M/s. Dwarka Impex Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 1568/DEL/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7285 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 16-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIDHI SRIVASTAVA
• Assessee Lawyers: V P GUPTA SHRI ANUNAV KUMAR
• Keywords: Unexplained cash credit; Depreciation; Search and seizure; Loose papers; Source of fund; Accommodation entries; Onus to prove; Set aside
• Section: 142(1); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B : NEW DELHI) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.1565/DEL./2017 (ASSESSMENT YEAR : 2004-05) ITA NO.1566/DEL./2017 (ASSESSMENT YEAR : 2005-06) ITA NO.1567/DEL./2017 (ASSESSMENT YEAR : 2006-07) ITA NO.1568/DEL./2017 (ASSESSMENT YEAR : 2007-08) ITA NO.1569/DEL./2017 (ASSESSMENT YEAR : 2008-09) M/S. DWARKA IMPEX PVT. LTD., VS. ITO, WARD 7 (4), 13/34, W.E.A., KAROL BAGH, NEW DELHI. NEW DELHI 110 005. (PAN : AABCD6381P) ITA NO.2436/DEL./2017 (ASSESSMENT YEAR : 2004-05) ITA NO.2437/DEL./2017 (ASSESSMENT YEAR : 2005-06) ITA NO.2438/DEL./2017 (ASSESSMENT YEAR : 2006-07) ITA NO.2439/DEL./2017 (ASSESSMENT YEAR : 2007-08) ITA NO.2440/DEL./2017 (ASSESSMENT YEAR : 2008-09) ITO, WARD 7 (4), VS. M/S. DWARKA IMPEX PVT. LTD., NEW DELHI. 13/34, W.E.A., KAROL BAGH, NEW DELHI 110 005. (PAN : AABCD6381P) ITA NO.1565 TO 1569/DEL./2017 ITA NO.2436 TO 2440/DEL./2017 ITA NO.484/DEL./2015 ITA NO.6516/DEL./2015 ITA NO.6710/DEL./2016 2 ITA NO.484/DEL./2015 (ASSESSMENT YEAR : 2009-10) M/S. BHAVANI PORTFOLIO PVT. LTD., VS. ACIT, CENTRAL CIRCLE, 13/34, W.E.A., KAROL BAGH, NOIDA. NEW DELHI 110 005. (PAN : AABCB9482B) ITA NO.6516/DEL./2015 (ASSESSMENT YEAR : 2005-06) M/S. TEJASVI INVESTMENTS (P) LTD., VS. DCIT, CENTRA L CIRCLE-29, 13/34, W.E.A., KAROL BAGH, NEW DELHI. NEW DELHI 110 005. (PAN : AABCT3249G) ITA NO.6710/DEL./2016 (ASSESSMENT YEAR : 2005-06) M/S. GEEFCEE FINANCE LTD., VS. ACIT, CENTRAL CIRCL E, 13/34, W.E.A., KAROL BAGH, NOIDA. NEW DELHI 110 005. (PAN : AAACG1103H) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI V.P. GUPTA, ADVOCATE SHRI ANUNAV KUMAR, ADVOCATE REVENUE BY : MS. NIDHI SRIVASTAVA, CIT DR DATE OF HEARING : 15.04.2019 DATE OF ORDER : 26.04.2019 O R D E R PER BENCH : ITA NO.1565 TO 1569/DEL./2017 ITA NO.2436 TO 2440/DEL./2017 ITA NO.484/DEL./2015 ITA NO.6516/DEL./2015 ITA NO.6710/DEL./2016 3 PRESENT CROSS APPEALS FILED BY THE ASSESSEE AS WELL AS BY THE REVENUE ARE BEING DISPOSED OFF BY WAY OF COMPOSITE ORDER TO AVOID REPETITION OF DISCUSSION. 2. THE APPELLANT, M/S. DWARKA IMPEX PVT. LTD. (HERE INAFTER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESEN T APPEALS SOUGHT TO SET ASIDE THE IMPUGNED ORDERS ALL DATED 20.02.2017 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-3, NEW DELHI, QUA THE ASSESSMENT YEARS 2004-05, 2005-06, 2006-07, 2007-08 & 2008-09 ON THE IDENTICAL GROUNDS INTER ALIA THAT :- 1. THAT THE CIT(A) ERRED IN PASSING THE ORDER UPHO LDING THE ADDITION ON ACCOUNT OF COMMISSION TO THE EXTENT OF 2% WITHOUT EXAMINING THE FACTS OF THE CASE AND THE CONTENTIONS OF THE APPELLANT COMPANY. 2. THAT THE CIT(A) ERRED IN UPHOLDING THE ADDITION MADE BY THE AO. ON ACCOUNT OF COMMISSION TO THE EXTENT OF 2 % WITHOUT APPRECIATING THAT AS PER THE DIRECTIONS OF HON'BLE ITAT VIDE ITS ORDER DATED 18.10.2013 THE PRECEDENCE AVAILABLE IN THIS REGARD HAD TO BE CONSIDERED AND ON THAT BASIS THE RATE OF COMMISSION OUGHT TO HAVE BEEN DETERMINED AT 0.25%. 3. THAT THE CIT(A) ALSO FAILED TO APPRECIATE THAT R ATE OF COMMISSION AT 2% COULD NOT BE DETERMINED ON THE BAS IS OF ROUGH NOTINGS IN SEIZED PAPERS AS THE NOTINGS UNDER REFER ENCE COULD NOT BE RELIED UPON FOR THE REASON THAT NEITHER SAME WER E SPECIFICALLY IN REGARD TO THE RATE OF COMMISSION NOR DETAILS WER E CORROBORATED WITH OTHER MATERIAL AND IN ANY CASE THE RATES MENTI ONED THEREIN FOR A SMALL AMOUNT COULD NOT BE APPLIED TO ALL THE CASES OF THE GROUP FOR DETERMINING THE RATE OF COMMISSION ON TOT AL AMOUNT OF ACCOMMODATION ENTRIES AND NOTINGS UNDER REFERENCE W ERE ALSO NOT RELEVANT TO ALL THE ASSESSMENT YEARS. ITA NO.1565 TO 1569/DEL./2017 ITA NO.2436 TO 2440/DEL./2017 ITA NO.484/DEL./2015 ITA NO.6516/DEL./2015 ITA NO.6710/DEL./2016 4 3. THE APPELLANT, ITO, WARD 7 (4), NEW DELHI (HEREI NAFTER REFERRED TO AS THE REVENUE) BY FILING THE PRESENT APPEALS SOUGHT TO SET ASIDE THE IMPUGNED ORDERS ALL DATED 20.02.2017 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-3, NEW DELHI, QUA THE ASSESSMENT YEARS 2004-05, 2005-06, 2006-07, 2007-08 & 2008-09 ON THE IDENTICAL GROUNDS, EXCEPT THE DIFFERENCE IN ADDITION, INTER ALIA THAT :- 1. LD COMMISSIONER OF INCOME-TAX (APPEALS) ERRED I N LAW AND ON FACTS OF THE CASE IN HOLDING THAT THE JURISD ICTION OF THE ASSESSING OFFICER WHILE PASSING THE FRESH ORDER PUR SUANT TO THE ORDER OF THE IT AT WAS RESTRICTED TO DETERMINATION OF COMMISSION INCOME AS AGAINST THE ADDITION MADE IN THE ORIGINAL ORDER OF ASSESSMENT WHEN THE ITAT HAS SET ASIDE THE ASSESSME NT TO THE FILE OF THE AO FOR FRESH ASSESSMENT IN TERMS OF DIRECTIO NS CONTAINED IN PARA 23 OF ITS ORDER AND IN ACCORDANCE WITH LAW. 2. LD COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION M ADE BY AO U/S 68 OF THE IT ACT AMOUNTING TO RS.1,64,01,670/-, RS. 93,51,252/-, RS.36,00,386/-, RS.3,01,56,000/- & RS.50,00,000/- F OR ASSESSMENT YEARS 2004-05, 2005-06, 2006-07, 2007-08 & 2008-09 RESPECTIVELY. 3. LD COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN LAW AND ON FACTS OF THE CASE IN REDUCING THE RATE OF CO MMISSION INCOME FROM 2.25% AS APPLIED BY THE AO TO 2.0%'. 4. THE APPELLANT, M/S. BHAVANI PORTFOLIO PVT. LTD. (HEREINAFTER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESEN T APPEALS SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 13.10.2014 PASSE D BY THE ITA NO.1565 TO 1569/DEL./2017 ITA NO.2436 TO 2440/DEL./2017 ITA NO.484/DEL./2015 ITA NO.6516/DEL./2015 ITA NO.6710/DEL./2016 5 COMMISSIONER OF INCOME-TAX (APPEALS), NOIDA, QUA TH E ASSESSMENT YEAR 2009-10 ON THE GROUNDS INTER ALIA THAT :- 1. THAT THE CIT(A) ERRED IN UPHOLDING THE ADDITIO N MADE BY ASSESSING OFFICER OF RS.2,27,79,793/- ON ACCOUNT OF COMMISSION INCOME CALCULATED @ 2.25% ON TOTAL OF ALL CREDIT EN TRIES IN THE BANK ACCOUNT, WITHOUT CORRECTLY APPRECIATING THE FA CTS OF THE CASE AND ALSO WITHOUT PROPERLY APPRECIATING AND FOLLOWIN G THE ORDER AND DIRECTION OF HON'BLE ITAT VIDE ITS ORDER DATED 18.10.2013. 2. THAT THE CIT(A) FAILED TO APPRECIATE THAT THE AP PELLANT COMPANY IS PART OF TARUN GOYAL GROUP AND, THEREFORE , ALL INTER- GROUP ENTRIES IN THE BANK ACCOUNT OUGHT TO HAVE BEE N EXCLUDED AS PER THE DIRECTION OF HON'BLE ITAT. FURTHER, ALL THE ENTRIES WHICH HAD BEEN EXPLAINED BY THE APPELLANT SHOULD AL SO HAVE BEEN EXCLUDED AND ONLY IN RESPECT OF BALANCE ENTRIES, CO MMISSION INCOME COULD BE CONSIDERED. 3. THAT THE CIT(A) ALSO ERRED IN UPHOLDING THE COMM ISSION INCOME @ 2.25% DISREGARDING THE DIRECTION OF HON'BL E ITAT TO APPLY THE RATE CONSIDERING THE PRECEDENCE IN THIS R EGARD, FOR WHICH NECESSARY EVIDENCE HAD ALSO BEEN PROVIDED BEF ORE CIT(A). 4. THAT THE CIT(A) ALSO ERRED IN OBSERVING IN THE O RDER THAT THE APPELLANT HAD ONLY SUBMITTED A TABULAR CHART GI VING SUMMARY OF CREDIT ENTRIES ALONGWITH AFFIDAVIT OF DIRECTORS WITHOUT ADDUCING NECESSARY DETAILS AND RELEVANT DOCUMENTARY EVIDENCE S IN RESPECT OF CREDIT ENTRIES. THE APPELLANT WAS WILLING TO SUB MIT DOCUMENTARY EVIDENCES IN SUPPORT OF ALL BANK ENTRIE S. IT WAS ONLY ON THE SUGGESTION OF CIT(A) THAT SAME WERE NOT SUBM ITTED. THE CIT(A) HAD EXPRESSED HIS VIEW THAT IT WOULD NOT BE POSSIBLE FOR HIM TO EXAMINE THE VOLUMINOUS RECORD AND, THEREFORE , SAME COULD BE SUBMITTED BEFORE ASSESSING OFFICER, PURSUA NT TO HIS DIRECTIONS. 5. THE APPELLANT, M/S. TEJASVI INVESTMENTS (P) LTD. (HEREINAFTER REFERRED TO AS THE ASSESSEE) BY FILI NG THE PRESENT APPEALS SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATE D 09.10.2015 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)- 30, NEW ITA NO.1565 TO 1569/DEL./2017 ITA NO.2436 TO 2440/DEL./2017 ITA NO.484/DEL./2015 ITA NO.6516/DEL./2015 ITA NO.6710/DEL./2016 6 DELHI QUA THE ASSESSMENT YEAR 2005-06 ON THE GROUN DS INTER ALIA THAT :- 1. THAT THE CIT(A) ERRED IN UPHOLDING THE ORDER O F THE ASSESSING OFFICER DETERMINING THE COMMISSION INCOME @ 2% ON THE AMOUNT REPRESENTING THE ENTRIES GIVEN TO OUTSID E PARTIES WITHOUT CORRECTLY APPRECIATING THE FACTS OF THE CAS E AND FOLLOWING THE DIRECTIONS OF HON'BLE ITAT VIDE ITS ORDER DATED 18.10.2013. 2. THAT THE CIT (A) ERRED IN UPHOLDING THE COMMISSI ON INCOME @ 2% DISREGARDING THE DIRECTIONS OF HON'BLE ITAT TO APPLY THE RATE CONSIDERING THE PRECEDENCE AVAILABLE IN THIS REGARD, FOR WHICH NECESSARY EVIDENCE HAD BEEN DULY SUBMITTED BEFORE THE CIT(A). 3. THAT THE CIT(A) ERRED IN TAKING A VIEW THAT PREC EDENCE AVAILABLE IN THE FORM OF APPELLATE / ASSESSMENT ORD ERS IN OTHER CASES COULD NOT BE CONSIDERED FOR THE PURPOSE OF TA KING THE RATE OF COMMISSION INSPITE OF THE FACT THAT THE HON'BLE TRIBUNAL HAD DIRECTED TO DETERMINE THE RATE OF COMMISSION TAKING INTO CONSIDERATION THE PRECEDENCE AVAILABLE IN THIS REGA RD. 4. THAT THE CIT(A) ALSO ERRED IN UPHOLDING THE ORDE R OF ASSESSING OFFICER DETERMINING COMMISSION @ 2% ON TH E BASIS OF ROUGH NOTINGS IN SEIZED PAPERS WITHOUT APPRECIATING THAT THE NOTINGS UNDER REFERENCE COULD NOT BE RELIED UPON AS NEITHER SAME WERE SPECIFICALLY IN REGARD TO RATE OF COMMISSION N OR DETAILS WERE CORROBORATED WITH OTHER MATERIAL AND IN ANY CASE TH E RATES MENTIONED THEREIN FOR A SMALL AMOUNT COULD NOT BE A PPLIED IN ALL THE CASES OF THE GROUP FOR DETERMINING THE RATE OF COMMISSION ON TOTAL AMOUNT OF ACCOMMODATION ENTRIES AND THE NOTIN GS UNDER REFERENCE WERE ALSO NOT RELEVANT TO ALL THE ASSESSM ENT YEARS. 6. THE APPELLANT, M/S. GEEFCEE FINANCE LTD. (HEREIN AFTER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESEN T APPEALS SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 15.12.2016 PASSE D BY THE COMMISSIONER OF INCOME-TAX (APPEALS), NOIDA QUA THE ASSESSMENT YEAR 2005-06 ON THE GROUNDS INTER ALIA THAT :- ITA NO.1565 TO 1569/DEL./2017 ITA NO.2436 TO 2440/DEL./2017 ITA NO.484/DEL./2015 ITA NO.6516/DEL./2015 ITA NO.6710/DEL./2016 7 1. THAT THE CIT(A) ERRED IN UPHOLDING THE ADDITIO N MADE BY ASSESSING OFFICER ON ACCOUNT OF COMMISSION INCOME C ALCULATED @ 2.25% ON TOTAL OF ALL CREDIT ENTRIES IN THE BANK ACCOUNT, WITHOUT CORRECTLY APPRECIATING THE FACTS OF THE CAS E AND ALSO WITHOUT PROPERLY APPRECIATING AND FOLLOWING THE ORD ER AND DIRECTION OF HON'BLE ITAT VIDE ITS ORDER DATED 18.1 0.2013. 2. THAT THE CIT(A) FAILED TO APPRECIATE THAT THE AP PELLANT COMPANY IS PART OF TARUN GOYAL GROUP AND, THEREFORE , ALL INTER- GROUP ENTRIES IN THE BANK ACCOUNT OUGHT TO HAVE BEE N EXCLUDED AS PER THE DIRECTION OF HON'BLE ITA T. FURTHER, ALL THE ENTRIES WHICH HAD BEEN EXPLAINED BY THE APPELLANT SHOULD AL SO HAVE BEEN EXCLUDED AND ONLY IN RESPECT OF BALANCE ENTRIES, CO MMISSION INCOME COULD BE CONSIDERED. 3. THAT THE CIT(A) ALSO ERRED IN UPHOLDING THE COMM ISSION INCOME @ 2.25% DISREGARDING THE DIRECTION OF HON'BL E ITAT TO APPLY THE RATE CONSIDERING THE PRECEDENCE IN THIS R EGARD, FOR WHICH NECESSARY EVIDENCE HAD ALSO BEEN PROVIDED BEF ORE CIT(A). 4. THAT THE CIT(A) ALSO ERRED IN OBSERVING IN THE O RDER THAT THE APPELLANT HAD ONLY SUBMITTED A TABULAR CHART GI VING SUMMARY OF CREDIT ENTRIES ALONGWITH AFFIDAVIT OF DIRECTORS WITHOUT ADDUCING NECESSARY DETAILS AND RELEVANT DOCUMENTARY EVIDENCE S IN RESPECT OF CREDIT ENTRIES. HE FAILED TO APPRECIATE THAT THE APPELLANT SUBMITTED A CHART GIVING NATURE OF EACH OF THE CRED IT ENTRIES AND THE DETAILS SO GIVEN HAVE BEEN DULY SUPPORTED BY TH E AFFIDAVIT OF THE DIRECTOR AND, ACCORDINGLY, THE APPELLANT HAD DI SCHARGED ITS OBLIGATION SUBMITTING OF SUPPORTING DOCUMENTARY EVI DENCE IN RESPECT OF EACH OF THE CREDIT ENTRIES WOULD HAVE BE EN QUITE VOLUMINOUS AND, ACCORDINGLY, NEITHER IT WAS WARRANT ED TO SUBMIT THE SAME NOR, CIT(A) HAD SPECIFICALLY REQUIRED THE APPELLANT COMPANY TO SUBMIT SUPPORTING DOCUMENTS IN RESPECT O F EACH OF THE ENTRIES. THEREFORE, HE COULD NOT TAKE A VIEW TH AT THE APPELLANT HAD NOT DISCHARGED ITS BURDEN OF EXPLAINING THE NAT URE OF CREDIT ENTRIES IN ITS BOOKS OF ACCOUNT. 7. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : THIS IS SECOND ROUND OF L ITIGATION. DURING THE SEARCH AND SEIZURE OPERATION CARRIED OUT AT THE BUSINESS PREMISES OF TARUN GOYAL, WHICH IS INTO THE ACTIVITI ES OF INVESTMENT ITA NO.1565 TO 1569/DEL./2017 ITA NO.2436 TO 2440/DEL./2017 ITA NO.484/DEL./2015 ITA NO.6516/DEL./2015 ITA NO.6710/DEL./2016 8 IN SHARES AT PREMIUM ON EXORBITANT PRICES THROUGH T HEIR NON- DESCRIPT COMPANIES, CERTAIN DOCUMENTS, LOOSE PAPERS AND OTHER MATERIAL WERE FOUND/SEIZED AND CONSEQUENTLY ASSESSM ENT WAS COMPLETED UNDER SECTION 153C OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT). 8. ASSESSEE HAD CHALLENGED ASSESSMENT ORDERS BEFORE THE LD. CIT (A) WHO HAS CONFIRMED THE ASSESSMENT ORDERS THA T THE RATE OF COMMISSION CHARGES ADOPTED BY THE AO IS JUSTIFIED. THEREAFTER, ASSESSEE HAD CHALLENGED ORDER PASSED BY THE LD. CIT (A) BEFORE THE TRIBUNAL WHO HAD RESTORED THE MATTER BACK TO AO QUA AYS 2004-05 TO 2008-9 FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. 9. AO ISSUED NOTICE UNDER SECTION 143(2) AND 142(1) CALLING UPON THE ASSESSEE TO FURNISH DETAILS AS UNDER :- (I) FURNISH THE COPY OF ITR, BALANCE SHEET, TAX AUD IT REPORT, COMPUTATION OF INCOME, ALL ANNEXURES AND NOTES OF A CCOUNTS; (II) FURNISH THE COPY OF ALL STATEMENTS OF TARUN GO YAL RECORDED ON OATH DURING THE COURSE OF SEARCH AND SE IZURE OPERATION AS WELL AS POST OPERATION PERIOD, IF ANY. (III) THE HONBLE ITAT HAS SET ASIDE THE ISSUE TO A .O. TO EXAMINE THE CHAIN OF TRANSACTIONS, THEY LAYERING IN DULGED BY ASSESSEE, THE CALCULATION OF PEAK UNEXPLAINED CREDI T ETC. AND TO PROVE EACH CREDIT IN THE BOOKS OF EACH ASSESSEE. I N THIS RESPECT BURDEN OF PROOF LIES ON YOU TO PROVE EACH AND EVERY CREDITED AND DEBITED ENTRY FROM ITS ORIGIN. HENCE, YOU ARE REQUE STED TO SUBMIT DETAILS OF TRANSACTIONS/CHAIN OF ENTRIES (EACH AND EVERY CREDIT AND DEBIT) OF DIFFERENT PARTIES FROM ITS ORIGIN. ITA NO.1565 TO 1569/DEL./2017 ITA NO.2436 TO 2440/DEL./2017 ITA NO.484/DEL./2015 ITA NO.6516/DEL./2015 ITA NO.6710/DEL./2016 9 11. FROM THE DETAIL FURNISHED BY THE ASSESSEE VIDE REPLY DATED 13.02.2015, AO NOTICED THAT IN THE ASSESSEES BANK ACCOUNT, AMOUNT OF RS.1,64,01,670/-, RS.93,51,252/-, RS.36,0 0,386/-, RS.3,01,56,000/- & RS.50,00,000/- FOR ASSESSMENT YE ARS 2004-05, 2005-06, 2006-07, 2007-08 & 2008-09 RESPECTIVELY RE MAINED UNVERIFIABLE/UNEXPLAINED CASH CREDIT AND ADDED TO T HE INCOME OF THE ASSESSEE UNDER SECTION 68 OF THE ACT AND THEREB Y MADE ADDITION THEREOF TO THE INCOME OF THE ASSESSEE. AO ALSO MAD E ADDITION OF RS.2,08,125/-, RS.1,56,373/-, RS.58,500/-, RS.2,47, 500/- & RS.56,250/- FOR ASSESSMENT YEARS 2004-05, 2005-06, 2006-07, 2007-08 & 2008-09 RESPECTIVELY ON ACCOUNT OF COMMIS SION CHARGED AS PER ORIGINAL ASSESSMENT ORDER @ 2.25% ON THE BASIS OF ANNEXURE A-12 PAGE 13. 12. ASSESSEE CARRIED THE MATTER BY WAY OF APPEALS B EFORE THE LD. CIT (A) WHO HAS PARTLY ALLOWED THE APPEALS. FEELIN G AGGRIEVED, THE ASSESSEE AS WELL AS REVENUE HAVE COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEALS. 13. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE S OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ITA NO.1565 TO 1569/DEL./2017 ITA NO.2436 TO 2440/DEL./2017 ITA NO.484/DEL./2015 ITA NO.6516/DEL./2015 ITA NO.6710/DEL./2016 10 ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 14. UNDISPUTEDLY, IN THE FIRST ROUND OF APPEALS BEF ORE THE TRIBUNAL, THE ONLY ISSUE TO BE DECIDED WAS RELATING TO COMMISSION INCOME AND NO ISSUE WITH REGARD TO THE ADDITION UND ER SECTION 68 OF THE ACT WAS THERE. IT IS ALSO NOT IN DISPUTE THAT IN THE FIRST ROUND OF LITIGATION, AO AS WELL AS LD. CIT (A) HAVE ADJUDICA TED UPON THE ADDITION MADE ON ACCOUNT OF COMMISSION INCOME ONLY AS THIS FACT IS EVIDENT FROM ASSESSMENT ORDERS FOR AYS 2004-05 T O 2008-09, AVAILABLE AT PAGES 38 TO 97 OF THE PAPER BOOK. IT IS ALSO NOT IN DISPUTE THAT THE LD. CIT (A) HAS UPHELD THE ADDITIO N ON ACCOUNT OF COMMISSION BY REDUCING THE RATE OF COMMISSION FROM 2.25% TO 2% WHICH IS UNDER CHALLENGE BY THE ASSESSEE AS WELL AS BY THE REVENUE. 15. IN THE BACKDROP OF THE AFORESAID FACTS AND CIRC UMSTANCES OF THE CASE, ORDERS PASSED BY THE LOWER REVENUE AUTHOR ITIES IN THE FIRST ROUND AS WELL AS SECOND ROUND OF LITIGATION AND CAS E LAWS RELIED UPON, THE FIRST QUESTION ARISES FOR DETERMINATION I N THIS CASE IS :- AS TO WHETHER IN THE SECOND ROUND OF LITIGATION PURSUANT TO THE REMAND MADE BY THE TRIBUNAL, AO IS EMPOWERED TO MAKE FURTHER ADDITION ON ACCOUNT OF CREDIT ENTRIES APPEARING IN THE BANK STATEMENT UNDE R SECTION 68 OF THE ACT WHICH WAS NOT THE SUBJECT MAT TER OF THE FIRST ROUND OF LITIGATION? ITA NO.1565 TO 1569/DEL./2017 ITA NO.2436 TO 2440/DEL./2017 ITA NO.484/DEL./2015 ITA NO.6516/DEL./2015 ITA NO.6710/DEL./2016 11 16. PERUSAL OF ORIGINAL ASSESSMENT ORDERS QUA AYS 2 004-05 TO 2008-09, AVAILABLE AT PAGES 38 TO 97 OF THE PAPER B OOK, GOES TO PROVE THAT THE ONLY ADDITION MADE BY THE AO IS ON A CCOUNT OF COMMISSION INCOME @ 2.25% ON ACCOMMODATION ENTRIES PROVIDED BY THE ASSESSEE COMPANY AND NO ADDITION UNDER SECTI ON 68 OF THE ACT IS THERE. FROM THE COPY OF FORM NO.36 FILED BE FORE THE TRIBUNAL IN ALL THE APPEALS FOR AYS 2004-05 TO 2008 -09 IN THE FIRST ROUND OF APPEAL AVAILABLE AT PAGES 33 TO 37, IT IS AGAIN PROVED THAT NO GROUND AS TO THE ADDITION MADE UNDER SECTION 68 OF THE ACT HAS BEEN RAISED BY THE ASSESSEE. SIMILARLY, APPEALS BE FORE THE LD. CIT (A) AS WELL AS THE TRIBUNAL WERE QUA ISSUE OF COMMI SSION INCOME ONLY. SO, IT IS PROVED ON RECORD THAT AO IN THE REM AND PROCEEDINGS HAS MADE FRESH INVESTIGATION AND PROCEEDED TO MAKE THE ADDITION UNDER SECTION 68 OF THE ACT. 17. IT IS SETTLED PRINCIPLE OF LAW THAT ON REMAND O F THE PROCEEDINGS BY THE TRIBUNAL TO THE AO, NO NEW SOURC E OF INCOME CAN BE INTRODUCED SO AS TO ENHANCE THE ASSESSMENT B Y THE AO AND THE AO CAN ENHANCE THE INCOME ONLY QUA OLD SOURCES OF INCOME WHICH WAS SUBJECT MATTER OF THE APPEAL BEFORE THE T RIBUNAL. ITA NO.1565 TO 1569/DEL./2017 ITA NO.2436 TO 2440/DEL./2017 ITA NO.484/DEL./2015 ITA NO.6516/DEL./2015 ITA NO.6710/DEL./2016 12 RELIANCE IN THIS REGARD IS PLACED UPON THE DECISION RENDERED BY HONBLE PUNJAB AND HARYANA HIGH COURT IN KARTAR SINGH VS. CIT (1978) 111 ITR 184 (P&H) . 18. HONBLE SUPREME COURT IN CASE OF MCORP GLOBAL P. LTD. VS. CIT (2009) 309 ITR 434 (SC) ALSO DECIDED THE IDENTICAL ISSUE IN FAVOUR OF THE ASSESSEE BY RETURNING FOLLOWING FINDI NGS :- 6. IN THE CASE OF HUKUMCHAND MILLS LTD. V. CIT REP ORTED IN [1967] 63 ITR 232 THIS COURT HAS HELD THAT UNDER SE CTION 33(4) OF THE INCOME-TAX ACT, 1922 (EQUIVALENT TO SECTION 254 (1) OF THE 1961 ACT), THE TRIBUNAL WAS NOT AUTHORIZED TO TAKE BACK THE BENEFIT GRANTED TO THE ASSESSEE BY THE ASSESSING OF FICER. THE TRIBUNAL HAS NO POWER TO ENHANCE THE ASSESSMENT. AP PLYING THE RATIO OF THE SAID JUDGMENT TO THE PRESENT CASE, WE ARE OF THE VIEW THAT, IN THIS CASE, THE ASSESSING OFFICER HAD GRANT ED DEPRECIATION IN RESPECT OF 42,000 BOTTLES OUT OF THE TOTAL NUMBE R OF BOTTLES (5,46,000). BY REASON OF THE IMPUGNED JUDGMENT, THA T BENEFIT IS SOUGHT TO BE TAKEN AWAY BY THE DEPARTMENT, WHICH IS NOT PERMISSIBLE IN LAW. THIS IS THE INFIRMITY IN THE IM PUGNED JUDGMENT OF THE HIGH COURT AND THE TRIBUNAL. 7. THERE IS ONE MORE ASPECT WHICH NEEDS TO BE MENTI ONED. ACCORDING TO THE IMPUGNED JUDGMENTS OF THE HIGH COU RT AND THE TRIBUNAL, THE TRANSACTION DATED FEBRUARY 15, 1991, WAS A FINANCIAL TRANSACTION AND NOT A LEASE. IF DEPRECIAT ION IS TO BE GRANTED FOR 42,000 BOTTLES UNDER THE TRANSACTION DA TED FEBRUARY 15, 1991, THEN IT CANNOT BE SAID THAT 42,000 BOTTLE S CAME WITHIN THE LEASE DATED FEBRUARY 15, 1991, AND THE BALANCE CAME WITHIN THE SO-CALLED FINANCIAL ARRANGEMENT. IN THE CIRCUMS TANCES, WE HOLD THAT THE BENEFIT OF DEPRECIATION GIVEN TO THE ASSESSEE BY THE ASSESSING OFFICER IN RESPECT OF 42,000 BOTTLES OUT OF 5,46,000 BOTTLES CANNOT BE WITHDRAWN BY THE DEPARTMENT AND T O THAT EXTENT ALONE THE ASSESSEE SUCCEEDS IN THIS CIVIL APPEAL. L ASTLY, AS STATED ABOVE, IN THIS CASE THE COMMISSIONER OF INCOME-TAX (APPEALS) HAD REMITTED THE MATTER TO THE ASSESSING OFFICER WH O ON REMAND CAME TO THE CONCLUSION THAT ALL 5,46,000 BOTTLES ST OOD SOLD BEFORE MARCH 31, 1991. THIS FINDING OF FACT HAS BECOME FIN AL. IT HAS NOT BEEN CHALLENGED. HENCE, THE DEPARTMENT HAS ERRED IN DISALLOWING THE DEPRECIATION OF RS. 18,04,572. ITA NO.1565 TO 1569/DEL./2017 ITA NO.2436 TO 2440/DEL./2017 ITA NO.484/DEL./2015 ITA NO.6516/DEL./2015 ITA NO.6710/DEL./2016 13 19. SIMILARLY, HONBLE GUJARAT HIGH COURT IN CASE O F DCIT VS. SURAT ELECTRICITY CO. LTD. (2011) 337 ITR 271 (GU J.) DECIDED THE IDENTICAL ISSUE IN FAVOUR OF THE ASSESSEE BY RETURN ING FOLLOWING FINDINGS :- THUS, THIS COURT IN THE ABOVE QUOTED DECISION HAS HELD THAT THE SET ASIDE OF ASSESSMENT MADE BY THE APPELLATE AUTHO RITY IS ALWAYS IN ACCORDANCE WITH THE DIRECTIONS GIVEN BY THE APPE LLATE AUTHORITY FOR MAKING A FRESH ASSESSMENT. BUT, THE MOST MATERI AL PART OF THE PROVISION IS THE OPENING PORTION WHICH STIPULATES ' IN AN APPEAL AGAINST AN ORDER OF ASSESSMENT'. IN OTHER WORDS, TH E ENTIRE GAMUT OF POWERS WHICH ARE AVAILABLE TO THE APPELLAT E AUTHORITY IS GOVERNED WITHIN THE FOUR CORNERS OF THE SUBJECT-MAT TER OF APPEAL. THE SUBJECT-MATTER OF APPEAL IS THE ASSESSMENT OF I NCOME WHICH FORMS PART OF THE ORDER OF ASSESSMENT IN LIGHT OF T HE RETURN OF INCOME FILED BY AN ASSESSEE. EXAMINING THE FACTS OF THE PRESENT CASE IN THE LIGHT OF THE AFORESAID DECISION, IT IS APPARENT THAT THE AO WAS REQUIRED TO MAKE A FRESH ASSESSMENT IN ACCOR DANCE WITH THE DIRECTIONS GIVEN BY THE CIT(A) AND COULD NOT HA VE TRAVELLED BEYOND THE SAME. THE IMPUGNED ORDER OF THE TRIBUNAL IS, THEREFORE, IN CONSONANCE WITH THE AFORESAID DECISIO N OF THIS HIGH COURT AND DOES NOT WARRANT ANY INTERFERENCE. 20. COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF RADAN MULTIMEDIA LTD. VS. ACIT IN ITA NO.500/MUM/2005 DAT ED 06.01.2016 ALSO DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE B Y RETURNING FOLLOWING FINDINGS :- 18. GROUND NO 11 IS IN RESPECT OF REQUEST FOR ENH ANCEMENT TO CIT(A) TO ENHANCE THE INCOME OF THE ASSESSEE BY RS. 59,70,000/- ON ACCOUNT OF SHORTAGE OF BINOLA BAGS. THE DR SUBMI TTED THAT CIT(A) SHOULD HAVE ENHANCE INCOME ON ACCOUNT TO BIN OLA BAGS. THE COUNSEL SUBMITTED THAT THIS ISSUE WAS NEVER SUB JECT MATTER OF APPEAL BEFORE ITAT HENCE CIT (A) HAS RIGHTLY REFUSE D TO ENTERTAIN THE FRESH ISSUE RAISED BY AO IN REMAND PR OCEEDINGS. AFTER HEARING BOTH THE PARTIES WE ARE OF THE VIEW T HAT THE CIT(A) IS RIGHT IN HOLDING THAT WHAT WAS NOT THE ISSUE BEF ORE ITAT ITA NO.1565 TO 1569/DEL./2017 ITA NO.2436 TO 2440/DEL./2017 ITA NO.484/DEL./2015 ITA NO.6516/DEL./2015 ITA NO.6710/DEL./2016 14 CANNOT BE RAISED BY THE AO IN REMAND PROCEEDINGS. T HE GROUND NO 11 IS DISMISSED. 21. SO, IN VIEW OF THE MATTER, WE ARE OF THE CONSID ERED VIEW THAT THE AO HAS EXCEEDED HIS POWERS DURING REMAND PROCEE DINGS, MADE BY THE TRIBUNAL BY MAKING ADDITION UNDER SECTION 68 OF THE ACT ON ACCOUNT OF CREDIT ENTRIES APPEARING IN THE BANK STA TEMENT AND AS SUCH, THE ADDITION MADE BY THE AO IS NOT SUSTAINABL E, HENCE THE LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION. CONSEQUENT LY, QUESTION FRAMED IS ANSWERED IN THE NEGATIVE. 22. SO FAR AS QUESTION OF APPLYING THE RATE OF COMM ISSION AT THE RATE OF 2.25 % BY THE AO AND REDUCED TO 2% BY THE L D. CIT(A) IS CONCERNED, THIS ISSUE HAS ALREADY BEEN DECIDED BY T HE COORDINATE BENCH OF THE TRIBUNAL IN THE GROUP CASES OF TARUN GOYAL VIDE ORDER DATED 23.01.2019 PASSED IN ITA NO.6507/DEL/20 15 & ORS., THEREBY AO HAS BEEN DIRECTED TO ADOPT THE RATE OF C OMMISSION @ 0.50% OR 50 PAISE AND COMPUTED THE PROFIT ACCORDING LY BY RETURNING FOLLOWING FINDINGS :- 14. THE LD. COUNSEL FOR THE ASSESSEE ALSO RELIED HEAVILY ON VARIOUS DECISIONS OF THE CO-ORDINATE BENCH WHEREIN THE TRIBUNAL HAS ADOPTED RATE RANGING FROM 0.15 PAISE TO 0.50 PA ISE I.E 0.15% TO 0.50%. ITA NO.1565 TO 1569/DEL./2017 ITA NO.2436 TO 2440/DEL./2017 ITA NO.484/DEL./2015 ITA NO.6516/DEL./2015 ITA NO.6710/DEL./2016 15 15. AS MENTIONED ELSEWHERE, IN SUCH ILLEGAL ACTIVI TIES, THERE CANNOT BE ANY PRECEDENCE AND THE RATE VARIES FROM F ACTS OF EACH CASE. 16. TO PUT AN END TO THE LITIGATION AND IN THE INT EREST OF JUSTICE AND FAIR PLAY, IN OUR CONSIDERED OPINION, 0 .50 PAISE OR 0.50% SHOULD BE TAKEN AS THE REASONABLE RATE OF PROFIT/COMMISSION IN SUCH CLANDESTINE ACTIVITIES. W E, ACCORDINGLY, DIRECT THE ASSESSING OFFICERS TO ADOPT 0.50% OR 0.5 0 PAISE AND COMPUTE THE PROFIT ACCORDINGLY. 23. FOLLOWING THE DECISION RENDERED BY THE COORDINA TE BENCH OF THE TRIBUNAL, AO IS DIRECTED TO ADOPT THE DECISION OF GROUP CASES OF TARUN GOYAL (SUPRA) AND COMPUTED THE PROFIT ACCO RDINGLY IN THESE CASES ALSO. 24. SO FAR AS APPEALS BEARING ITA NOS.484/DEL./2015 , 6516/DEL./2015 & 6710/DEL./2016 FILED BY THE ASSESS EES ARE CONCERNED, ONE OF THE ISSUE IS AS TO UPHOLDING THE COMMISSION INCOME @ 2.25% IN CASE OF BHAWANI PORTFOLIO PVT. LT D. AND GEEFCEE FINANCE LTD. AND @ 2% IN CASE OF TEJASVI IN VESTMENTS (P) LTD. BY THE LD. CIT (A). THIS ISSUE IS ALSO DECIDED IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE DECISION RENDERED BY TRIB UNAL VIDE ORDER DATED 23.01.2019 (SUPRA) AND THE AO IS DIRECTED TO ADOPT THE DECISION OF GROUP CASES OF TARUN GOYAL (SUPRA) AND COMPUTED THE PROFIT ACCORDINGLY IN THESE CASES ALSO. ITA NO.1565 TO 1569/DEL./2017 ITA NO.2436 TO 2440/DEL./2017 ITA NO.484/DEL./2015 ITA NO.6516/DEL./2015 ITA NO.6710/DEL./2016 16 25. SECOND ISSUE IN CASE OF BHAWANI PORTFOLIO PVT. LTD. AND GEEFCEE FINANCE LTD., WHICH ARE OF NOIDA CHARGE, IS AS TO WHETHER DETERMINATION OF COMMISSION INCOME WITH REFERENCE T O THE ENTRIES GIVEN OUTSIDE THE GROUP. IT IS THE CASE OF THE ASS ESSEE THAT THE AO HAS CALCULATED THE COMMISSION INCOME @ 2.25% ON THE TOTAL OF ALL CREDIT ENTRIES IN THE BANK ACCOUNT WITHOUT APPRECIA TING THE FACT THAT ALL THE ENTRIES HAVE BEEN DULY EXPLAINED BY THE ASS ESSEE AND INTER- GROUP ENTRIES WERE TO BE EXCLUDED. PERUSAL OF REMAN D ORDER DATED 18.10.2013 PASSED BY THE TRIBUNAL WAS REQUIRED TO E XCLUDE THE INTER-GROUP ENTRIES IN THE BANK ACCOUNT IN ORDER TO CALCULATE THE COMMISSION INCOME. SO, THE AO IS DIRECTED TO EXCLU DE ALL INTER- GROUP ENTRIES IN THE BANK ACCOUNT AS PER DIRECTIONS OF THE TRIBUNAL AND THEN CALCULATE THE COMMISSION INCOME @ 0.50%. CONSEQUENTLY, THIS ISSUE IN THE CASE OF BHAWANI POR TFOLIO PVT. LTD. AND GEEFCEE FINANCE LTD. IS DETERMINED IN FAVOUR OF ASSESSEE FOR STATISTICAL PURPOSES. 26. RESULTANTLY, ITA NOS.1565/DEL./2017, 1566/DEL./ 2017, 1567/DEL./2017, 1568/DEL./2017 & 1569/DEL./2017 FO R ASSESSMENT YEARS 2004-05, 2005-06, 2006-07, 2007-08 & 2008-09 RESPECTIVELY FILED BY THE ASSESSEE, M/S. DWARKA IMP EX PVT. LTD., ITA NO.1565 TO 1569/DEL./2017 ITA NO.2436 TO 2440/DEL./2017 ITA NO.484/DEL./2015 ITA NO.6516/DEL./2015 ITA NO.6710/DEL./2016 17 ARE ALLOWED; ITA NOS.2436/DEL./2017, 2437/DEL./2017 , 2438/DEL./2017, 2439/DEL./2017 & 2440/DEL./2017 FOR ASSESSMENT YEARS 2004-05, 2005-06, 2006-07, 2007-08 & 2008-09 RESPECTIVELY FILED BY THE REVENUE ARE DISMISSED; IT A NO. 6516/DEL./2015 FOR AY 2005-06 FILED BY THE TEJASVI INVESTMENT (P) LTD. IS ALLOWED AND ITA NOS.484/DEL./2015 & 671 0/DEL./2016 FOR AYS 2009-10 & 2005-06 FILED BY BHAWANI PORTFOLI O PVT. LTD. AND GEEFCEE FINANCE LTD. RESPECTIVELY ARE ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 26 TH DAY OF APRIL, 2019. SD/- SD/- (R.K. PANDA) (KULDIP SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 26 TH DAY OF APRIL, 2019 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-3, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.