Vinita Estates (P) Ltd. He further submitted that the director of the above said company as well as the accountant of the above said company has d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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