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TMI Blog2019 (2) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... s controlled by Shri Ketan Parekh. Since the assessee company was one of such entities, the statement of its Director Shri Pramod Sharma was recorded under section 131 by the DDIT(Investigation), Kolkata on 15.12.2006. In the said statement given on oath, Shri Pramod Sharma accepted that he had got cash of equivalent amount from the Mumbai based Companies belonging to Shri Ketan Parekh Group and after depositing the said cash into the Bank account of the assessee-company, cheques were issued to the said Companies. He also furnished a list of cheques so issued against cash that had been received by him. Although Shri Pramod Sharma subsequently filed an affidavit retracting his statement, the Assessing Officer did not accept the same on the basis of the enquiries conducted by the Investigation Wing on a test-check basis, which revealed that cash was deposited in various Bank accounts in different stages. According to the Assessing Officer, this factual position substantiated the statement of Shri Pramod Sharma, Director of the assessee-company that cash was indeed received by the assessee-company in lieu of cheques given to various companies belonging to Ketan Parekh Group. He accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion entries given to the Mumbai based Companies in the form of commission income at the rate of 2% as well as further addition on account of protective basis for the following reasons given in paragraph no. 6 of his impugned order:- "6. I have perused the relevant orders and considered the material placed on record. I find from the appeal folder that in course of the appellate proceedings, my learned predecessor tried to ascertain about the cases where substantive additions were made corresponding to the protective addition in the present case; and also, about the fate of the appeals in those cases. The Ld CIT(A) called for the report vide his letter dated 23-07-2009 which was followed by reminders dated 17-08-2010, 13-07-2011, 30-102013 and 19-11-2013. However, though a substantial period of 4 & 1/2 years has elapsed, nothing has been heard in this regard from the AO. In this factual background; given the facts of the case and the findings of the AO in his assessment order;' and also, the decisions of the Hon'ble Benches of the jurisdictional ITAT in similar cases involving identical facts and circumstances, the present appeals now being decided on the basis of the mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in similar cases were deleted by my learned predecessor as well as by the Hon'ble Benches of the jurisdictional ITAT. In other words, similar additions based on the admission of the director of the company which was later retracted was deleted by the jurisdictional ITAT in the assessment of such company. In these cases, the director of the company made admission regarding providing accommodation entry in lieu of cash which was later retracted. Though the AO made similar additions on account of unexplained cash and commission income in the case of the company, the same was deleted by the Ld CIT(A) as well as by the jurisdictional ITAT. The issues in the present appeal are thus covered by the orders of the Hon'ble Benches of the .jurisdictional ITAT wherein similar additions, made under identical facts and circumstances, were deleted. Respectfully following the decisions of the jurisdictional ITAT, it is to be held that the additions made by the AO on account of unexplained cash and commission income is neither sustainable in law nor on facts. The additions of Rs. 41,87,38,000/- and Rs. 83,74,760/- is directed to be deleted. Ground no 2 & 3 are allowed". For almost identic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngwith the PAN of the buyers was produced before the AO in course of the remand proceedings and the remand reports contain no adverse findings in this regard. I therefore agree with the Ld AR that there is no adverse finding in the remand reports of the AO. The AO has categorically admitted that the bank statement, cash book and sales invoices were produced before him and that the cash deposits in the bank account were verifiable from the cash book. I am therefore of the considered view that such cash deposits in the bank account which were duly verifiable from the cash book of the assessee company could not be treated as its undisclosed income. The addition of Rs. 3,06,62,000/- is deleted. Ground no 4 is allowed. Ground no 5 is directed against the initiation of penalty proceedings u/s.271(1)(c) which is premature for adjudication at this stage. Hence, ground no 5 is dismissed. Ground no 6 is general in nature". For almost identical reasons as given in his impugned order for A.Y. 2005-06, the ld. CIT(Appeals) also held that the similar addition made by the Assessing Officer on account of unexplained cash deposits found to be made in the Bank accounts of the assessee for A.Y. 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the protective assessment can be inconformity with the substantive assessment. In the case of CIT -vs.- Surendra Gulab Chand Modi (140 ITR 517), the appeal arising out of the protective assessment was disposed of by the appellate authority i.e. Tribunal vacating the protective assessment without waiting for the final outcome of the proceedings arising from the substantive assessment, which matter was pending in the Hon'ble Supreme Court. The Hon'ble Gujarat High Court held that the Tribunal was not justified in proceeding with the matter and in disposing of it instead of blocking it till the disposal of the matter pending in the Hon'ble Supreme Court in order to bring it inconformity with the view of the Hon'ble Supreme Court. The Hon'ble Gujarat High Court accordingly directed the Tribunal to keep the matter alive and pending awaiting the decision of the Hon'ble Supreme Court in the proceedings arising from the substantive assessment. 6. In the present case, the ld. CIT(Appeals) did not await the outcome of the proceedings arising from the substantive assessment and since the said information was not forthcoming even after a considerable period from the concerned assessing office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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