TaxTMI 
TaxTMI 
2016 (4) TMI 118
X X X X Extracts X X X X
X X X X Extracts X X X X
.... determined at Rs. 42,66,010/- in view of the following additions/disallowances to the returned income :- (i) Cash Component of brokerage Rs. 4,80,000/- (ii) Undisclosed investment in diamond jewellery Rs. 9,37,010/- (iii) Undisclosed investment in gold jewellery Rs. 3,67,878/- (iv) Transaction with M/s. Vinita Estates Rs. 12,34,640/- (v) Excess Bank credits Rs. 9,37,788/- Penalty proceedings u/s 271(1)(c) were also initiated for filing inaccurate particulars of income. 2.2 On appeal, the Ld. CIT(A) allowed the assessee partial relief whereby the additions were restricted to Rs. 17,14,640/-. 2.3 In the course of penalty proceedings before the Assessing Officer, the assessee filed here objections to levy of the same and placed reliance on certain judicial pronouncements. There submissions by the assessee did not find favour with the Assessing Officer who held that both in assessment as well as penalty proceedings, the assessee was not able to place on record any material evidence to corroborative her claim/contentions. In that view of the matter, the Assessing Officer proceeded to levy penalty of Rs. 5,56,765/- u/s 271(....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g Officer and confirmed by the Ld. CIT(A) which formed the basis for levy of penalty u/s 271 (1) (c) having been deleted by the co-ordinate bench in the aforesaid order, the penalty of Rs. 5,56,765/- levied in this regard would not non survive and its therefore to be cancelled. 3.3.1 We have heard both the Ld. AR for the assessee and the Ld. DR for revenue in the matter and perused and carefully considered the material on record in the matter of the penalty of Rs. 5,56,765/- levied u/s 271(1)(c) of the Act for Asst. year 2007-08. As submitted by the Ld. AR for the assessee, we find that the co-ordinate bench of this Tribunal in its order in ITA Nos . 7770 & 8130/-Mum/2010 dt. 06/01/2016 has considered both the additions made by the Assessing Officer of (i) Rs. 4,80,000/- on account of cash component of brokerage and (ii) Rs. 12,34,640 on account of transactions with Vinita Estates and deleted them. 3.3.2 In respect of the additions on account cash component of brokerage amounting to Rs. 4,80,000/- after laying out the details at para 3, the co-ordinate bench at paras 3to6 thereof (supra) has deleted this addition holding as under:- 3. The first common issue urged by ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the Tribunal in the case of Shri Rajeev C. Batra in ITA No.7772/Mum/2010 for the assessment year 2003-04, wherein similar addition made/confirmed by the AO/CIT(A) on the basis of the same seized document has been deleted by the Tribunal and the findings of the Tribunal in para 6 of the said order is extracted hereunder:- "I have considered the rival submissions mad by both the sides, perused the orders of the Assessing Officer and the CIT(A) and the paper book filed on behalf of the assessee. I find, the Assessing Officer relied on the order in the case of Shri C.B. Batra and held that the assessee is receiving 50% of the brokerage in cash which is unaccounted in the books. I find, the Assessing Officer has taken this view on the basis of seized documents with regard to two properties namely Regiland Flat in 5th' Floor and Flat at Sommerset Building. No independent enquiry from the purchasers has been made. I find, the CIT(A) had mentioned in para 11.1 of his order that 'at the outset it is to be mentioned that there is no clear cut evidence available to show that any cash component is involved in this transaction.' Further the submissions of the assessee bef....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he impugned orders of the Ld.CIT(A) in the said cases and the additions made/confirmed on this count stand deleted." 6. In the instant year also, the assessing officer has made the impugned addition on the basis of very same documents. Accordingly, consistent with the view taken by the co-ordinate bench of the Tribunal, we hold that the assessing officer has made the impugned addition without bringing any credible material on record. Accordingly, we set aside the order passed by Ld CIT(A) in the hands of these assessees for the years under consideration and direct the AO to delete the addition made towards cash component of brokerage. 3.3.3 In respect of the addition on account of transactions with M/s. Vinita Estates amounting to Rs. 12,34,640/- after laying out the issue at para 8 of the its order, the co-ordinate bench has proceeded to delete this addition holding as under at paras 8 to 12 of its order:- 8. The next common issue that arises in the case of Shri Chaturbhuj T Batra, Smt. Varsha Batra and Shri Karan Batra relates to the addition made on the basis of proforma invoice raised by theses assessees on M/s Vinita Estates (P) Ltd. The addition made by t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....earing, the Ld A.R submitted that the relevant invoices are undated, unsigned and did not bear the acknowledgement of M/s Vinita Estates (P) Ltd. He further submitted that the director of the above said company as well as the accountant of the above said company has denied the transactions. He further submitted that the statement of actual brokerage given by M/s Vinita Estates (P) Ltd to the assessees herein was furnished to the AO and the assessing officer has not brought any material on record to show that these assessees have received any money over and above that mentioned in the statement. By placing reliance on the decision rendered by Hon'ble Supreme Court in the case of Godhra Electricity company (225 ITR 746)(SC), the Ld A.R contended that the assessing officer could assess only the real income has accrued or received or deemed to have been accrued or received. He submitted that the assessing officer has not brought any material to show that the income stated in the proforma invoices has accrued to the assessees herein. 12. Thus, we notice that the assessing officer has made the addition by disbelieving the statements given by the assessees and M/s Vinita Estates ....