2018 (4) TMI 310 - AT - Income Tax

Tribunal instructs AO to reconsider assessment based on new evidence, reduces addition amount, case remanded for fresh adjudication.

The Tribunal set aside the assessment order and instructed the AO to reconsider the case based on new evidence presented, including a certificate from a ... Addition on commission or profit from MCX - profit derived from trading through Multi commodity exchange - Held that:- In the present case, it appears that the assessee was not the member of the exchange MCX rather she was acting through Shri. Raman Kumar Grover who was member of Multi Commodity Exchange of India Limited (MCX) and later on he was declared as defaulter. The assessee also furnished a certificate issued by Raman Kumar Grover, copy of which is placed at page no. 49 of the assessee’s paper book in the said letter it is clearly mentioned that the assessee earned commission of ₹ 1,51,357/- and was neither entitled to nor received any other commission or profit from MCX India Limited for the year ended on 31.3.2010. However, the said letter was not available either to the AO or to the learned CIT(A) but it goes to the root of the matter, to resolve the present controversy. We, therefore, deem it appropriate to set aside this issue back to the file of the AO to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee. - Appeal of the assessee is allowed for statistical purposes Issues Involved:1. Applicability of Section 147/148 of the Income Tax Act.2. Sustenance of addition of Rs. 5,66,023 on account of profit derived from trading through Multi Commodity Exchange (MCX).3. Setting aside the assessment order due to the inability to produce a key witness.4. Levy of interest under Section 234 of the Income Tax Act.Issue-wise Detailed Analysis:1. Applicability of Section 147/148 of the Income Tax Act:The appellant argued that the provisions of Section 147/148 of the Income Tax Act were not applicable to their case, and thus, the assessment order should be quashed. The assessee contended that the return filed in response to the notice under Section 148 declared an income below the taxable limit, implying no income had escaped assessment. The CIT(A) and the AO, however, justified the reopening of the assessment based on the information received from MCX, which indicated unreported income.2. Sustenance of Addition of Rs. 5,66,023 on Account of Profit Derived from Trading through MCX:The primary grievance of the assessee was the addition of Rs. 5,66,023, sustained by the CIT(A) out of the total addition of Rs. 7,17,400 made by the AO. The AO based the addition on information received from MCX, which detailed the profit from trading activities. The assessee claimed that they only received a commission of Rs. 1,51,377 and had no knowledge of the remaining transactions, attributing them to Mr. Raman Kumar Grover, who allegedly used the assessee's PAN for his transactions. The CIT(A) acknowledged the commission income as part of the total profit and reduced the addition accordingly. However, the assessee's inability to produce concrete evidence against the MCX report led to the sustenance of the remaining addition.3. Setting Aside the Assessment Order Due to the Inability to Produce a Key Witness:The assessee requested that the assessment order be set aside because they could not produce Mr. Raman Kumar Grover, who was behind bars, during the assessment, appellate, or remand proceedings. The CIT(A) and the AO did not find this argument sufficient to negate the addition, as the assessee failed to provide substantial evidence to counter the information received from MCX.4. Levy of Interest under Section 234 of the Income Tax Act:The assessee contended that the levy of interest under Section 234 was arbitrary, unjust, and excessive. However, this issue was not elaborated upon in the judgment, and the primary focus remained on the addition of income from MCX transactions.Conclusion:The Tribunal considered the submissions and evidence presented by both parties. It noted that the assessee was not a member of MCX and acted through Mr. Raman Kumar Grover, who was later declared a defaulter. Given the new evidence—a certificate from Mr. Raman Kumar Grover stating the assessee's limited commission income—the Tribunal deemed it appropriate to set aside the issue back to the AO for fresh adjudication. The AO was instructed to consider the new evidence and provide a reasonable opportunity for the assessee to be heard. The appeal was allowed for statistical purposes.