9911796707
TMI Blog2016 (11) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act for concealment of income or for furnishing incorrect particulars of income. - Decided in favour of assessee - ITA No 2639/MUM/2015, ITA No 2638/MUM/2015 - - - Dated:- 30-9-2016 - SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI (JM) For The Appellant : Shri. Vimal Punamiya For The Respondent : Captain Pradeep Arya ORDER PER RAM LAL NEGI, JM These appeals have been preferred by the assessees against two orders dated 22/01/2015 passed by the Ld. CIT(Appeals)-39, Mumbai for the Asst. Year 2002-03 and 2008-09 respectively. Since both the assessees are the members of same family and the issues involved in both the appeals are common, the same were clubbed and heard together and are being disposed of by this co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 271(1)(c) without appreciating that the assessment proceedings and penalty proceedings are distinct and separate. (b) The learned Commissioner of Income Tax (Appeals) erred in facts and law in not appreciating that the penalty u/s 271(1)(c) cannot be levied on the additions made solely on the basis of estimation and without bringing on record any tangible material to show that the appellant had infact earned a higher rate of commission over and above 1% on sale bills. 3. Before us the Ld. Authorised Representative (AR) submitted that in the present case the A.O levied penalty on the addition of 6% of sales but in some years the addition was made at @ 4% of sales and 3% of purchases. However, in appeal the Tribunal, vide order da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon, in the light of the respective contentions of the parties. We notice that in quantum appeal ITA Nos. 5011 and 5018/Mum/2014 sought assessment years 2002 03 to 2009 10, the coordinate bench vide order dated 14/09/2016, following the decision rendered in the case of Sanjay Kumar Garg versus ACIT (2011) 12 taxmann.com 294 (Delhi) and the decision rendered by the coordinate bench in the case of gold star Finvest (P) Ltd versus ITO (2013) 33 taxmann.com 129 (Mumbai tribunal) held that addition of 0.6%. of turnover is reasonable. The relevant portion of the order reads as under:- 6.1 We find that Tribunal in case of Sanjay Kumar versus Garg vs. ACIT (supra) held that rate of commission cannot be more than 1%, but in present case, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. The theory of the Assessing Officer to treat the entire deposit as unexplained cash credits, cannot be accepted in the light of assessment orders in the case of beneficiaries and also in the light of the fact that assessee is only concerned with the commission earned on providing accommodation entries. We, therefore, of the view that since the assessee itself has declared the commission on turnover at 0.15% which is more than the percentage considered to be reasonable by the Tribunal in the case of Palresha Co. (supra) and Kiran Co. (supra), the same should be accepted. We, accordingly, accept the commission declared by the assessee and set aside the order of the CIT (A) in this regard. 6.2 we find that ITAT in case of Sanjay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(Jodhpur-Trib.) and other Benches of ITAT. So, in view of the decisions of the Hon ble High Courts and Tribunals, we are of the considered opinion that this is not a fit case where penalty can be imposed under section 271(1)(c) of the Act for concealment of income or for furnishing incorrect particulars of income. We, therefore, set aside the impugned order and allow the grounds of appeal of the assessee. ITA No. 2638/Mum/2015 A.Y. 2008-09 The assessee has challenged the impugned order passed by the Ld. CIT(A) on the following effective ground of appeal:- 1(a) The learned Commissioner of Income Tax (Appeals) [CIT (A)] erred in facts and law in confirming the action of the Assessing Officer and sustaining the penalty of ₹ 12,9 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
