TaxTMI 
TaxTMI 
2022 (2) TMI 436
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....Act") on account of unaccounted commission income received by the assessee from Rockland group for providing accommodation entries. 3. A search and seizure operation u/s 132 of the Act was carried out at the business premises of Rockland group of companies as well as residential premises of the Directors of the Rockland group on 6.9.2011. A search was conducted at the premises of the assessee, Sri Ashwani Aggarwal at 302, Dhaulagiri Apartments, Ghaziabad, UP on 20.10.2011. The assessee is a Chartered Accountant and was auditor of Rockland group of companies at that time. 4. Notice u/s 153A of the Act was issued to the assessee on 13.8.2013. In compliance, the assessee filed his return of income on 11.12.2013 for the AY 2009-10 declaring t....
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....ded in the assessment order do not indicate that any commission was paid to the appellant for doing so. In any case, no evidence can be used justifiably against the assessee without offering cross- examination of the parties to the appellant, unless of course it is impossible to do so. The assessment order does not suggest that any such cross-examination was provided to the appellant; in fact this confirmed in the remand report as well. It has been mentioned in the remand report that the appellant to has not sought cross-examination before the completion of the assessment proceedings. But it would also be noticed that the A.O. has never confronted the appellant that he intends to use the statements of these three persons against him and the....
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....tries. The A .O. itself mentioned in the remand report that the entries in the documents indicate the name of the appellant and rate of commissioner at various places. Careful examination of these documents does show the mention of "Ashwani" at various places. However here too, no inference can reasonably be drawn from the entry against the word "Ashwani", that any commission has been paid to Ashwani. In fact at many places, only a mobile number (9899068722) has been entered against the name "Ashwani". As regards mention of the 2 to 3% commission in some of the seized documents it is seen that the appellant's name does not appear against any of these entries. To the extent that the seized documents concern the appellant, these documents can....
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....ration specifically puts any such doubt to rest." 6. Aggrieved, the Revenue is in appeal before the Tribunal on the following grounds:- (i) The order of Ld. CIT(A) is not correct in law and fact. (ii) On the facts and circumstances of the case, the Ld. CIT(A) has erred in deleting the addition of Rs. 2,26,89,000/- made by AO on account of unaccounted commission income. (iii) On the facts and circumstances of the case, the Ld. CIT(A) has erred in deleting the addition when the seized documents containing information about commission paid includes the name of the assessee also. 7. Ground 1: It is general in nature and does not need any adjudication. 8. Ground 2 & 3: These are related and hence are being dealt with together. The AO m....
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....ements of Sri Pramod Kumar, Sri Hari Om, Smt. Raj Rani Sharma. Furthermore, the AO in his remand report also admitted that the copies of their statements were not provided to the assessee. If that be so, the said statements cannot be relied upon for drawing adverse inference against the assessee. We are therefore of the view that no addition on account of commission allegedly received by the assessee can be made. In support, reliance is placed on the judgment of the Delhi High Court in the case of PCIT vs. Anand Kumar Jain (HUF), ITA No. 23/2021 and CM APPL. 5385/2021 pronounced on 12.02.2021 wherein the Hon'ble Court held that the statement recorded in search cannot be regarded as the incriminating document for assessment under section 153....
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....ught on record in support thereof. Similar is the observation of the Hon'ble Delhi ITAT in the case of Subhash Khattar (ITA No. 902/Del/2015) which is upheld by the Hon'ble jurisdictional Delhi High Court (ITA No.60/2017). Accordingly we uphold the findings and decision of the Ld. CIT (A). 13. In the result, the appeal of the Revenue is dismissed. Application of the Assessee under Rule 27 of the ITAT Rules 14. In this application, the assessee has raised the following grounds: (a) The Ld. CIT(A) has failed to appreciate that no incriminating documents were found in search and hence no addition can be made on estimate basis when no assessment of impugned years was pending on the date of search. (b) Without prejudice to the above, the ....