9911796707
TMI Blog2019 (4) TMI 1749X X X X Extracts X X X X X X X X Extracts X X X X ..... o.1565, 1566, 1567, 1568, 1569, 2436, 2437, 2438, 2439, 2440/Del./2017, ITA No. 484, 6516/Del./2015, ITA No. 6710/Del./2016 - - - Dated:- 26-4-2019 - SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER For the ASSESSEE : Shri V.P. Gupta, Advocate, Shri Anunav Kumar, Advocate For the REVENUE : Ms. Nidhi Srivastava, CIT DR ORDER PER BENCH : Present cross appeals filed by the assessee as well as by the revenue are being disposed off by way of composite order to avoid repetition of discussion. 2. The Appellant, M/s. Dwarka Impex Pvt. Ltd. (hereinafter referred to as the assessee ) by filing the present appeals sought to set aside the impugned orders all dated 20.02.2017 passed by the Commissioner of Income-tax (Appeals)-3, New Delhi, qua the assessment years 2004-05, 2005-06, 2006-07, 2007-08 2008-09 on the identical grounds inter alia that :- 1. That the CIT(A) erred in passing the order upholding the addition on account of commission to the extent of 2% without examining the facts of the case and the contentions of the appellant company. 2. That the CIT(A) erred in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The Appellant, M/s. Bhavani Portfolio Pvt. Ltd. (hereinafter referred to as the assessee ) by filing the present appeals sought to set aside the impugned order dated 13.10.2014 passed by the Commissioner of Income-tax (Appeals), Noida, qua the assessment year 2009-10 on the grounds inter alia that :- 1. That the CIT(A) erred in upholding the addition made by Assessing Officer of ₹ 2,27,79,793/- on account of commission income calculated @ 2.25% on total of all credit entries in the bank account, without correctly appreciating the facts of the case and also without properly appreciating and following the order and direction of Hon'ble ITAT vide its order dated 18.10.2013. 2. That the CIT(A) failed to appreciate that the appellant company is part of Tarun Goyal Group and, therefore, all intergroup entries in the bank account ought to have been excluded as per the direction of Hon'ble ITAT. Further, all the entries which had been explained by the appellant should also have been excluded and only in respect of balance entries, commission income could be considered. 3. That the CIT(A) also erred in upholding the commission income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in regard to rate of commission nor details were corroborated with other material and in any case the rates mentioned therein for a small amount could not be applied in all the cases of the Group for determining the rate of commission on total amount of accommodation entries and the notings under reference were also not relevant to all the assessment years. 6. The Appellant, M/s. Geefcee Finance Ltd. (hereinafter referred to as the assessee ) by filing the present appeals sought to set aside the impugned order dated 15.12.2016 passed by the Commissioner of Income-tax (Appeals), Noida qua the assessment year 2005-06 on the grounds inter alia that :- 1. That the CIT(A) erred in upholding the addition made by Assessing Officer on account of commission income calculated @ 2.25% on total of all credit entries in the bank account, without correctly appreciating the facts of the case and also without properly appreciating and following the order and direction of Hon'ble ITAT vide its order dated 18.10.2013. 2. That the CIT(A) failed to appreciate that the appellant company is part of Tarun Goyal Group and, therefore, all intergroup entries in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h adjudication in accordance with law. 9. AO issued notice under section 143(2) and 142(1) calling upon the assessee to furnish details as under :- (i) Furnish the copy of ITR, balance sheet, tax audit report, computation of income, all annexures and notes of accounts; (ii) Furnish the copy of all statements of Tarun Goyal recorded on oath during the course of search and seizure operation as well as post operation period, if any. (iii) The Hon ble ITAT has set aside the issue to A.O. to examine the chain of transactions, they layering indulged by assessee, the calculation of peak unexplained credit etc. and to prove each credit in the books of each assessee. In this respect burden of proof lies on you to prove each and every credited and debited entry from its origin. Hence, you are requested to submit details of transactions/chain of entries (each and every credit and debit) of different parties from its origin. 11. From the detail furnished by the assessee vide reply dated 13.02.2015, AO noticed that in the assessee s bank account, amount of ₹ 1,64,01,670/-, ₹ 93,51,252/-, ₹ 36,00,386/-, ₹ 3,01,56,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Perusal of original assessment orders qua AYs 2004-05 to 2008-09, available at pages 38 to 97 of the paper book, goes to prove that the only addition made by the AO is on account of commission income @ 2.25% on accommodation entries provided by the assessee company and no addition under section 68 of the Act is there. From the copy of Form No.36 filed before the Tribunal in all the appeals for AYs 2004-05 to 2008-09 in the first round of appeal available at pages 33 to 37, it is again proved that no ground as to the addition made under section 68 of the Act has been raised by the assessee. Similarly, appeals before the ld. CIT (A) as well as the Tribunal were qua issue of commission income only. So, it is proved on record that AO in the remand proceedings has made fresh investigation and proceeded to make the addition under section 68 of the Act. 17. It is settled principle of law that on remand of the proceedings by the Tribunal to the AO, no new source of income can be introduced so as to enhance the assessment by the AO and the AO can enhance the income only qua old sources of income which was subject matter of the appeal before the Tribunal. Reliance in this regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... identical issue in favour of the assessee by returning following findings :- Thus, this Court in the above quoted decision has held that the set aside of assessment made by the appellate authority is always in accordance with the directions given by the appellate authority for making a fresh assessment. But, the most material part of the provision is the opening portion which stipulates In an appeal against an order of assessment . In other words, the entire gamut of powers which are available to the appellate authority is governed within the four corners of the subject-matter of appeal. The subject-matter of appeal is the assessment of income which forms part of the order of assessment in light of the return of income filed by an assessee. Examining the facts of the present case in the light of the aforesaid decision, it is apparent that the AO was required to make a fresh assessment in accordance with the directions given by the CIT(A) and could not have travelled beyond the same. The impugned order of the Tribunal is, therefore, in consonance with the aforesaid decision of this High Court and does not warrant any interference. 20. Coordinate Bench of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0% or 0.50 paise and compute the profit accordingly. 23. Following the decision rendered by the coordinate Bench of the Tribunal, AO is directed to adopt the decision of Group cases of Tarun Goyal (supra) and computed the profit accordingly in these cases also. 24. So far as appeals bearing ITA Nos.484/Del./2015, 6516/Del./2015 6710/Del./2016 filed by the assessees are concerned, one of the issue is as to upholding the commission income @ 2.25% in case of Bhawani Portfolio Pvt. Ltd. and Geefcee Finance Ltd. and @ 2% in case of Tejasvi Investments (P) Ltd. by the ld. CIT (A). This issue is also decided in favour of the assessee by following the decision rendered by Tribunal vide order dated 23.01.2019 (supra) and the AO is directed to adopt the decision of Group cases of Tarun Goyal (supra) and computed the profit accordingly in these cases also. 25. Second issue in case of Bhawani Portfolio Pvt. Ltd. and Geefcee Finance Ltd., which are of Noida charge, is as to whether determination of commission income with reference to the entries given outside the group. It is the case of the assessee that the AO has calculated the commission income @ 2.25% on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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