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TMI Blog2024 (11) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... of the bank credits has to be assesseed as per the direction of the Tribunal order dated 18.10.2013 is devoid of any merit on the simple reasoning that the bank credits are not assessable as unexplained credits u/s 68 of the Act and each accommodation entry is independent and separate transaction. Tribunal as directed the appellant/assessee to produce the evidence and demonstrate the chain of transactions before the AO during the course of remitted proceedings. Tribunal has clarified that the burden of proof to produce the evidence and demonstrate the chain of transactions, layering indulged by him in the calculation of peak credits and to prove each credit in the books of each assessee is on the appellants/assessees. However, we have noticed that the appellants/assessees, during the second round of assessment proceedings, failed to follow the directions of the Tribunal vide order dated 18.10.2013. Therefore, the AO was constraint to assess the entire credits u/s 68. Without offering any comment on merit of the case, we deem it fit to set aside the impugned orders and remit the matter back to the file of the AO for deciding the issue of peak credit in light of the above observation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the Assessing Officer has already considered commission income on the amount of accommodation entries given to outside parties from other group entities to which entities entries had been transferred from the account of the Appellant and transactions of deposits and of giving entries are two sides of same transaction. 3. The CIT(A) failed to appreciate that there is no question of proving identity and credit worthiness of the parties in relation of cash deposits which deposits are admittedly part business of providing accommodation entry and, therefore, he has erred in taking a view that appellant has not been able to provide required information in regard to cash deposits. He also failed to appreciate the directions of ITAT in this regard. 4. That the CIT(A) also erred in not restricting the addition in respect of cash deposits with reference to peak credit as per directions of the Hon'ble ITAT vide order dated 18 10.2013. 5. That the CIT(A) also failed to appreciate that considering the cash deposits as income is also contrary to the stand taken by the Department while passing the assessment orders in Noida Charge, in the cases of Group, in which cases commission income ha ..... 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. 5. That the CIT(A) erred in upholding the addition of Rs. 48,59,333/- under Section 69 of the Act without appreciating that entries in the form of booking of flats were also entries in the nature of accommodation and there was no actual investment made by the Appellant Company and, therefore, no addition on this account was called for. 6. That the CIT(A) failed to appreciate that accommodation entry could be given either in the form of investment in share capital or in any other form, including booking of flats and therefore, only commission Income in respect thereof could be taken. 7. That the orders passed by the Assessing Officer and CIT(A) are bad in law and therefore, deserve to be quashed. . In nutshell, Unique Capital Pvt. Ltd., the appellant/assessee has challenged the working of commission income @ 2% on booking advan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 153A, 153C and 148 of the Act, of this Group cases. 5. The AO taxed the entire accommodation entries/unexplained credits in each assessee of this Group and also the commission income @ 2,00% thereon, as required, in the initial assessments completed under section 153A, 153C and 148 of the Act. In first round appeals, the Ld. CIT(A) upheld the findings of the AO. However, the Tribunal, in cases of Tarun Goyal others belonging to Tarun Goyal Group of cases (94 appeals) in I.T.A. Nos. 4636 4637/Del/2012, etc., including the appellants/assessee s cases decided these initial appeals vide consolidated order dated 18.10.2013 as under: 20. The undisputed fact accepted by the assessee is that Mr. Tarun Goyal was running a racket of providing accommodation entries by floating numerous companies. The modus operandi brought out by the AO in the assessment order, is not disputed by the assessee. The only issue before us is the quantification of the income in the hands of Mr. Tarun Goyal and each of the entities formed by him. Each company is an assessee and an assessment order has to be passed separately in each case. The credits appearing in the books of each assessee have to be expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in of transaction, the layering indulged by him, the calculation of peak unexplained credit etc. and to prove each credit in the books of each assessee. In the result all these appeals are set aside to the file of the AO for fresh adjudication in accordance with law. 25. In the result all the appeals are allowed for statistical purposes. 6. In pursuance of the above-mentioned Tribunal order, the Assessing Officer (hereinafter, the AO ) completed assessments vide orders dated 17.02.2015 as detailed hereunder: S. No. Assessee AY Assessments completed u/s of the Act Assessed income 1. Vivek Plantation Pvt. Ltd. 2005-06 153C/153A/254 4,61,00,200/- Vivek Plantation Pvt. Ltd. 2006-07 153C/153A/254 1,94,37,884/- 2. Unique Capital Pvt. Ltd. 2005-06 153C/153A/254 1,70,31,486/- Unique Capital Pvt. Ltd. 2006-07 153C/153A/254 91,08,458/- 3. Tejasvi Investments (P) Ltd. 2008-09 153A/254 2,18,34,100/- Aggrieved with assessments in remitted matters, appellants/assessees filed appeals before the Ld. CIT(A), however, they did not succeed. 7. The Ld. Counsel submitted that two core issues in these appeals were (i) taxability of entire credits appearing in books of account/bank account as unexplained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the fact that Tejaswi Investment Pvt. Ltd. provided accommodation entries in the garb of investment/through booking of flats. So, it had to be assessed on commission income @ 0.50% only. Therefore, he prayed for deletion of Rs. 43,59,333/-; accommodation entries provided to M Tech Developers Pvt. Ltd. 10. The Ld. CIT-DR submitted that the Ld. Sr. Counsel had not appreciated the finding of the Tribunal order dated 18.10.2013.She drew our attention to para 24 of the order of the Ld. CIT(A) and para 11 of the assessment order. She contended that the Tribunal has not given any categorical finding to tax the peak of bank credits. She was surprised on the arguments of the Ld. Counsel that how set off of accommodation entries of X can be given to the Y . She contended that each accommodation entry was independent and it had to be assessed in case if the same was unexplained either in the hands of the appellants/assessees providing accommodation entries or in the hands of beneficiaries. Since the Tribunal had given a categorical finding to tax the same in the hands of the appellants/assessees providing accommodation entries if the same was not taxed in the hands of other business conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peak unexplained credit in each case after elimination of circular transaction(s) within the sister concerns. The said direction of Tribunal order dated 18.10.2013 was not for taxing the bank credit. It was exclusively for restricting the addition under section 68 of the Act to only the peak unexplained credit after elimination of circular transaction(s), if any, within the Group concerns. In other words, the one and only one inference that emerged from the Tribunal order dated 18.10.2013 is that the entire credits appearing in the books of account/bank account(s) for providing accommodation entries to beneficiaries have to be assessed in the hands of the appellants/assessees if the same was not taxed elsewhere in the hands of other business concerns of this Group involved in providing accommodation entries to beneficiaries. 14. In view of the above, we find merit in the arguments of the Ld. CIT-DR. We are of the considered view that the Ld. Counsel s argument that the peak of the bank credits has to be assesseed as per the direction of the Tribunal order dated 18.10.2013 is devoid of any merit on the simple reasoning that the bank credits are not assessable as unexplained credits ..... X X X X Extracts X X X X X X X X Extracts X X X X
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