9911796707
TMI Blog2021 (2) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... e society with any of the office bearer and thirdly as regard to quantum of addition to be confirmed in the hands of the assessee society the same should be higher of the two amounts namely service charge @₹ 100 per lakh (0.1%) of the alleged cash deposited in the bank account or the yearwise peak balance of all the bank accounts of the society . This exercise should be carried out at the end of the Ld. A.O in order to make necessary addition in the hands of th society. In the result common issue raised by the revenue in the case of the assessee society through partly allowed. Unexplained investment u/s 69 - cash deposit in the bank account of the society of which the assessee is holding the post as President - HELD THAT:- As already dealt with this issue and have held that firstly the addition if any to be made for the alleged cash deposits in the bank account of the society are to be made only in the hands of the society and not in the hands of the office bearer namely Shri Manish Kothari since the society is a seperately legal entity having its Permanent Account Number and working under the registered bye laws since last many years. Secondly we have held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t his share of income is hardly 0.67% to 1% as there are three brokers namely one to represents the seller, second who represents the buyer and third the appellant who on behalf of the broker and buyer communicates with the broker of the seller. Though there seems merits in the contention of the Sr. Counsel for the assessee but since we have already set aside the similar issue raised in Ground No.4 for Assessment Year 2008- 09 we deemed it proper to set aside this common issue of computation of brokerage/ commission also to Ld. CIT(A) to decide about the final rate of brokerage to be applied which can range anywhere between 0.67% to 3%. - ITA Nos.286 to 289/Ind/2018, ITA No. 719 to 722/Ind/2017 & 862 to 865/Ind/2018 - - - Dated:- 11-2-2021 - Hon'ble Kul Bharat, Judicial Member And Hon'ble Manish Borad, Accountant Member For the Appellant : S/Shri Anil Kumar Goyal, AR for assessee Sumit Nema Sr. Adv, Gagan Tiwary, Adv as intervener. For the Revenue : Shri S.S. Mantri, CIT ORDER PER MANISH BORAD, AM. Through ITA No.286 to 289/Ind/2018 Revenue is in appeal for Assessment Years 2008-09 to 2011-12 against the order of Commissioner of Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cheques being issued. It was submitted that the assessee society give facility to its members/other person by way of providing cheques/Demand Drafts to be issued to various parties on the direction of their members against the cash received from them. For providing such services ₹ 100 per lakh is charged as a commission and in case the amount is less than ₹ 20,000/-, then minimum ₹ 20/- is charged. It was also noticed that for various years details were maintained in computer on excel sheet about the cash received from the members of the society and cheques issued to various suppliers. Statement of the Presdent Mr. Manish Kothari was also taken during the survey proceedings. It was observed by the survey team that Shri Manish Kothari is the person who is incharge of all these transactions of cash deposits and cheque issued and other office bearers of society work under his directions. Information about the source of cash was asked to which the reply was furnished. This observation of the survey team was reason to believe for the revenue authorities to assess/reassess the escaped income for various Assessment Year 2008-09 to 2015-16. 6. Accordingly notice u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CIT(A) was justified in deleting the addition of ₹ 9,23,93,288/-, ₹ 13,90,35,137/-, ₹ 17,69,03,922/- and ₹ 26,21,59,360/- for Assessment Years 2008-09 to 2011-12 respectively on account of unexplained investment u/s 69 of the Income Tax Act. (ii) The appellant craves leave to add, amend, alter, modify, delete and or withdraw any/all of the above grounds of appeal on or before the final date of hearing 9. Ld. Departmental Representative vehemently argued and supported the order of Ld. A.O for the Assessment Years in appeal before us but could not sreply to the question that why the revenue has not challenged the order of Ld. CIT(A) deleting the addition made u/s 69 of the Act for remaining Assessment Years 2012-13 to 2015- 16. Ld. DR also could not controvert the fact that in some of the assessments framed by Ld. A.O in the case of Manish Kothari additions were made by estimating the brokerage income computed @0.1% (₹ 100 per lakh) for the transaction of cash deposited and cheques issued on behalf of the members of the society/other persons who admitted to have taken the service of the society by way of giving cash and getting cheques issues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... society unearthed by the revenue authorities during survey or post survey which thus makes the impugned addition of total cash deposit in bank account completely illogical. Reliance placed on the following decisions:- (i) CIT V/s Smt. P.K. Noorjahan (1999) 237 ITR 570/103 Taxman 382 (Apex Court). (ii) S. Venkat Reddy V/s ITO (2016) 76 Taxmann.com 128 (I.T.A.T. Hyderabad) (iii) Amit Agrawal V/s DCIT (Kolkata I.T.A.T. ITA No.337/Ko/2014 order dated 09.09.2016 (iv) Binod Kumar Jha V/s ITO (Kolkata I.T.A.T. ITA No.577/Ko/2013 order dated 20.11.2015 (v) CIT V/s Tirupati Construction Co (2015) 55 Taxmann.com 308 (Gujarat High Court) 11. We have heard rival contentions and perused the records placed before us and carefully gone through the decisions referred by the Sr. Counsel for the assessee. The revenue has challenged the finding of Ld. CIT(A) deleting the protective addition made in the hands of the assessee society at Rs. ₹ 9,23,93,288/-, ₹ 13,90,35,137/-, ₹ 17,69,03,922/- and ₹ 26,21,59,360/- for Assessment Years 2008-09 to 2011-12 respectively which was made by the Ld. A.O on account of unexplained investment u/s 69 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Act defines a co-operative society as A society registered under the Co-operative Societies Act, 1912, or under any other law for the time being in force in any state for the registration of Co-operative societies . 14. That the provision of Madhya Pradesh Swayatta Sahakarita Adhiniyam, 1999 provides the process of registration, its incorporation, byelaws, eligibility of its member, admission of member and other provision which are necessary for establishment of a Co-operative Society under Adhiniyam, 1999 and that the Adhiniyam, 1999 also provides the President and Vice President of Co-operative Society and function, responsibility and power of board. 15. At this juncture it is relevant to reproduce the relevant provisions of Madhya Pradesh Swayatta Sahakarita Adhiniyam, 1999 ; Section 29. Liability of member A co-operative may be registered with limited or unlimited liability: Provided tdhat unless and State Government, by a general or special order otherwise directs, the liability of a co-operative of which another co-operative is a member shall be limited. Explanation: For the purpose of this Sub-Section:- (a) cooperative with limited liabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f order for dissolution, shall continue until completion of the entire liquidation proceedings, but such liability shall be limited only to the debts of the co-operative as they stood on the date of cessation of his membership or his death, as the case may be. 30. General body. (1) There shall be a general body for every cooperative consisting of all the members of such co-operative. (2) Where the general body of a co-operative decides that the size, spread or types of its membership requires a representative body of delegates for more effective decision making, its bye-laws shall provide for a smaller body called delegate general body elected from the members in the annual general meeting in accordance with the bye-laws to exercise such powers and to discharge such duties of the general body as may be specified in the bye-laws. (3) Unless the context otherwise requires, any reference in this Act to the general body shall apply to the delegate general body where it exists. (4) Subject to the provisions of this Act and the bye-laws, the ultimate power of a co-operative shall vest in the general body. (5) Any power, function or responsibility, falling within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or which are specifically assigned to the general body under any other provision of this Act, may be dealt with by the general body at its annual or general meeting, namely:- (a) amendments of bye-laws; (b) removal of directors; (c) membership of the co-operative in [ principal co-operative]:- (d) partnership with other co-operatives; (e) amalgamation, division, merger, transfer of assets and liabilities; (f) dissolution of the co-operative; (g) consideration of the Registrar's report of inquiry or reasons for the non-completion of the inquiry. (3) If the bye-laws of a co-operative provide for election of all or more directors on territorial basis, such director shall be elected from the areas, in a meeting of the members of that area in accordance with the provisions of the bye-laws on a date prior to that of annual general meeting. The result thereof shall be affixed on the notice board of the head office of the cooperative and also at the place of the annual general meeting prior to the commencement of the proceedings of the annual general meeting. 34. President and Vice-President of co-operative. (1) There shall be a Presid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilities anti powers of board. Board shall discharge such functions, perform such duties and responsibilities and exercise such powers as may be specified in the bye-laws and in accordance with the terms, conditions and procedure laid down therein and in particular the board shall have the following powers, functions and duties namely:- a) to interpret the organisational objectives, to set up specific goals to be achieved towards such objectives, and to make periodic appraisal of operations; b) to nominate, elect or appoint and remove the Chief Executive; c) to make provisions for the matters mentioned in Section 44 in respect of the staff of a co-operative; d) to finalise long-term perspective plan, annual plan and budget, and to direct the affairs of the co-operative in accordance with the plan and budget approved by the general body; e) to arrange for funds; f) to authorise acquisition and disposal of immovable property; g) to frame, approve and amend regulations relating to services, funds, accounts and accountability, and information and reporting systems; h) to elect President, Vice-President and representative in accordance with the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e hidden income in the alleged transactions if to be taxed should be taxed in the hands of assessee society only. 18. Hon'ble Apex Court in the case of ITO V/s Ch. Atchaiah (1996) 218 ITR 239/84 Taxman 630 held that :- Under the 1961 Act, the Assessing Officer has no option like the one he had under the 1922 Act. He can, and he must, tax the right person and the right person alone. By 'right person' is meant the person who is liable to be taxed, according to law, with respect to a particular income. The expression 'wrong person' is obviously used as the opposite of the expression 'right person'. Merely because a wrong person is taxed with respect to a particular income, the Assessing Officer is not precluded from taxing the right person with respect to that income. This is so irrespective of the fact as to which course is more beneficial to the revenue. The language of the relevant provisions of the 1961 Act is quite clear and unambiguous. Section 183 shows that where the Parliament intended to provide an option, it provided so expressly. Where a person is taxed wrongfully, he is no doubt, entitled to be relieved of it in accordance with law, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he himself cannot be taxed with respect to the said total income. This is not only logical but is consistent with the provisions of the Act. Where the Parliament wanted to provide an option, a discretion, to the ITO, it has provided so expressly. Section 183 provides that in the case of an unregistered firm, it is open to the ITO to treat it, and make an assessment on it, as if it were a registered firm, if such a course was more beneficial to the revenue - in the sense that such a course would fetch more tax to the public exchequer. Section 183 corresponds to section 23(5)(b ) of the 1922 Act. The 1922 Act not only provided an option to the Assessing Officer in the matter of a firm and an AOP under section 3 but also expressly enabled him to assess an unregistered firm as a registered firm, if, by doing so, more tax accrued to the State. The 1961 Act has omitted the first option, while retaining the second. 19. Hon'ble Apex Court referred to above stated judgment subsequently in the case of Maneklal Agrawal V DCIT (2017) 84 Taxmann.com 116(SC) held that :- Going by the nature of transaction, a clear finding of fact is arrived at by the authorities below that a devise w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to charge service charge @₹ 100/- per Lakh. Even this fact that the society is charging commission ₹ 100 per lakh has been confirmed by various businessman in their statements recorded during the course of survey and also during the post survey proceedings and the details were appearing in the computerized Excel sheet prepared for some of the assessment years. It was confirmed by some of the traders/persons that they have deposited cash in the bank account of the society and against which cheque/Demand Draft were issued by the Societies bank on their request. In the written submissions also screen shots of sample of cash receipt, voucher in the name of the society showing cash received from the persons/members/traders and the screen shots of cheque issued to various business concerns are placed on record. These business concern includes Private Limited Companies also. Our this finding is further corroborated by the fact that during the assessment proceedings for Assessment Years 2012-13 to 2015-16 carried out in the case of another assessee who is also in appeal before us i.e. Shri Manish Kothari and in whose hand substantive addition has been confirmed by Ld. CIT(A), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Ld. A.O on the very same set of transaction of cash deposit in bank accounts coupled with the fact that the list of persons mentioned by Ld. A.O in various assessment years also carried details of their Permanent Account Number asserts the fact that the assessee society was undulged in providing services for issue of cheques against cash deposits used to charge commission @0.1% of the transaction value. 25. Apart from this modus operandi of assessee society of having its source of income from service charge for providing cheque/drafts in lieu of cash received from the parties, no other source of income has been unearthed by the survey team nor by the Ld.A.O during the course of assessment proceedings. The impugned huge additions seems to be illogical and merely on surmises and conjectures with no supporting evidence. No efforts were made to know about where the encashed cheques were issued. Information were available with the bank authorities. In some cases cheques are issued to private limited companies. One can easily ascertain the relevant information by making enquiry so as to find out the purpose of such transfers, actual transaction happened and whether assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters with wisdom, truly and legally and it should not depend on the arbitrary caprice of an officer. In other words, though an element of guess work is involved in best judgement it should not be a wild one, as held by the Hon'ble Supreme Court in the case of State of Kerala v. Velukutti [1966] 60 ITR 239. In the instant case, the Assessing Officer ought to have taken into consideration the normal turnover of the assessee, the expected profit in each year, based on the earlier year's income declared and accepted in order to estimate the income of the current year; while holding that there was some undisclosed income assessable to tax under section 68 of the Act. The assessee having furnished the bank statement Assessing Officer could have verified and noticed that there were credits and corresponding debits which would give an indication that some amount has been recycled and it is a settled principle that in such cases ordinarily, peak credit is taken into consideration for the purpose of making an addition. On a conspectus of the matter, we are of the view that an addition of peak credit would meet the ends of justice. We, therefore, direct the Assessing Officer according ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 In view of the above statement the assessee claimed that he is engaged in the business of providing accommodation entries to various parties on commission basis and this commission has all along been disclosed by him as business income in the returns of income particularly for AYs 2008-09, 2009-10 and 2010-11. Now before us assessee's counsel argued that even peak credit cannot be added in the hands of the assessee only finance commission earned by him @ 0.25% to 0.50% at the best can be assessed. Ld. Counsel for the assessee drew our attention to paper book filed by assessee and particularly pages 1 to 41, wherein extract from bank statement of six undisclosed bank accounts of Axis Bank and calculation showing peak credit after consolidation is enclosed. There is no dispute about the cash deposited in these six bank accounts maintained with Axis Bank Ltd. We find from the above statement recorded by the AO of the assessee particularly Question nos. 14 and 15 that assessee is only a conduit in a big syndicate of accommodation entry providers and he has earned only commission income for providing accommodation entry. The assessee used to receive cash and deposit the same in o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction could not be proved by the assessee by mentioning the names, addresses, PAN, confirmation of the parties to whom the payments were made and from payments were received by the assessee. Hence it is proved that transactions contained in the bank account are not genuine. Once the transactions in the bank account are proved ingenuine then it is an accepted practice of adopting the peak credit theory for the purpose of determination of undisclosed income of the assessee. Hence, reliance placed by the ld. DR in the decision of the Hon'ble Allahabad High Court reported in 276 ITR 38 which rejected the concept of peak credit theory is not applicable to the facts of the instant case. In the case before the Hon'ble Allahabad High Court, the assessee claimed that the credits in the bank account represented genuine loans borrowed and the character of the loan transactions were not disputed and hence their lordships of Allahabad High Court held that the peak credit theory would not be applicable in that case. But in the facts of the instant case, the assessee had clearly owned up the transactions and that he is engaging himself in accommodation entry business with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion has been conferred on the Income tax Officer u/s 69 of the Act to treat the source of investment as the income of the assessee if the explanation offered by the assessee is not found satisfactory and the said discretion has to be exercised keeping in view the facts and circumstances of the particular case. The Income Tax Officer is not obliged to treat the value of investment as income in every case where the explanation offered by the assessee is found to be unsatisfactory. 12. Hence it would be unreasonable to tax all the deposits in the bank account of the assessee. To this extent, we do not appreciate the action of the ld. AO in taxing the entire credits of ₹ 6,30,89,413/- as undisclosed income of the assessee for A.Y.2006-07. To put this ongoing dispute to rest, in the interest of justice and fair play, we direct the ld. AO to assess the peak credit in this case in respect of both cash as well as cheque transaction contained in the said bank account by verifying the veracity of the figures worked out by the assesse and bring to tax the same. We draw support from the decision rendered by 'C' Bench of Kolkata ITAT in ITA No.2069/Kol/2010 for A.Y.2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mediately it was transferred to the account of the party leaving negligent amount of balance in the bank account of assessee. In our considered view, we conclude that assessee is engaged in providing accommodated entries to the parties. Had there been the business of the iron and steel of the assessee then the lower authorities should have brought on record the evidence of the business but the ld. DR failed to bring the same. We also find that the cash was immediately withdrawn after the deposit of the cash. This transaction shows that the money does not belong to the assessee. In the absence of any information about the iron steel business of the assessee, we are accordingly inclined to apply the peak credit theory to tax the undisclosed income of assessee. We reverse the order of Authorities Below. AO is directed accordingly. This ground of assessee is allowed in terms of above. (iii) Hon'ble Kolkata Tribunal in the case of Shri Binod Kumar Jha v. Income Tax officer, WD-25 (2), Kolkata (ITA No. 577/Kol/2013) vide order dated 20/11/2015 hon ble Tribunal held that : In view of the above statement the assessee claimed that he is engaged in the business of providing acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to assess the peak credit being a sum of ₹ 1,01,40,000/- as computed by assessee on the basis of deposits made in these six bank accounts with Axis Bank Ltd. in lieu of cash deposits added by the AO at ₹ 83,48,16,130/-. Accordingly, the AO will verify the peak and will make addition of the peak amount only. Accordingly, this issue of assessee s appeal is partly allowed for statistical purposes. (iv) Hon'ble Gujarat High Court In the case of Commissioner of Income-tax- III v. Tirupati Construction Co [2015] 55 taxmann.com 308 (Gujarat) Hon ble High Court held that : 7. At the outset, it is required to be noted that, while appreciating a document, it is required to be considered in its entirety and it cannot be considered in part. In the case on hand, while appreciating the papers / documents, which according to the Assessing Officer, contained accounted and unaccounted transactions on the part of the Respondent-assessee, she not only failed to examine it properly but also failed in assessing the income as per law. Further, though, the AO, herself, had prepared the account of profit and loss in respect of accounted and unaccounted entries, she did not assign a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. We therefore in the given facts and circumstances of the case and in view of the decision referred herein above which are squarely applicable in the case of the assessee are of the considered view that firstly the action of Ld. CIT(A) deleting the protective addition made in the hands of the society was not justified since the transactions of cash deposits and cheque issuance were carried out through banking account of the registered co-operative society running for last many years ignoring the fact that the society is a separate legal entity having its Permanent Account Number, secondly Ld. CIT(A) erred in confirming the substantive addition in the hands of the President of the society Mr. Manish Kothari who was merely an office bearer appointed by the Board Members of the society providing honourable services and there is no iota of evidence to show the nexus of the alleged transaction carried out through bank account held in the name of the society with any of the office bearer and thirdly as regard to quantum of addition to be confirmed in the hands of the assessee society the same should be higher of the two amounts namely service charge @₹ 100 per lakh (0.1%) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years 2008-09 to 2015- 16, at the outset Ld. Sr. Counsel for the assesee requested for not pressing this legal ground. Since the legal ground challenging the reopening of the assessment and the legality of issuance of notice u/s 148 of the Act is not pressed the same is dismissed as not pressed. 31. Now we take up second common issue for the substantive addition confirmed in the hands of the assessee for the unexplained investment u/s 69 of the Act made for the alleged cash deposit in the bank account of the society namely Shree Vardhman Sakh Skarita Maryadit of which the assessee is holding the post as President. We observe that the impugned additions of ₹ 9,23,93,228/-, ₹ 13,90,35,137/-, ₹ 17,69,03,922/-, ₹ 26,21,59,360/-, ₹ 37,02,21,964/- (₹ 34,05,94,493 ₹ 2,53,43,026/)-, ₹ 52,39,28,273/- (₹ 36,54,12,434/- ₹ 15,85,15,839/-), ₹ 74,49,35,922/- (₹ 65,07,34,968/- ₹ 9,42,00,954/-) and ₹ 49,31,33,630/- (₹ 35,16,71,541/- ₹ 14,14,62,089/-) for Assessment Years 2008-09 to 2015-16 respectively was made by the Ld. A.O to the income of the assessee on account of cash deposited in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard to the alleged cash deposit in the bank account held in the name of society shall have no bearing on the additions made by the Ld. A.O but which have not been agitated or challenged by the assessee before Ld. CIT(A) or before us. We accordingly order so and allow this common ground of appeal raised by the assessee for Assessment Years 2008-09 to 2015-16. 34. Now we take up the next common issue which relates to the addition made on the basis of loose paper found during the course of survey at the assessee s premises which was carried out on 29.9.2014. Brief facts relating to this common issue are that there was a survey conducted at the office premises of the society Shree Vardhman Sakh Skarita Maryadit u/s 133A of the Act on 29.9.014. On the very same day of survey u/s 133A of the Act was also conducted at the business premises of Shri Manish Kothari who was holding the post of President of the society Shree Vardhman Sakh Skarita Maryadit. Certain incriminating material was impounded in the form of small note book, BF-2, loose papers BF 5 8. The yearwise issues for the respective assessment years are summarised in the following manner; Assessment Years Issue Wise Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te and nothing has been held/ obsrved on merits. We therefore are of the considered view that except for the two issue firstly reopening of the assessment proceedings which are already not pressed by the assessee for Assessment Year 2008- 09 to Assessment Year 2015-16 and secondly the issue of addition of substantive basis for the unexplained investment u/s 69 of the Act for which we have already held that no addition is called for in the hands of assessee Shri Manish Kothari for Assessment Year 2008-09 to Assessment Year 2015-16 u/s 69 of the Act for the alleged cash deposits in the bank account of society namely Shri Vardhman Sakh Sahakarita Maryadit and the same thus deserves to be deleted. All the remaining issues raised by the assessee in the grounds of appeal for Assessment Year 2012-13 to 2015-16 are restored to Ld. CIT(A) for afresh adjudication after affording proper opportunity of being heard to the assessee and directions are also given to the assessee to not to take uncessary adjournments and should file necssary documents in support of its contention with regard to the impugned additions. In the result appeals of the assessee for Assessment Year 2012-13 to 2015-16 are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of purchase and sale of immoveable property carried out through buyers and sellers through the brokers and assessee is one of the three brokers involved in this transaction. The percentage of total brokerage is from2 to 3% and effectively the assessee s share is 0.67% to 1%. So the addition if any to be made in the effective Assessment Year should be for the brokerage of 0.67% to 1% on the transaction appearing in the seized document page 1 5 of BF-5. 38. As regards Ground No.3 for Assessment Year 2009-10 relating to addition of ₹ 5,00,000/-, Ground No.3.1 3.3 for Assessment Year 2010-11 for addition of ₹ 22,57,243/- and Ground No. 3.1 to 3.4 for Assessment Year 2011-12 for the amount of ₹ 13,21,000/-, it was submitted that the addition were made by the Ld. A.O applying brokerage and commission made on the basis of statement of the appellant taken during the course of survey. However the addition made by the Ld. A.O was by way of applying brokerage rate of 3% whereas actual brokerage received by the assessee ranging from 0.67% to 1%. The Ld. Sr. Counsel for the assessee referred to the following written submissions:- Addition OF ₹ 5,00,000/- o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age/commission is also distributed amongst the three brokers:- One broker represent the seller party One broker represent the buyer party The Appellant, who on behalf of the broker of the buyer negotiate with the broker of the seller. It is submitted that in the property line, the rate of brokerage was around 2% in general and the same was also distributed amongst the three brokers and therefore the percentage of share of the assessing so calculated comes to 0.667% not at 3% as adopted by the assessing officer in relevant assessment years . Hence, in the appeal in hand the amount of brokerage at the most can be calculated (0.667% of amount received in relevant assessment year). The assessing officer only on the basis of statement of the assessee added an amount of ₹ 5,00,000/- in A.Y 2008-08 to the income of the assessee and same was not justifiable more so when the property brokerage income of the assessee on the basis of actual cash realized and transfer through the assessee was to calculated @ 0.667% and the same was included in the regular income of the assessee after reducing the legitimate expenses as claimed by the assessee. That in view of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Issue Asst.Year Amount Ground Addition on account of Loose paper (BF-2) impounded during survey 2008-09 ₹ 4,68,00/- Ground No. 3 Addition on account of Loose paper (BF-5) impounded during survey 2008-09 ₹ 3,04,27,000/- Ground No.4 Addition on account of Loose paper (BF-8) impounded during survey 2008-09 19854/- Ground No, 5 Addition on account brokerage /Commission by making reliance on statement of Appellant taken during Survey (Dated 29/09/14) and entries on loose paper impounded during survey 2009-10 5,00,000/- Ground No. 3 Addition on account of brokerage /Commission @ 3 % by making reliance on statement of Appellant taken during Survey (Dated 29/09/14) and entries on loose paper impounded during survey 2010-11 2011-12 22,57,243/- 13,21,000/- 3.1 3.3 (2010-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g heard to the assessee to confirm the addition for the relevant assessment year to which the transaction pertains and also decide whether the addition should be made for the amount mentioned in the alleged document or the element of income i.e. brokerage as contended by Ld. Sr. Counsel for the assessee. Ground No.4 for Assessment Year 2008-09 is thus allowed for statastical purposes. 46. Now we are left with the common issue of addition on account of brokerage/commission for Assessment Years 2009-10 to 2011-12 for the amount of ₹ 5,00,000/-, ₹ 22,57,243/- and ₹ 13,21,000/-. We observe that the additions were made on the basis of statement given during the course of survey and Ld. A.O applied brokerage of 3% on the transaction appearing in the loose papers. Assessee has contended that his share of income is hardly 0.67% to 1% as there are three brokers namely one to represents the seller, second who represents the buyer and third the appellant who on behalf of the broker and buyer communicates with the broker of the seller. Though there seems merits in the contention of the Sr. Counsel for the assessee but since we have already set aside the similar issue raise ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
