JAYESH K SAMPAT, MUMBAI V. DCIT CEN CIR 46, MUMBAI

ITA 1003/MUM/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2196 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: J
• Next Hearing Date: 11-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 05-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ALOK JOHRI
• Assessee Lawyers: M M CHOKSI
• Keywords: Search and seizure; Document seized; Opportunity of being heard; Accommodation entries; Documents seized
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J, MUMBAI BEFORE SHRI C.N. PRASAD, HONBLE JUDICIAL MEMBER AND SHRI N.K. PRADHAN, HONBLE ACCOUNTANT MEMBER ITA NO. 1000 TO 1003 & 1005/MUM/2013 (ASST. YEAR : 2005-06 TO 2007-08 & 2010-11) AND ITA NOS. 924 & 928/MUM/2015 (ASST. YEAR : 2004-05 & 2009-10) SHRI JAYESH K. SAMAT, BLOCK-H, SHRI SADASHIV CHS LTD., 6 TH ROAD, SANTACRUZ (E), MUMBAI 55. VS. DCIT, CENTAL CIRCLE-46, MUMBAI - 20 PAN NO. AAGPS 2942 B (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI M.M. CHOKSI CA. DEPARTMENT BY : SHRI ALOK JOHRI - DR DATE OF HEARING : 19/10/2016. DATE OF PRONOUNCEMENT : 28/10/2016. O R D E R PER BENCH ALL THESE APPEALS ARE FILED BY THE ASSESSEE AGAINS T THE COMMON ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), FO R THE ASSESSMENT YEARS 2005-06 TO 2008-09 & 2010-11 IN SUSTAINING T HE ADDITION IN ESTIMATING THE COMMISSION INCOME AND APPEALS FOR TH E ASSESSMENT YEARS 2004-05 & 2009-10 IN SUSTAINING THE PENALTY L EVIED U/S. 271(1)(C) OF THE ACT. 2 ITA NOS. 1000-1003 & 1005/MUM/2013 ITA NOS. 924 & 928/MUM/2015 2. THE ASSESSEE HAS RAISED VARIOUS GROUNDS INCLUD ING THE GROUND AGITATING THAT ORDER PASSED BY THE ASSESSING OFFIC ER IS WITHOUT PROVIDING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE. ON MERITS, THE ASSESSEE CHALLENGED THE ORDER OF THE LD. CIT(A) IN CONFIRMING THE ADDITIONS MADE BY THE ASSESSING OFFICER AT 2% ON GR OSS DEPOSITS AS AGAINST 0.15 OFFERED BY THE ASSESSEE. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ASSESSING OFFICER PASSED ASSESSMENT ORDERS IN ALL THESE ASSESSMENT YEARS WIT HOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. THE LD. CO UNSEL FOR THE ASSESSEE SUBMITS THAT IN IDENTICAL ADDITIONS WERE MADE COMPL ETING 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 SUBM ITS THAT IN THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE HAS FILE D WRITTEN SUBMISSIONS, FURNISHED EVIDENCES, THEREFORE IT IS N OT CORRECT TO SAY THAT NO PROPER OPPORTUNITY WAS GIVEN TO THE ASSESSEE. 4. COMING TO THE MERITS OF THE CASE I.E. ADDITION M ADE AT 2% OF GROSS DEPOSITS AS AGAINST 0.15% OFFERED BY THE ASSE SSEE, THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT ON IDENTICAL FACTS, THE CO- ORDINATE BENCH HAS DECIDED THIS ISSUE HOLDING THAT INCOME BY WAY OF COMMISSION FROM THE BUSINESS OF ACCOMMODATION ENTRI ES BEING CARRIED OUT BY MUKESH CHOKSHI GROUP WAS LIABLE TO BE ASSESS ED AT 0.15% INSTEAD OF 2% APPLIED BY THE ASSESSING OFFICER. TH E 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/2013 M/S. KAYCEE SHARES BROKING PVT. LTD. 09.09.2016 2. ITA NOS. 6435 TO 6441/M/2012 M/S. MIHIR AGENCIES PVT. LTD. 06.01.2016 3 ITA NOS. 1000-1003 & 1005/MUM/2013 ITA NOS. 924 & 928/MUM/2015 3. ITA NOS. 309 & 310/M/2013 M/S. KANAK STOCK BROKERS PVT. LTD. 09.09. 2016 4. ITA NOS. 887/M/12 & 2699/M/13 M/S. GOLDSTAR FINVEST PVT. LTD. 30/11/2015 5. ITA NOS. 2700, 2702 & 2701/M/13 ALLIANCE INTERMEDIATERIES & NETWORK PVT. LTD 24/2/2016 6. ITA NOS. 6114 TO 6120/M/12 M/S. GOLDSTAR FINVEST PVT. LTD. 1.6.2016 7. ITA NOS. 6558 TO 6564/M/12 M/S. ALPHA CHEMIE TRADE AGENCIES PVT. LTD 09.09.16 8. ITA NOS. 833 TO 839/M/13 MR. MUKESH CHOKSI 4.5.2016 5. THE LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTLY S UBMITS THAT ALL THE DECISIONS RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE ARE RENDERED ON THE FACTS OF THAT PARTICULAR CASE AND THE FACTS IN THE PRESENT ASSESSEES CASE ARE NOT SIMILAR. THEREFORE HE SUBM ITS THAT THOSE DECISIONS MAY NOT BE APPLICABLE AND SHOULD NOT BE F OLLOWED. THE LD. DEPARTMENTAL REPRESENTATIVE BEFORE US SUBMITTED WRI TTEN SUBMISSIONS RUNNING INTO 17 PAGES EXPLAINING THE RATIO OF ALL T HOSE DECISIONS AND BRINGING OUT THE DISTINGUISHING FEATURES ACCORDING TO HIM AND SUBMITTED THAT SINCE THE DECISIONS ARE NOT APPLICABLE, THE SA ME MAY NOT BE FOLLOWED. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E ORDERS OF THE AUTHORITIES BELOW. THE LD. COUNSEL FOR THE ASSESSE E SUBMITTED THAT NO PROPER OPPORTUNITY WAS GIVEN AND HENCE ASSESSMENTS SHOULD BE SET ASIDE TO THE ASSESSING OFFICER FOR FRESH ADJUDICATI ON AND HE FURTHER SUBMITTED THAT THE ISSUE IN APPEAL IS SQUARELY COVE RED BY VARIOUS DECISIONS OF THE CO-ORDINATE BENCHES WHEREIN IT WAS HELD THAT THE COMMISSION INCOME FROM THE BUSINESS OF ACCOMMODATIO N ENTRIES SHOULD BE ASSESSED AT 0.15% AS AGAINST 2% ASSESSED BY THE ASSESSING OFFICER. 4 ITA NOS. 1000-1003 & 1005/MUM/2013 ITA NOS. 924 & 928/MUM/2015 TAKING NOTE OF ALL THE DECISIONS AND SUBMISSIONS OF THE LD. DEPARTMENTAL REPRESENTATIVE, WE ARE OF THE VIEW THA T THE ASSESSING OFFICER SHOULD EXAMINE ALL THESE SUBMISSIONS OF THE LD. DEPARTMENTAL REPRESENTATIVE AND THE CASE LAWS RELIED ON BY THE L D. COUNSEL FOR THE ASSESSEE AND DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW. THUS, WE RESTORE THE ASSESSMENTS TO THE FILE OF THE ASSESSIN G OFFICER TO DECIDE AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING ADEQU ATE OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2005-06 TO 2007-08 AND 2010-11 ARE ALLOWED FO R STATISTICAL PURPOSE. ITA NOS. 924 & 928/M/2015 A.YRS 2004-05 & 2009-10 8. THESE TWO APPEALS ARE FILED BY THE ASSESSEE AGAI NST THE ORDERS OF THE LD. CIT(A)-38, MUMBAI DATED14.11.2014 IN CONFI RMING THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT ON THE INCOME ASSE SSED BY THE ASSESSING OFFICER ON ESTIMATING THE COMMISSION IN P ROVIDING ACCOMMODATION ENTRIES BY ASSESSEE. 9. THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT ON IDENTICAL CIRCUMSTANCES PENALTY IS DELETED IN THE CASE OF ALP HA 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 AL PHA CHEMIE TRADE AGENCIES PVT. LTD. AND ALSO THE PRESENT ASSESSEE V IZ., JAYESH K. SAMPAT. SINCE FACTS AND CIRCUMSTANCES BEING IDENTI CAL, THE SAME MAY BE FOLLOWED. 5 ITA NOS. 1000-1003 & 1005/MUM/2013 ITA NOS. 924 & 928/MUM/2015 10. THE LD. DEPARTMENTAL REPRESENTATIVE PLACED RELI ANCE 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 S ITUATION WHERE THE COMMISSION WAS ASSESSED IN PROVIDING ACCOMMODATION ENTRIES AT 0.15% AS AGAINST 2% ASSESSED BY THE ASSESSING OFFICER, TH E PENALTIES WERE DELETED BY THE CO-ORDINATE BENCH OBSERVING AS UNDE R: 4.WE HAVE HEARD RIVAL SUBMISSIONS, PERUSED THE ORD ERS OF THE AUTHORITIES BELOW AND THE CASE-LAWS BEFORE US. ADM ITTEDLY, THE ASSESSEE PROVIDED ACCOMMODATION ENTRIES IN THIS CAS E. THE BACKDROP OF THE DISPUTE IS THAT SEARCH AND SEIZURE UNDER SECTIO N 132(1) WAS CONDUCTED IN THE CASE OF SEVERAL COMPANIES, WHOSE K INGPIN IS IDENTIFIED AS ONE MR. MUKESH CHOKSI. IT WAS FOUND IN THE COUR SE OF SEARCH THAT SUCH ENTITIES WERE PROVIDING ACCOMMODATION ENTRIES BY WAY OF SHARE TRADING/LOANS ETC. AS THE ASSESSEE HEREIN ALSO WAS COVERED IN THE SEARCH, ASSESSMENTS UNDER SECTION 143(3) READ WITH SECTION 153C OF THE ACT WERE MADE FOR ASSESSMENT YEARS 2004-05 & 2008-0 9, WHEREIN ADDITIONS WERE MADE. SUCH ASSESSMENT OF INCOME HAS BEEN FURTHER AFFIRMED BY THE LD. CIT(A). 5. DURING THE COURSE OF SEARCH PROCEEDINGS, THE REVENU E HAD NOTED THAT FOR PROVIDING ACCOMMODATION ENTRIES, THE ENTRI ES LIKE THE ASSESSEE, WHICH WERE CONTROLLED BY MR. MUKESH CHOKSI WERE EAR NING COMMISSION INCOME. IN VIEW OF SUCH MODUS OPERANDI NOTED AND T HE STATEMENTS OF MR. MUKESH CHOKSI RECORDED AT THE TIME OF SEARCH, T HE ASSESSING OFFICER NOTES THAT THE GROUP WAS EARNING COMMISSION RANGING FROM 1.5% TO 3.5% AND ACCORDINGLY HE ESTIMATED THE NET COMMISSIO N INCOME @ 2%. ACCORDINGLY, BASED ON THE TOTAL RECEIPTS REFLECTED IN THE BANK ACCOUNT, THE ASSESSING OFFICER ESTIMATED THE COMMISSION INCO ME @ 2%. THIS ACTION OF THE ASSESSING OFFICER HAS SINCE BEEN UPHE LD BY THE LD. CIT(A). 6. THE ASSESSEE PREFERRED APPEAL BEFORE THE I.T.A.T. A ND THE COORDINATE BENCH OF THIS TRIBUNAL IN QUANTUM PROCEE DINGS IN ITA NO. 6559 & 6563/MUM/2012 BY FOLLOWING VARIOUS DECISIONS IN SIMILAR FACTS, DIRECTED THE ASSESSING OFFICER TO RE-COMPUTE THE CO MMISSION INCOME AT 0.15% INSTEAD OF 2% APPLIED BY THE ASSESSING OFFICE R. THE ASSESSING OFFICER LEVIED PENALTY FOR THE ADDITION MADE ON ACC OUNT OF COMMISSION INCOME. THE MATTER WAS CARRIED OUT TO THE LD. CIT( A), WHO SUSTAINED THE PENALTY BY FOLLOWING THE CASES WHERE SIMILAR AD DITIONS WERE MADE AND IN THE CASES OF GOLDSTAR FINVEST PVT. LTD., M/S . KAYCEE SHARES BROKING PVT. LTD., M/S. MIHIR AGENCIES PVT. LTD. A ND FINALLY THE ASSESSEE FOR THE ASSESSMENT YEAR 2009-10 & 2010-11 . WE HAVE ALSO 6 ITA NOS. 1000-1003 & 1005/MUM/2013 ITA NOS. 924 & 928/MUM/2015 PERUSED THE COORDINATE BENCH DECISIONS IN THE CASE OF GOLDSTAR FINVEST PVT. LTD., M/S. KAYCEE SHARES BROKING PVT. LTD., M/ S.MIHIR AGENCIES PVT. LTD., WHEREIN THE COORDINATE BENCH DELETED THE PENA LTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT. IN AN IDENTICAL FACT S AND CIRCUMSTANCES IN THE CASE OF M/S. KAYCEE SHARES BROKING PVT. LTD., T HE COORDINATE BENCH DELETED THE PENALTY BY FOLLOWING THE DECISION IN TH E CASE OF M/S. MIHIR AGENCIES PVT. LTD. THE OPERATIVE PORTION OF THE OR DER IS REPRODUCED HEREIN UNDER:- 4. IN THE ABOVE BACKGROUND, LD. REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT SIMILAR SITUATION HAS BEE N DEALT WITH BY THE TRIBUNAL IN THE CASE OF MIHIR AGENCIES PVT. L TD., & MR. MUKESH CHOKSI (SUPRA), WHEREIN THE PENALTY LEVIED U NDER SECTION 271(1)(C) OF THE ACT HAS BEEN DELETED. LD. REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT TH E TRIBUNAL HAS DULY NOTED THAT THE DIFFERENCE BETWEEN THE ASSE SSEE AND THE REVENUE WAS PRIMARILY ON THE ESTIMATION OF INCO ME EARNED FROM PROVIDING OF ACCOMMODATION ENTRIES AND, THEREF ORE, THE SAME WOULD NOT BE EXIGIBLE FOR PENALTY UNDER SECTIO N 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 CONSIDERATION AN ACTION U/S .132 OF THE ACT WAS CARRIED OUT COVERING ALL THE GROUP ENTITIES INC LUDING THE ASSESSEE UNDER CONSIDERATION, THAT IT WAS FOUND GROUP CONCER NS WERE ENGAGED IN PROVIDING ACCOMMODATION BILLS/HAWALA ENTRIES, THAT THE ASSESSEE DID NOT DISPUTE THE SAID FACT, THAT THE AO ESTIMATED THE IN COME FROM THE ACCOMMODATION ENTRIES @ 2% OF THE TOTAL TRANSACTION S APPEARING IN THE BANK ACCOUNTS OF THE ASSESSEE, THAT THE THEN FAA CO NFIRMED THE QUANTUM ADDITION MADE BY THE AO, THAT IN THE CASE UNDER CON SIDERATION THE TRIBUNAL HAD HELD THAT COMMISSION INCOME SHOULD BE TAKEN AT THE RATE OF 0.15% (ITA /6435/MUM/2012 AY-2004-05 AND OTHER SI X APPEALS DT.6.1.16). THE UNDISPUTED FACT IS THAT THERE IS DI FFERENCE OF OPINION AS TO HOW MUCH INCOME SHOULD BE ESTIMATED FOR THE HAWALA ENTRIES-THE AO ESTIMATED AT A PARTICULAR PERCENTAGE, WHEREAS THE A SSESSEE HAD SHOWN THE INCOME AT A DIFFERENT PERCENT. THE ADDITION MAD E BY THE AO AND CONFIRMED BY THE FAA IN QUANTUM ADDITION MAY OR MAY NOT BE. BUT, LEVYING PENALTY ON THE BASIS OF AN ESTIMATED ADDITI ON COULD NOT BE HELD TO 7 ITA NOS. 1000-1003 & 1005/MUM/2013 ITA NOS. 924 & 928/MUM/2015 BE JUSTIFIED. NO AUTHORITY IS REQUIRED TO BE CITED THAT PENALTY AND ASSESSMENT PROCEEDINGS ARE SEPARATE AND DISTINCT PR OCEEDINGS AND THE QUANTUM PROCEEDINGS SHOULD NOT RESULT IN AUTOMATIC LEVY OF CONCEALMENT PENALTY. IT IS A CASE OF ESTIMATION OF INCOME BY TH E AO AND THE ASSESSEE. HERE WE WOULD LIKE TO DISCUSS TWO CASES. ONE OF THE M IS AERO TRADERS P. LTD.(322 ITR 316).IN THAT CASE THE ASSESSEE-COMPANY HAD FILED ITS RETURN OF INCOME FOR THE YEAR 1997-98 ON A NOTICE U/S.148 OF THE ACT, 1961DECLARING A LOSS OF RS. 83, 64, 468/-.THE ASSES SEE HAD, IN THE RETURN ATTACHED A NOTE STATING THAT IT WAS IMPOSSIBLE FOR IT TO SUBSTANTIATE ITS CLAIM OF LOSS BY WAY OF ANY EVIDENCE AS THE RELEVAN T RECORDS WERE SEIZED AN D WERE WITH THE POLICE AUTHORITIES. THE AO AFTER BEING UNABLE TO OBTAIN COPIES OF THE SEIZED DOCUMENTS, BASED HIS ASSESSMEN T ORDER ON THE LIMITED DOCUMENTS PROVIDED AND REJECTED THE BOOK RE SULTS DECLARED BY THE ASSESSEE. HE ESTIMATED THE INCOME OF THE ASSESSEE A T RS.61,00,000/-.HE ALSO INITIATED PENALTY PROCEEDINGS SEPARATELY. THE FAA ESTIMATED THE TOTAL INCOME OF THE ASSESSEE AT RS.1,02,980/-.THE TRIBUNA L CONFIRMED THIS ORDER. THE AO OBSERVED THAT THE PROFIT WAS ESTIMATE D AFTER REJECTION OF BOOKS OF ACCOUNT DUE TO CERTAIN DISCREPANCIES AND I MPOSED A PENALTY ON THE ASSESSEE OF RS. 36,41,003/-, ON THE GROUND THAT IT WAS A CLEAR CASE OF FURNISHING INACCURATE PARTICULARS OF INCOME. THE FA A DELETED THE PENALTY HOLDING THAT THE ADDITION MADE BY THE AO ON THE BAS IS OF ESTIMATED PROFIT COULD NOT BE A SUBJECT-MATTER OF PENALTY FOR CONCEA LMENT OF INCOME. THE TRIBUNAL CONFIRMED THIS ORDER. ON APPEAL, THE AO DI SMISSED THE APPEAL AND HELD THAT THE FINDING ARRIVED AT BY THE TRIBUNA L DID NOT WARRANT INTERFERENCE AS IT WAS PURELY A FINDING OF FACT. IN THE CASE OF DURGA KAMAL RICE MILLS(265 ITR 25)THE HONBLE CALCUTTA HIGH COU RT HAS HELD AS UNDER: WHEN TWO VIEWS ARE POSSIBLE AND WHEN NO CLEAR AND DEFINITE INFERENCE CAN BE DRAWN, IN A PENALTY PROCE EDING, PENALTY CANNOT BE IMPOSED.......IN QUANTUM PROCEEDINGS, A P ARTICULAR PROVISION MIGHT BE ATTRACTED FOR ADDITION TO THE IN COME OF THE ASSESSEE. BUT WHEN IT COMES TO THE QUESTION OF IMPO SITION OF PENALTY, THEN INDEPENDENT OF THE FINDING ARRIVED AT IN THE QUANTUM PROCEEDINGS, THE AUTHORITY HAS TO FIND CONC LUSIVELY THAT THE ASSESSEE OWNS THE CONCEALED AMOUNT. CONSIDERING THE FACT THAT TRIBUNAL HAS ADOPTED A PA RTICULAR RATE FOR ESTIMATING THE INCOME OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION, WE HOLD THAT THE FAA WAS NOT JUSTIFIED IN CONFIRMIN G THE ORDER PASSED BY 8 ITA NOS. 1000-1003 & 1005/MUM/2013 ITA NOS. 924 & 928/MUM/2015 THE AO U/S. 271(1)(C) OF THE ACT. THEREFORE, REVERS ING HIS ORDER, WE DECIDE THE EFFECTIVE GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE. 5. THE LD. DEPARTMENTAL REPRESENTATIVE HAS NOT DISPU TED THE FACTUAL MATRIX BROUGHT OUT BY THE LD. REPRESENTATIV E FOR THE ASSESSEE, THOUGH HE HAS DEFENDED THE LEVY OF PENALT Y UNDER SECTION 271(1)(C) OF THE ACT. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. IT IS ABUNDANTLY CLEAR THAT MODUS OPERANDI AND THE NATURE OF INCOME EARNED BY THE ASSESSEE, WHICH HAS BEEN SUBJECTED TO THE PENAL PROVISIONS OF SECTION 271(1)(C) OF THE ACT IN THE I NSTANT CASE, ARE SIMILAR TO THOSE CONSIDERED BY THE CO-ORDINATE BENC H IN THE CASE OF MIHIR AGENCIES PVT. LTD., & MR. MUKESH CHOKSI (SUPR A). IT IS ALSO ABUNDANTLY CLEAR THAT IN THE PRESENT CASE ALSO THE VARIATION IN THE QUANTUM OF INCOME ASSESSABLE BETWEEN ASSESSEE AND T HE REVENUE IS ON ACCOUNT OF ESTIMATION ONLY, AN IDENTI CAL SITUATION WHICH HAS BEEN CONSIDERED IN THE AFORESAID PRECEDEN TS. THEREFORE, FOLLOWING THE AFORESAID PRECEDENTS, WHICH HAVE BEEN RENDERED IN SIMILAR CIRCUMSTANCES, WE HEREBY SET-ASIDE THE ORDE R OF THE CIT(A) AND DIRECT THE ASSESSING OFFICER TO DELETE THE PENA LTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT. THUS ON THIS ASP ECT, ASSESSEE SUCCEEDS. 7. RESPECTFULLY FOLLOWING THE AFORESAID DECISION, WE D ELETE THE PENALTY LEVIED UNDER SECTION 271(1)(C) IN THESE CAS ES, AS THE FACTS AND CIRCUMSTANCES BEING IDENTICAL, AS THE COMMISSION IN COME ASSESSABLE IN THE HANDS OF THE ASSESSEE HAS BEEN ON ESTIMATE BASI S, NO PENALTY IS ATTRACTED ON THE ADDITIONS/DISALLOWANCES MADE ON ES TIMATE BASIS. RESPECTFULLY FOLLOWING THE SAID ORDER, WE DELETE T HE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT IN THESE CASES ALSO. 9 ITA NOS. 1000-1003 & 1005/MUM/2013 ITA NOS. 924 & 928/MUM/2015 12. IN THE RESULT, THE APPEALS FILED BY THE ASSESSE E FOR ASSESSMENT YEARS 2005-06 TO 2007-08 AND 2010-11 ARE ALLOWED FO R STATISTICAL PURPOSES AND THE APPEALS FOR THE ASSESSMENT YEARS 2 004-05 AND 2009- 10 ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH OCTOBER, 2016 SD/- SD/- (N.K. PRADHAN) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 28 TH OCT., 2016. RJ/- COPY TO: 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT 4. THE CIT(A) 5. THE D.R. 6. GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., MUMBAI