TaxTMI 
TaxTMI 
2018 (4) TMI 310
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....during the course of assessment proceedings, appellate proceedings or during the remand proceedings before the AO as he was behind the bars. iv. That the levy of interest u/s 234 of I.T. Act is arbitrary, unjust, illegal and at any rate, very excessive. 2. The main grievance of the assessee in this appeal relates to the sustenance of addition of Rs. 5,66,023/- out of the additions made by the AO on account of trading through Multi Commodity Exchange. Facts of the case, in brief, are that the AO reopened the case of the assessee by issuing a notice u/s 147 dated 31.12.2013. In response the assessee filed the return of income on 9.2.2015 declaring an income of Rs. 1,21,821/-. During the course of assessment proceedings, the AO called the information u/s 133(6) of the Income Tax Act (hereinafter referred to as 'the Act') from the Multi Commodity Exchange (MCX) Mumbai. In response to which the MCX supplied the information vide letter dated 4.3.2015, gist of which was as under:- Date MTM Value (+ve= Profit; -ve = Loss 26.06.2009 6000 27.06.2009 17000 04.08.2009 -17000 05.08.2009 45000 07.01.2010 -17730 08.01.2010 8380 11.01.2010 4750....
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....ritten submissions which read as under:- "To support the grounds of appeal it is submitted as under:- 1. Ground No. 1 The assessee has duly filed the return in pursuance to notice u/s 148 declaring income at Rs. 121821/- which was below taxable limit and there was no income which has escaped assessment and hence section 148 is not applicable. 2. Ground No. 2 (a) The Id. A. O. made an addition of Rs. 717400/- on account of profit from trading in Multi Commodity Exchange (MCX) as discussed in para 4 of his order on the ground that on perusal of AIR/CIB transaction generated through system it is gathered that the appellant entered into transactions amounting to Rs. 11.18 crores on adhoc estimate of income of 1% was made by the Id. A.O. while forming an income has escaped assessment. There was no basis with the Id. A.O. to'estimate income at 1% and hence the very basis on which opinion was formed is arbitrary and illegal. (b) As regards information u/s 133(6) obtained from MCX showing profit of Rs. 71740O/-and addition made it is submitted as under: - (i) A copy of computation of income is enclosed as App-A. Copies of letters filed by the appellant are enclosed as Ap....
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....ntered by her. (vii)Reliance is placed on IT AT Judgement Mumbai Bench in the case of M/s ANS Law Associates Vs. ACIT ITA NO. 5181 /M/2012 enclosed as App - G where it was held as under: - "It has been held time and again by this Tribunal that the additions made solely on the rasis of AIR information are not sustainable in the eyes of the law. If the assessee denies mat he is in receipt of income from a particular source, it is for the AO to prove that the assessee has received income as the assessee cannot prove the negative. Reliance can be placed in this respect on the decision of the Tribunal in the case of 'DCIT vs. Shree G.Kumar" in ITA No.868/Bang/2009 decided on 22.10.10 and another case in the case of "Aarti Raman vs. DCIT" in ITA No.245/Bang/2012 decided on 05.10.12. Copy of judgment is enclosed. Reliance is also placed on ITAT Judgement in AF FERGUSON & CO. vs. JCIT where also it was held that addition made solely on the basis of AIR is not sustainable copy of judgment is enclosed as G-l It is therefore requested that addition of Rs. 717400/- may kindly be deleted. 3. Ground No. 3 That without prejudice to grounds above it is submitted that the commission of....
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....d have been sent. Thus in appellant's humble submission there is no basis with the Id. A.O. to make the above addition of Rs. 717400/- and hence the above addition may kindly be deleted." 6. The assessee further submitted to the learned CIT(A) that the commission of Rs. 1,51,377/- was shown by the assessee having been received from MCX, which was part of the income of Rs. 7,17,400/- as computed by the AO therefore, the same may be excluded from the addition of Rs. 7,17,400/- and that the commission assumed by the Assessing Officer at 1% was very excessive and without any basis. The assessee furnished the written submissions vide letter dated 20.3.2017 before the learned CIT(A) which is reproduced verbatim as under:- "To support the grounds of appeal the appellant has already filed written submissions before your honours on 10.05.2016 & 23.02.2017. A certificate from Raman Kumar Grover Member MCX of India Ltd. dated 05.03.2017 is enclosed to prove that the assessee was neither entitled to nor received any other commission or profit from MCX India other than 151377/- shown by her in the Income Tax Return. It is once again submitted as follows:- 1. The appellant never rece....
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....d. AO. Accordingly, the addition of Rs. 1,51,377/- is deleted & the addition of Rs. 5,66,023/- (7,17,400-1,51,377) is confirmed. Hence, the ground Nos. 2 & 3 are partly allowed." 8. Now the assessee is in appeal. 9. The learned counsel for the assessee reiterated the submissions made before the authorities below and further submitted that the transactions worth Rs. 11.18 Crore were not carried out by the assessee in MCX and it appears that Shri. Raman Kumar Grover had entered his own transactions with MCX, quoting assessee's PAN about which the assessee had absolutely no knowledge and similar submissions were made before the AO vide letter dated 30.3.2015, a reference was made to page no. 10 of the assessee's paper book. The learned counsel for the assessee also drew our attentions towards page nos. 11 to 19 of the assessee's paper book which are the copies of the details obtained by the AO from MCX under Section 133(6) of the Act. Our attention was drawn towards page no. 12 wherein it was mentioned that the Member I.D. 28370 Raman Kumar Grover had been declared defaulter w.e.f. 26th July, 2012 vide exchange circular 278 dated against 02,2012. 10. The learned counsel for t....