TaxTMI 
TaxTMI 
2019 (3) TMI 896
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....(ASSESSEE'S APPEAL) 1. The Ld. CIT(A) has erred on facts and in law in estimating the commission income of the appellant @0.80% of the amount of Rs. 83,71,29,511/- amounting to Rs. 66,97,036/-. 2. The appellant craves for liberty to add fresh ground(s) of appeal and also to amend, alter, modify any of the grounds of appeal. ITA NO. 1628/DEL/2015 (AY 2011-12) (ASSESSEE'S APPEAL) 1. The Ld. CIT(A) has erred on facts and in law in estimating the commission income of the appellant @0.80% of the amount of Rs. 213,01,14,122/- amounting to Rs. 1,70,40,912/-. 2. The appellant craves for liberty to add fresh ground(s) of appeal and also to amend, alter, modify any of the grounds of appeal. ITA NO. 1629/DEL/2015 (AY 2012-13) (ASSESSEE'S APPEAL) 1. The Ld. CIT(A) has erred on facts and in law in estimating the commission income of the appellant @0.80% of the amount of Rs. 632,73,87,632/- amounting to Rs. 9,49,10,815/-. 2. The Ld. CIT(A) has erred on facts in law in confirming addition of Rs. 3,16,45,606/- out of the seized cash / pay orders and has further erred in not setting off this income assessed on the basis of seized assets against the estimated commission incom....
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....CIT(A) has erred in law and on facts as well in deleting the addition of Rs. 599,94,54,170/- out of total addition of Rs. 632,73,87,632/- on account of unexplained credits and entries without examining and adjudicating upon on merits of the cases. 2. The Ld. CIT(A) has erred in law and on facts as well in allowing relief to the assessee amounting to Rs. 5,99,94,54,170/- without appreciating the fact that the assessee has failed to discharge his onus of explaining the cash credits found recorded in his books / banks accounts. 3. The Ld. CIT(A) has erred in law and on facts as well in deleting the addition of Rs. 25,95,11,221/- out of total addition of Rs. 29,11,56,727/- unexplained deposits in bank entries and cash found without examining and adjudicating upon merits of the cases. 4. The Ld. CIT(A) has erred in law and on facts as well in deleting the addition of Rs. 4,42,91,715/- out of total addition of Rs. 9,49,10,815/- on account of commission income @1.5% without examining and adjudicating upon on merits of the cases. 5. a) The order of the CIT(A) is erroneous and not tenable in law and on facts. (b) The appellant craves leave to add, alter or amend any / all of ....
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.... iii) Documents mentioning receipt of cash from various persons and arrangement of routing the same through various group entities of Shri Himanshu Verma were found and seized from this premise, as discussed in subsequent para, iv) Laptop of Shri verma found from this premise also contained Id and other details of various dummy directors/partners/proprietors. v) Details of bank accounts maintained by various entities of Shri verma were found mentioned in a diary, as discussed in subsequent para, vi) Himanshu Verma himself used to sign for the benami/dummy directors/partners/proprietors on cheques etc. 2.2 Thereafter, the AO has referred to the details of seized documents and also the seizure of a sum of Rs. 28,59,79,727/- and also cash found of a sum of Rs. 51,77,000/- and in this manner the AO determined the total of accommodation entries provided by the assessee in these three financial years as follow;- Financial Year 2009-10 2010-11 2011-12 Rs. 68.17 crore Rs. 213 crore Rs. 632.47 crore 2.3 The AO further noticed that there were cash deposits in the bank accounts aggregating to Rs. 235,96,03,074/-. The financial year wise bifurcatio....
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....1/- and addition of Rs. 3,16,45,506/- has been sustained and AO was directed to re-compute the commission income of the assessee at Rs. 5,06,19,100/- as against Rs. 9,49,10,815/-. It is germane to mention here that Ld. CIT(A) while deciding the appeal of the assessee for the assessment year 2010-11, has taken in to consideration the submission of the assessee regarding non-providing sufficient opportunity by the AO and this issue has been decided by Ld. CIT(A) has per observation in para 7 as follow:- "7. I have gone through the assessment order carefully and also the written submissions and case laws relied upon by the appellant and considered them. I have also called for the assessment record and perused it wherever necessary. On perusal of the assessment order it is seen that there was sufficient correspondence pertaining to the queries raised by the Assessing Officer and replies furnished by the appellant. However, I find that in the entire assessment order the Assessing Officer relied on the material found and seized and also on the statements of the appellant and statements of the dummy directors and proprietors and made out a case that the appellant is an accommodation en....
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....ment totally taking a different view contrary to the admission and material on record. No corroborative or supporting evidence is brought on record by the Assessing Officer indicating that the deposits made in the intermediary companies, managed and controlled by the appellant and which were provided to the beneficiaries actually belonged to the appellant only for treating the same as income of the appellant. The appellant was cooperative and provided all the information pertaining to his business operation, paper entities, details of the beneficiaries, commission received etc. However, having accepted that the appellant is an entry operator, the Assessing Officer was unreasonable and unjustified to make an addition of Rs. 84,73,56,032/- as income of the appellant. Therefore, there is merit in the ground raised by the appellant for not providing sufficient opportunity to explain his version to impeach or negate the opinion/view harnessed by the Assessing Officer." 2.5 While deleting the addition in respect of accommodation entries the observation of CIT(A) after considering the submission of the assessee are reproduced as under:- "10. I have gone through the assessment order ....
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....accounts with the details of the bank account, bank branch and the name of the entity holding those bank accounts which were utilized for providing accommodation entries. e) In the assessment order the Assessing Officer also elaborated in detail the management and control exercised by the appellant and his partner in the name of directors, partners, and sole proprietors. In support of the same, a number of cheque books containing blank and signed and unsigned cheques of various entities, copies of bank statement of various banks, details of bank transactions related to different entities were found and seized and incorporated such information in the assessment order. f) The Assessing Officer listed the names of 15 persons who were dummy directors, partners, proprietors of various entities managed and controlled by the appellant. The statements of 15 persons was also recorded u/s 131(1A) of the I T Act. To drive home a point, the Assessing Officer also incorporated the relevant portion of the statement recorded of one of the persons mentioned here. It was accepted by all of them that documents were endorsed at the instance of the appellant for which they were paid ....
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....can be considered as the income of the appellant. The Assessing Officer's effort to tax it u/s 68 is devoid of any merit as the sum of Rs. 83,71,29,511/- is not a cash credit in the books of account of the appellant or the books of the entities controlled or managed by the appellant as per the observation of the Assessing Officer himself. 10.1.5 The provision relating to cash credit was provided for the first time in the I T Act, 1961 as there was no corresponding provision in the I T Act, 1922. For the purpose of better comprehension, the section may be divided into the following parts: "i) Where any sum is credited in the books of account of the appellant/assessee ii) Maintained for any previous year iii) Assessee offers no explanation about a) the source and b) the nature iv) The explanation offered by him is not in the opinion of the Assessing Officer satisfactory v) The sum so credited may be charged to income tax vi) As the income of the assessee of that year, in relation to which is so found to have credited." The catch words in this section are "Any sum found credited" and "in the books ....
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....s entities controlled and managed by him. Therefore, there is no question of Rs. 83,71,29,511/- found credited in the books of accounts of the appellant. 10.1.8 Section 68, when is applicable? Section 68 is applicable when the appellant's explanation with respect to the cash credit is rejected as being unsatisfactory and also where the appellant does not render any explanation. The Assessing Officer while accepting the fact that the appellant is an entry operator in the assessment order, suddenly made a u-turn towards the end of the assessment order without citing any reason, or without giving any opportunity or quoting a specific provision of law rejected the claim of the appellant that cash was received from the beneficiary companies in lieu of loan/capital gain money on the ground that he did not disclose the name, addresses, PAN of the alleged beneficiaries. It may not be out of place to mention that in the assessment order itself, the Assessing Officer based on the perusal of seized material, details provided and bank statements, tabulated a detailed account of entire operation giving the names of complete intermediaries utilized by him for providing accommodation entri....
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....ason to presume illogically that the appellant had deposited his own cash to the tune of Rs. 83,71,29,511/- which was used to issue cheques to the beneficiaries. Further, the disclosure/surrender made by the Chandigarh based seven beneficiary companies against the cheques received from the appellant further strengthens the case of the appellant as an entry provider and cash deposited in the bank accounts of different entities (which the Assessing Officer tabulated on page 64 of the assessment order amounting to Rs. 235,96,03,074) for different years for issuing cheques do not belong to him, but moneys of the beneficiaries to whom cheques were issued (list of beneficiaries tabulated by the Assessing Officer on pages 107-- 20 of the order who received cheques from the appellant's group entities). Therefore, taxation of this sum amounting to Rs. 83,71,29,511/- should be made in the hands of the beneficiaries, as it occurred in the case of disclosure made by seven beneficiary companies which was correct and consistent with the facts and circumstances of the case. The effort of the Assessing Officer to tax this sum of Rs. 83,71,29,511/- in the hands of the appellant is not only detr....
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....iciary accounts. Reference is made to the case of Manoj Aggarwal Vs DCIT (2008) 117 (Del) (SB) 145 and Hon'ble Special Bench of ITAT Mumbai in the case of M/s Gold Star Finvest (P) Ltd. Vs ITO ITA No. 4625/Mum/2005 for preposition that in the case of the entry providers the income to be assessed would be only the premium/brokerage/commission received by them and not the cash deposits in their hands Reference is also made to the case of Sh. Abhay Chand Bardia and Sh. SK Jain settled by the Hon'ble income Tax Settlement Commission, Principal Bench, New Delhi where also only the brokerage income was assessed and not the cash deposit appearing in their handsinterestingly, both the appellant and the Assessing Officer referred to the case of Sh. S. K. Gupta. Even though the facts of the appellant's case are identical to that of the facts of the case relied upon by the Assessing Officer, yet he rejected the appellant's submissions. 10.1.13 The cases referred by the Assessing Officer in the assessment order has no relevance here as the facts of the present case do not fit into the provisions laid down in section 68 of the I T Act, 1961. 10.1.14 In view of the aforesai....
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.... made to dummy directors, proprietors, individuals etc as mentioned in above para. The Assessing Officer did not take into account these expenses and applied 1.5% on an estimate basis as commission income and made an addition to the income of the appellant. An estimation has to be based on some concrete material in hand or on the basis of any comparable case having identical facts. 13.1.3 The AR of the appellant also relied on the ratio of the following judicial decisions where commission income was determined on similar facts of the case: a) Manoj Aggarwal (2008) 113 ITD 377 (Del) b) Sh. S. K. Gupta u/s 245D(4) of the I T Act, 1961 by the Hon'ble Settlement Commission. c) Sanjay Kumar Garg Vs ACIT (2011) 12 Taxman.com 294 (Delhi) d) Sanjay Rastogi Vs ACIT ITA No. 164 to 168/De1/2010. In all the above cases only commission income net of expenses have been assessed. The AR of the appellant also tabulated the estimated rate of commission on the basis of the above judicial decisions as under:- Authority deciding the matter Name of the assessee Rate of Commission Special Bench of ITAT, New Delhi. Sh. Manoj Aggarwal 0.35 % ....
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....ing to Rs. 29,09,62,065/- made by way of pay orders from various bank accounts are given as under (from the appraisal report): S. No. Action u/s 132 Address of the premises Cash Found/Rs. Cash seized/Rs Jewellery found Jewellery seized 1. 132 In the hands of Sh. Himanshu Verma, C- 44, 1st Floor, Shardapuri, Ramesh Nagar, New Delhi 51,77,000/- 50,00,000/- Nil Nil 2. 132 Bank A/c no. 911020011758447, of M/s Veritable Township Pvt. Ltd., Axis Bank Branch, Ashok Vihar, New Delhi 65,987/- 65,987/- Nil Nil 3. 132 Bank A/c no.911020012187169 of M/s Omex pro Enterprises Pvt. Ltd., Axis Bank Branch, Ashok Vihar, New Delhi 5,22,380/- 5,22,380/- Nil Nil 4. 132 Bank A/c no.911020013042788, of M/s SNG Securities Pvt. Ltd. Axis Bank Branch, Ashok Vihar, New Delhi 1,49,52,528/- 1,49,52,528/- Nil Nil 5. 132 Bank A/c no. 911020003420334, of M/s Cornelius Marketing and Research Pvt. Ltd, Axis Bank Branch, Ashok Vihar, New Delhi 7,38,374/- 7,38,374/- Nil Nil 6. 132 Bank A/c no.910020038244933, of M/s Moo Ambey Clothing Co. Pvt. Ltd. Axis Bank Branch, Ashok Vihar, New ....
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....8,71,258/- Nil Nil 21. 132 Bank A/c no. 910020038229194, of M/s Ridhi Sidhi Clothing Pvt. Ltd., Axis Bank Branch, Ashok Vihar, New Delhi 5,99,77,932/- 5,99,77,932/- Nil Nil 22. 132 Bank A/c no. 910020038535284, of M/s New Millenium Consultants Pvt. Ltd, Axis Bank Branch, Ashok Vihar, New Delhi 9,10,088/- 9,10,088/- Nil Nil 23. 132 Bank A/c no. 911020064172810, of M/s Fusion Portfolio Pvt. Ltd. Axis Bank Branch, Ashok Vihar, New Delhi 1,10,000/- 1,10,000/- Nil Nil 24. 132 Bank A/c no. 912020004013914, of M/s S V Enterprises Axis Bank Branch, Ashok Vihar, New Delhi 9,48,000/- 9,48,000/- Nil Nil 25. 132 Bank A/c no. 912020004427481, of M/s Pushkar Enterprises Axis Bank Branch, Ashok Vihar, New Delhi 35,45,000/- 35,45,000/- Nil Nil 26. 132 Bank A/c no. 912020004677615, of M/s A V Trading Co., Axis Bank Branch, Ashok Vihar, New Delhi 93,49,000/- 93,49,000/- Nil Nil 27. 132 Bank A/c no. 909020045782521, of M/s Green vision Construction Pvt. Ltd. Axis Bank Branch, Ashok Vihar, New Delhi 1,00,07,000/- 1,00,07,000/- Nil Nil 28. 132 ....
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....essment order and record, I find that the Assessing Officer did not discuss anything with regard to the addition made amounting to Rs. 29,11,56,727/-. I also find that in the course of the assessment proceedings, the appellant submitted the audited balance sheet of various entities from whose bank accounts the seizure was made and also the return of income filed by them respectively. On perusal of the same, I find that the amount of seizure made by the Department was shown in their respective financial statements, but the Assessing Officer did not verify or even enquire the source of such deposits found in their bank accounts. It is pertinent to mention here that a large part of the seizure was made from the bank accounts of various entities and according to the Assessing Officer no cash deposit was found in these accounts. From the seizure made, it is evident that the deposits in his accounts did not originate from the cash deposits. 13.1.2 In the course of the appeal proceedings, the AR of the appellant contended that a large volume of transactions was on account of rotation/turnover etc. It was also stated that in several of these cases, the money belonged to the external par....
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....d verified these bank accounts of various entities to establish the name of the beneficiary of such amount and correlate the same with the list of beneficiaries identified or to bring on record new beneficiaries. In all, the amounts found and seized from the bank accounts represented the part of the entries or turnover, as is evident from the tally accounts found in the laptop of the appellant, a snap shot of which the Assessing Officer incorporated in the order. The Assessing Officer also incorporated a table in the assessment order giving the name of the entity, account number, bank branch were cash was deposited. Therefore, in my opinion in view of the above discussion they said seizure amounting to Rs. 28,59,62,065/- (Rs.29,09,62,065 - Rs. 50,00,000/-) cannot be assessed as income of the appellant on account of unexplained cash deposits but turnover/entries. 13.1.4 However, in the course of the appeal proceedings, in response to a query raised the AR of the appellant admitted that in the following cases the audited accounts were not produced before the Assessing Officer. S. NO. Name Amount 1 Silko Fabrics Rs. 81,506.93/- 2 Gulmohar Fabrics Rs.301,0....
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....imanshu Verman only which fact was admitted by Himanshu Verma in his statement recorded on 29-03-2012 at the time of search. She pointed out to the several questions and answers out of statements described by the AO in the assessment order. She also submitted that the laptop also contained all the details of the entities which were being managed and controlled by the assessee, their bank accounts etc. She also pointed out to the search material which was in the shape of unsigned and undated cheques etc. which have also been listed out in the assessment order. She also pointed to several bank statements impounded during the course of search. She also pointed to the examination of 15 of such dummy directors/partners/proprietors which were recorded u/s 143(1)A. referring to all these material she submitted that it has been brought on record that assessee had acted as entry provider. She therefore, submitted that the AO was correct in taking the gross amount of entries provided by the assessee as the income of the assessee. She also submitted that there was evidence on record, according to which the assessee has earned the commission from 1% to 1.50%. Therefore, she contended that the ....
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....rder us/ 245 D (4) of the Act. Copy of this order has been filed in the paper book at pages 226 to 255. The relevant observations were pointed out on para 27 and 28 at pages 250 to 251. 27. After examining the facts of the case, we are of the considered view that the applicant is an entry provider. Therefore, in his case, only, the amount of premium/commission received by the applicant after reducing expenses incurred will be his additional income. The applicant's claim that the loss of Rs. 1,20,64,400 on shares had been added in the premium account, instead of reducing the same in premium account is examined. It is seen from the ledger of premium account that the loss from shares totaling to Rs. 1.20,64,400/- were credited in the premium account from 01-04-2007 to 26-10-2007 instead of debiting the same in the premium account. Therefore, we accept applicant's claim that at the time of working out gross figure of premium/commission, this amount is to be reduced, however, the applicant will not get deduction of Rs. 1,20,64,400/- at the time of computation of income as he has not substantiated that loss with necessary details. The applicant's contention that premium account includ....
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....ing out accommodation entry business. At the time of survey no evidence was found to suggest that the assessee was engaged in real commission business. No other source of income was also found. It is also the case of assessing officer that the assessee was carrying on business of entry provider. The assessments were reopened for this purpose only. The ld. CIT (Appeals) has given a finding of fact that the assessee was engaged in the business of providing accommodation entries and, therefore, the amounts deposited in the account of dummy concerns was to be treated as total receipts on which commission was to be determined. Therefore, we are in agreement with the view of the ld. CIT (A) that only commission can be determined on the deposits made in the bank accounts of the dummy concerns. Therefore, we do not find any infirmity in the order passed by the ld. CIT (A) that the amount deposited in the account of dummy concerns cannot be treated as income of the assessee. Therefore, the ld. CIT (A), in our considered opinion, is justified in treating the cash 38 I.T.A. Nos. 1501, 1502 & 3531 to 3534 (Del) of 2009 AND I.T.A. Nos. 1797, 1798 & 3707 to 3710 (Del) of 2009 deposited in variou....
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.... decisions. "Decision of E Bench of ITAT, New Delhi in the case of M/s Omni Farms Pvt.Ltd., Vs. Deputy Commissioner of Deputy Commissioner of Income Tax in ITA No.3477/Del/2013 dated 28-01-2015, where in referring to the decision of settlement commission referred to as above the ITAT has deleted the addition in the case of conduit company which was found to be an accommodation entry provider. "17. Thus, there is an order of the Settlement Commission as well as the Additional Commissioner of Income Tax under Section 144A holding that Shri S.K. Gupta was providing accommodation entries, he used various companies as conduit for providing the accommodation entries, cash was received through mediators from the persons who wanted to avail the accommodation entries, such cash was deposited in the bank account of the conduit companies and thereafter, cheque of the similar amount was being issued to the beneficiaries (i.e. the person who wanted to avail the accommodation entry) within a day or so. The Assessing Officer himself in the assessment order has accepted these facts. Considering the totality of these facts and the logical consequences of the order of the Settlement Comm....
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.... Ld. CIT(A) that the entire case of AO is that the assessee is an accommodation entry operator and such fact was also admitted by the assessee himself. The assessee has admitted that he is engaged in the activity of providing accommodation entries to various beneficiaries through the entities controlled and managed by him. Thus, Ld. CIT(A) has concluded that the assessee is an entry operator which cannot be disputed. Ld. CIT(A) has also referred to the relevant portion of the statements of the assessee to conclude that the assessee is an accommodation entry provider. It is in this view of the situation she has held that the assessee is an accommodation entry operator. The AO has also reproduced post search statement of the assessee which is recorded on 14-04-2012 wherein the assessee in answering to question No. 9 has stated that he was receiving cheques and RTGS from the company in the shape of loans etc. which were deposited in different companies account which were maintained by him. He also stated that the cash was also being received which was deposited in the bank account of firms, proprietary concerns managed and controlled by him. Similarly, he has also stated that he was r....
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....de by seven Chandigarh based beneficiaries, the AO himself has granted the benefit. Further, Ld. CIT(A), while arriving at the conclusion that the assessee is an entry provider and the cash deposited in bank accounts of different entities (which the AO has tabulated on page 64 of the assessment order amounting to Rs. 235,96,03,074) for different years for issueing cheques do not belong to the assessee but moneys of the beneficiaries to whom cheques were issued (list of such beneficiaries is tabulated by the AO on pages 107-120 of the assessment order) who received the cheques from the assessee's group entities. Ld. CIT(A) has also observed that it is incorrect on the part of AO to allege that the assessee did not provide him with the trail of events leading to the beneficiaries as the AO was in possession of entire information including tally accounts, bank statements, names of entities used as intermediaries, names of the beneficiaries etc. from which the AO himself has culled out every specific and precise information and incorporated the scanned copies in the assessment order. Ld. CIT(A) has also found that the case law relied upon by assessee in the cases of Sanjay Kumar Garg V....
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.... under Section 68 in the case of all the nine companies, which are admittedly conduit companies of Shri S.K. Gupta. 18. In the result, all the appeals of the assessees are allowed. Decision pronounced in the open Court on 28th January, 2015" B. PR COMMISSIONER OF INCOME TAX vs VIJAY CONDUCTORS INDIA PVT. LTD in ITA 683/2015 dated 29-09-2015 Hon'ble Delhi High Court in the case of Pr. Commissioner of Income Tax Vs Vijay Conductors India Pvt. Ltd vide order dated 29-09-2016 has held the order of ITAT ob observation in para 8 as under:- 8. It is not in dispute that the Respondent Assessees are the conduit entities and not the beneficiaries. Consequently, the order of the ITAT deleting the addition under Section 68 of the Act in their hands does not suffer from any legal infirmity. 5.1 In the background of the aforesaid discussions and respectfully following the precedents, as aforesaid, we are of the considered view that Ld. CIT(A) did not commit any error in holding that Assessing Officer was not right in taxing the total turnover of the entries as an unexplained cash credit in the hands of the assessee, who is an entry provider and since the beneficiaries ....
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....cline to interfere in a such well reasoned finding of Ld. CIT(A), hence, we uphold the findings of the Ld. CIT(A) on the issue in dispute and accordingly these grounds relating to the determination of rate of commission by the assessee as well as by the department are dismissed. 6.3 In view of above observations, the Ground-3 in respect of A.Y. 2010-11 and 2011-12 and Ground-4 of appeal for A.Y. 2012-13 in Revenue's Appeals are dismissed and Ground-1 of assessees appeal for all the three years are dismissed. 7. As regards Ground-3 of Departmental Appeal in respect of A.Y. 2012-13, we have noticed that Ld. CIT(A) has discussed these issues in paras 11 to 13 of the impugned order. Ld. CIT(A) has reproduced the submission made by the assessee before her which can been seen in para 12 and these submission are also reproduced in the above part of this order. Ld. CIT(A) has rendered the decision in para 13. She has noted the fact that the subject matter of balance in the bank account was on account of pay-orders, the details of which have been given in the table described in para 13 of the impugned order. The assessee also furnished the copy of returns filed by such concerns along ....