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TMI Blog2022 (6) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Income Tax (Appeals)-47, Mumbai in appeal No.CIT(A)-47, Mumbai/10168/2019-20 dated 30/12/2021 (ld. CIT(A) in short) against the order of assessment passed u/s.143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 19/11/2019 by the ld. Asst. Commissioner of Income Tax, Central Circle-1(3), Mumbai (hereinafter referred to as ld. AO). ITA No.383/Mum/2022 (A.Y.2015-16) This appeal in ITA No.383/Mum/2022 for A.Y.2015-16 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-47, Mumbai in appeal No.CIT(A)-47, Mumbai/10144/2019-20 dated 30/12/2021 (ld. CIT(A) in short) against the order of assessment passed u/s.143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 27/11/2019 by the ld. Asst. Commissioner of Income Tax, Central Circle-1(3), Mumbai (hereinafter referred to as ld. AO). ITA No.305/Mum/2022 (A.Y.2015-16) This appeal in ITA No.305/Mum/2022 for A.Y.2015-16 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-47, Mumbai in appeal No.CIT(A)-47, Mumbai/10176/2019-20 dated 30/12/2021 (ld. CIT(A) in short) against the order of assessment passed u/s.143(3) r.w.s. 147 of the Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the facts and in the circumstances of the case and in law, the Ld. C1T(A) erred in changing protective addition of commission income on alleged bogus sales to substantive addition on the incorrect presumption that the same was not considered in the order of the Hon'ble ITAT in the case of Shri Bhanwarlal Jain. 7. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in changing protective addition to substantive addition without issuing any show cause notice or opportunity of being heard to the appellant, which is in violation of section 251(2) of the Income Tax Act, 1961 and in violation of the principles of natural justice. 8. On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in confirming the addition made by Id. AO, without providing any opportunity of cross examination, without any corroborative evidence and without providing copy of statements relied upon. 9. The appellant craves to add, alter, classify, reclassify, delete or modify any of the above grounds of appeal and requests to consider each of the above grounds without prejudice to one another. 4. We have heard the rival submissions and perused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the revenue did not even challenge the same further before this tribunal. We further find that the ld. AO in para 6 of his order had emphatically mentioned that all the activities during the previous year relevant to the block period are identical to that of the assessee's activities during the previous year under consideration. While this is so, there is no reason for the ld. CIT(A) to take a divergent stand of confirming the protective addition of commission income in the hands of the assessee herein for the Asst Year 2015-16. Moreover, for the same block period pertaining to Asst Years 2008-09 to 2014-15, we find that this tribunal in ITA No. 2669/Mum/2018 dated 6.8.2021 had estimated the commission income in the hands of Shri Bhanwarlal Jain on substantive basis. Hence consistently, the substantive addition has always been made only in the hands of Shri Bhanwarlal Jain for this commission income. Hence there could be no confusion that would lie in the mind of the revenue, as to in whose hands this commission income should be assessed, in order to justify its protective addition. Hence we direct the ld. AO to delete the protective addition of commission income of Rs 19,78,180 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viding accommodation entry bills. In our opinion such circumstances, the lower authorities are not justified in sustaining the addition to cover the low gross profit rate on the basis of books of account of the assessee which has not been accepted by the department and percentage commission has been assessed treating the purchase and sales recorded in books of accounts. Similarly commission income has also been estimated on the unsecured loan advanced by the assessee also. We have noted that in the case of Bhanwarlal Jain, the department has taken stand that accommodation entries have been provided through the assessee concern. The revenue has to take one stand and cannot treat the assessee simultaneously as accommodation entry provider as well as genuine concern engaged in trading of the diamond. In view of the above discussion, we set aside the finding of the ld. CIT(A) on the merit of the addition and direct the A.O to delete the addition of Rs.2,71,98,014/-. 5.1. Respectfully following the aforesaid order of this tribunal, we delete the addition made on account of Gross profit of Rs 4,01,58,089/- in the hands of the assessee herein for the Asst Year 2015-16. 6. We further fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es made by assessee. This has not been understood by the ld. CIT(A) while making this substantive addition. In any case, the substantive addition of commission income has already been made in the hands of Shri Bhanwarlal Jain and the similar addition was also confirmed in his hands during the block period also. Hence there cannot be any further addition of Rs 2,65,830/- in the hands of the assessee herein even on protective basis. Accordingly, the same is deleted. 7. In view of the aforesaid observations, all the additions made in the hands of the assessee herein are deleted. 8. Since we have already allowed the appeal of the assessee on merit, the ground raised by the assessee challenging the legality / validity of reassessment proceedings has been rendered academic and therefore we are not adjudicating the same and the same is left open. 9. Both the parties before us submitted that the facts and nature of additions made in the hands of other assessees viz Shri Virendra R Vijayvergiya (ITA No. 383/Mum/2022) ; Shri Gagan K Chandaliya (ITA No. 305/Mum/2022) and Shri Sampat Kumar Dadhich (ITA No. 345/Mum/2022) , hence the decision rendered hereinabove in the case of Sonam Gems Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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