TaxTMI 
TaxTMI 
2016 (10) TMI 1127
X X X X Extracts X X X X
X X X X Extracts X X X X
....l for the assessee submits that the Assessing Officer passed assessment orders in all these assessment years without giving sufficient opportunity to the assessee. The Ld. Counsel for the assessee submits that in identical additions were made completing the assessments as many as 70 cases on a single day on 8.12.2011 without giving adequate opportunity. 3. The Ld. Departmental Representative however submits that in the course of assessment proceedings, assessee has filed written submissions, furnished evidences, therefore it is not correct to say that no proper opportunity was given to the assessee. 4. Coming to the merits of the case i.e. addition made at 2% of gross deposits as against 0.15% offered by the assessee, the Ld. Counsel for the assessee submits that on identical facts, the Coordinate Bench has decided this issue holding that income by way of commission from the business of accommodation entries being carried out by Mukesh Chokshi group was liable to be assessed at 0.15% instead of 2% applied by the Assessing Officer. The Ld. Counsel for the assessee relied on the following decisions: Sl. No. ITA Nos. Name of the assessee Date of order 1. ITA Nos. 19 to 22/M/20....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cal purpose. ITA Nos. 924 & 928/M/2015 - A.Yrs 2004-05 & 2009-10 8. These two appeals are filed by the assessee against the orders of the Ld. CIT(A)-38, Mumbai dated14.11.2014 in confirming the penalty levied u/s. 271(1)(c) of the Act on the income assessed by the Assessing Officer on estimating the commission in providing accommodation entries by assessee. 9. The Ld. Counsel for the assessee submits that on identical circumstances penalty is deleted in the case of Alpha Chemie Trade Agencies Pvt. Ltd. by the Co-ordinate Bench of the Tribunal in ITA No. 698 & 709/M/2015. The Ld. Counsel for the assessee submits that the order of the Ld. CIT(A) is common in the case of Alpha Chemie Trade Agencies Pvt. Ltd. and also the present assessee viz., Jayesh K. Sampat. Since facts and circumstances being identical, the same may be followed. 10. The Ld. Departmental Representative placed reliance on the order of the assessment order. 11. We have heard the rival submissions and perused the orders of the authorities below. We find that on identical situation where the commission was assessed in providing accommodation entries at 0.15% as against 2% assessed by the Assessing Officer, the pe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d., wherein the coordinate Bench deleted the penalty levied under section 271(1)(c) of the Act. In an identical facts and circumstances in the case of M/s. Kaycee Shares Broking Pvt. Ltd., the coordinate Bench deleted the penalty by following the decision in the case of M/s. Mihir Agencies Pvt. Ltd. The operative portion of the order is reproduced herein under:- "4. In the above background, Ld. Representative for the assessee pointed out that similar situation has been dealt with by the Tribunal in the case of Mihir Agencies Pvt. Ltd., & Mr. Mukesh Choksi (supra), wherein the penalty levied under section 271(1)(c) of the Act has been deleted. Ld. Representative for the assessee pointed out that the Tribunal has duly noted that the difference between the assessee and the Revenue was primarily on the estimation of income earned from providing of accommodation entries and, therefore, the same would not be exigible for penalty under section 271(1)(c) of the Act. In this context, he has referred to the following discussion in the order of the Tribunal dated 27/07/2016 (supra):- "6.We have heard the rival submissions and produce the material before us. We find that case under consi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the ground that it was a clear case of furnishing inaccurate particulars of income. The FAA deleted the penalty holding that the addition made by the AO on the basis of estimated profit could not be a subject-matter of penalty for concealment of income. The Tribunal confirmed this order. On appeal, the AO dismissed the appeal and held that the finding arrived at by the Tribunal did not warrant interference as it was purely a finding of fact. In the case of Durga Kamal Rice Mills(265 ITR 25)the Hon'ble Calcutta High Court has held as under: "When two views are possible and when no clear and definite inference can be drawn, in a penalty proceeding, penalty cannot be imposed.......In quantum proceedings, a particular provision might be attracted for addition to the income of the assessee. But when it comes to the question of imposition of penalty, then independent of the finding arrived at in the quantum proceedings, the authority has to find conclusively that the assessee owns the concealed amount." Considering the fact that Tribunal has adopted a particular rate for estimating the income of the assessee for the year under consideration, we hold that the FAA was not justified i....