Genus Commu Trade Limited, Ahmedabad V. The Dy.CIT, Central Circle-2(2), Ahmedabad

ITA 1669/AHD/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0732 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 12-07-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 10-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ADITYA SHUKLA
• Assessee Lawyers: PF JAIN
• Keywords: Bogus Share capital; Income from undisclosed sources; Agreed addition; Accommodation entries
• Section: 143(3); 148; 144; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NO. 1669/AHD/2015 / ASSESSMENT YEAR : 2010-11 GENUS COMMU TRADE LIMITED, C/O. VISHVESH A. SHAH & CO., 316, 3 RD FLOOR, ABHISHEKH PLAZA, B/H. NAVGUJARAT COLLEGE, USMANPURA, AHMEDABAD PAN : AAACT 5651 P VS DCIT, CENTRAL CIRCLE 2 (2), AHMEDABAD / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI P.F. JAIN, AR REVENUE BY : SHRI ADITYA SHUKLA, SR DR / DATE OF HEARING : 12/07/2016 / DATE OF PRONOUNCEMENT: 30/08/2016 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-12, AHMEDABAD DATED 27.03.2015 FOR AY 2010-2011. 2. THE SOLE GROUND RAISED IS AS UNDER:- THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN UPH OLDING THE LEVY OF PENALTY OF RS.7,15,485/- U/S 271(1)(C) FOR ALLEGED FU RNISHING OF INACCURATE PARTICULARS OF INCOME WITHOUT PROPERLY APPRECIATING THE FACTS OF THE APPELLANT. 3. BRIEF FACTS ARE THE ASSESSEE THOUGH CLAIMS TO BE ENGAGED IN THE BUSINESS OF SOFTWARE DEVELOPMENT AND TRADING IN SHA RES AND SECURITIES, DURING THE COURSE OF ASSESSMENT THE ASSESSING OFFIC ER FOUND THAT THE ASSESSEE-FIRM IS ONLY AN ACCOMMODATION ENTRY PROVID ER WHICH WAS NOT DISPUTED AND THE ASSESSMENT WAS FRAMED AT RS.10,23, 115/- AS AGAINST THE SMC-ITA NO. 1669/AHD/2015 GENUS COMMU TRADE LTD VS. DCIT AY : 2010-11 2 LOSS DECLARED BY THE ASSESSEE AT RS.(-)16,12,371/-, BY FOLLOWING OBSERVATIONS:- 3. FURTHER, ASSESSEE VIDE ITS SUBMISSION DATED 23. 03.2013, THE RELEVANT EXTRACT IS REPRODUCED HEREUNDER: 'THE ABOVE ASSESSEE HAS FILED RETURN FOR A. Y 2010-1 1 ON 14/10/2010 DECLARING LOSS OF 16,12.371/-. THE FACTS OF THE ASS ESSEE ARE SIMILAR TO THE FACTS OF NEXUS SOFTWARE LTD. WHICH /S ALSO ASSE SSED IN YOUR CIRCLE THE ASSESSMENT OF NEXUS SOFTWARE LTD. FOR A Y. 2009 -W WAS PASSED U/S. 144 ON 20/12/2011 IN THIS CIRCLE AND THE INCOM E WAS DETERMINED ON ESTIMATED BASIS AT RS 26,35,726/- BY ASSUMING CO MMISSION @ 0.5 % ON THE BANK WITHDRAWALS TRANSACTIONS DURING THE Y EAR TREATING THE SAID TRANSACTIONS AS ACCOMMODATION ENTRIES . THE TO TAL OF WITHDRAWALS FROM VARIOUS BANK ACCOUNT AS PER PARA 4.2 OF THE SA ID ORDER WAS PUT AT RS.52,71,45,160/- FOR A Y. 2009-10 ON WHICH INCOME W AS COMPUTED @ 0.5% WHICH CAME TO RS. 26,35,726/-. AS PER PROFIT AND LOSS ACCOUNT OF THE ASSESSEE FOR T HIS YEAR THERE IS LOSS OF RS 41,00,291 /-DURING THE YEAR THE ASSESSEE HAS SHOWN SALES OF RS.10,30,67,375/- WHICH INCLUDES AMOUNTS RECEIVED O N LAND TRANSACTIONS AND SHARES AND SECURITIES TREATED BY T HE DEPARTMENT AS ACCOMMODATION ENTRIES DETERMINING INCOME @ 0.5 % ON THE GROSS AMOUNT OF TRANSACTIONS AS PER BANK STATEMENT. AS STA TED ABOVE THE FACTS OF THE ASSESSEE BEING SIMILAR TO THE FACTS OF NEXUS SOFTWARE LTD. AND IN THE REASONS RECORDED FOR THE NOTICE U/S. 148 ISSUED TO THE ASSESSEE COMPANY FOR A. Y. 2008-09, IT HAS BEEN MENT IONED THAT THE COMPANY HAS RECEIVED RS. 0 50 PER RS.100/- AND THES E ARE NOT GENUINE ENTRIES AND ONLY ADJUSTMENT ENTRIES HAVE BEEN GIVEN . THEREFORE THE SAME METHOD OF COMPUTATION INCOME ADOPTED FOR NEXUS SOFTWARE LTD IS ALSO SUBMITTED TO BE ADOPTED FOR THE ASSESSEE CO MPANY ALSO. DURING THE YEAR THE TOTAL OF BANK TRANSACTIONS COME S TO RS.52,70,97,148/- THE DETAILS WHEREOF IS GIVEN IN T HE ANNEXURE SEPARATELY ATTACHED HEREWITH. AS PER THE COMPUTATION METHOD ADOPTED BY THE DEPARTMENT THE INCOME FOR A.Y. 2010-11 @ 0.5 % WILL COME TO RS. 26,35,485/-. THIS IS IN KEEPING WITH ASSESSMENT ORDER FOR A. Y. 2009-10 OF NEXUS SOFTWARE LTD. AND AS PER THE REASO NS RECORDED FOR A.Y 2008-09 U/S. 148 IN RESPECT OF ASSESSEE COMPANY ALSO. THEREFORE THE ASSESSMENT MAY KINDLY BE FINALIZED ACCORDINGLY. ' 4. ON PERUSAL OF THE BANK STATEMENT AS SUBMITTED BY THE ASSESSEE, IT IS CLEAR THAT THE DEPOSITS AND WITHDRAWALS MADE BY THE ASSES SEE-COMPANY DURING THE YEAR ARE SAME. IN ALL THE BANK ACCOUNTS THE OPENING AND CLOSING BALANCES ARE SMC-ITA NO. 1669/AHD/2015 GENUS COMMU TRADE LTD VS. DCIT AY : 2010-11 3 INSIGNIFICANT WHEN COMPARED WITH THE DEPOSITS AND T HE WITHDRAWALS. MOREOVER, ON EXAMINATION OF THE BANK STATEMENTS IT IS SEEN THAT FUNDS ARE DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE-COMPA NY AND THE SAME IN EQUAL AMOUNT ARE TRANSFERRED TO SOME OTHER ACCOUNT ON THE SAME DAY OR THE SUBSEQUENT DAYS. 4.2. 5. IN VIEW OF THE DISCUSSION HELD ABOVE AND ADMISSI ON OF THE ASSESSEE COMPANY VIDE ITS LETTER DATED 23.03.2013, IT IS HEL D THAT THE ASSESSEE-COMPANY IS INVOLVED IN THE BUSINESS OF PROVIDING ACCOMMODAT ION ENTRIES AND ACTS AS A PASS THROUGH ENTITY. THUS, AS ADMITTED BY THE ASSES SEE-COMPANY IN ITS SUBMISSION REFERRED TO ABOVE THAT IT GETS A COMMISS ION OF 0.5% ON PROVIDING ACCOMMODATION ENTRIES AND AMOUNT OF RS. 26,35,485/- (527097148 X 0.5%) IS HEREBY HELD TO BE THE TOTAL INCOME OF THE ASSESS EE COMPANY BEING 0.5% OF THE TOTAL FUNDS ROUTED BY THE ASSESSEE-COMPANY THRO UGH ITS BANK ACCOUNTS. 3.1 SINCE THE ASSESSEE ADMITTED THE ADDITION, NO FU RTHER APPEALS WERE FILED BY IT. CONSEQUENT TO THE INITIATION OF PENAL TY PROCEEDINGS, SHOW CAUSE NOTICE U/S 271(1)(C) WAS ISSUED. THE ASSESSEE VIDE REPLY DATED 27.09.2013 CONTENDED AS UNDER:- 'THE BOOKS OF THE ACCOUNTS OF THE ASSESSEE ARE AUDI TED AND IN THE AUDITED ACCOUNT NO DISCREPANCY HAVE BEEN FOUND, THE ASSESSE E IS ENGAGED IN THE BUSINESS OF SALE AND PURCHASE OF SECURITIES. IN ORD ER TO BUY PEACE AND AVOID PROTRACTED LITIGATION THE ASSESSEE HAS ACCEPTED THE ESTIMATED INCOME WHICH CANNOT BE CONSTRUED FURNISHING OF INACCURATE PARTIC ULARS OF INCOME. THE ASSESSEE HAS DISCHARGED ITS ONUS IN SUPPORT OF RETU RN OF INCOME FILED. ESTIMATED INCOME CANNOT BE AS BASIS FOR LEVY OF PEN ALTY. SIMPLY ON THE BASIS OF CONFESSION IN THE STATEMENT, NO ADDITION CAN BE MADE IF THERE IS NO CORROBORATING EVIDENCE TO PROVE THE ALLEGATION. THE PARTIES, WITH WHOM DEALINGS OF SALES AND PURCHASES HAVE TAKEN PLACE, H AVE NOT ACCEPTED THAT THE SAID DEALINGS ARE ACCOMMODATING ENTRIES ONLY. IN VI EW OF THESE FACTS THE PENALTY PROCEEDINGS MAY KINDLY BE DROPPED.' 3.2 THE ASSESSING OFFICER WAS NOT SATISFIED WITH TH E REPLY AND IMPOSED THE PENALTY BY FOLLOWING OBSERVATIONS:- 5. THE CONTENTION OF THE ASSESSEE IS CAREFULLY CON SIDERED. ON PERUSAL OF THE BANK STATEMENT IT IS CLEAR THAT THE DEPOSITS AND WI THDRAWALS MADE BY ASSESSEE-COMPANY DURING THE YEAR ARE SAME. IN ALL T HE BANK ACCOUNTS THE SMC-ITA NO. 1669/AHD/2015 GENUS COMMU TRADE LTD VS. DCIT AY : 2010-11 4 OPENING AND CLOSING BALANCES ARE INSIGNIFICANT WHEN COMPARED WITH THE DEPOSITS AND THE WITHDRAWALS. MOREOVER, ON EXAMINAT ION OF THE BANK STATEMENT IT IS SEEN THAT FUNDS ARE DEPOSITED IN TH E BANK ACCOUNT OF THE ASSESSEE COMPANY AND THE SAME IN EQUAL AMOUNT ARE T RANSFERRED TO SOME OTHER ACCOUNT ON THE SAME DAY OR THE SUBSEQUENT DAY S. DURING THE FINANCIAL YEAR UNDER CONSIDERATION THE TOTAL DEPOSITS AND WIT HDRAWALS WORK OUT AT RS.52,78,46,703/-. ON THE BASIS OF THE DISCUSSION D URING ASSESSMENT PROCEEDINGS AS ABOVE ASSESSEE COMPANY ADMITTED THAT IT HAS EARNED 0.5% COMMISSION ON THE ABOVE TURNOVER AND THEREFORE, ASS ESSEE HAS OFFERED INCOME OF RS26,35,485/-(527097148 X 0.5%) FOR TAXATION WHI CH WAS ADDED TO THE TOTAL INCOME. THEREFORE, I AM SATISFIED THAT THIS I S THE CASE OF FURNISHING INACCURATE PARTICULARS OF INCOME FOR RS. 26,35,485/ - . 3.3 AGGRIEVED, THE ASSESSEE PREFERRED FIRST APPEAL, WHERE THE PENALTY WAS ASSAILED ON VARIOUS GROUNDS THAT THE ASSESSMENT WAS ON THE BASIS OF ESTIMATE, BY FOLLOWING REPLY:- 'THE APPELLANT COMPANY IS ENGAGED IN BUSINESS OF DE ALING IN PURCHASE AND SALE OF SECURITIES. RETURN SHOWING LOSS OF RS. 16,1 2,371 WAS FILED ON 14-10- 2010. AS PER ASSESSMENT ORDER PASSED U/S 143(3) INCO ME HAS BEEN ESTIMATED BY TREATING THE TRANSACTIONS OF THE COMPANY AS ACCO MMODATING ENTRIES WITHOUT ANY COGENT EVIDENCE. THE ASSESSEE HAS ACCEP TED THE ESTIMATED INCOME TO BUY PEACE AND AVOID PROTRACTED LITIGATION. THE P ARTIES WITH WHOM DEALING OF PURCHASE AND SALES HAVE TAKEN PLACE HAVE NOT ACC EPTED THAT THE SAID DEALINGS ARE ACCOMMODATING ENTRIES ONLY. THE ONUS I S ON THE DEPARTMENT TO PROVE IT. THE CONTENTIONS OF THE ASSESSEE HAVE NOT BEEN ACCEPTED AND PENALTY HAS BEEN LEVIED FOR ALLEGED FURNISHING OF INACCURAT E PARTICULARS OF INCOME. BEING AGGRIEVED BY THE PENALTY, THIS APPEAL IS PREF ERRED.' 3.4 THE LD. CIT(A), HOWEVER, CONFIRMED THE PENALTY BY FOLLOWING OBSERVATIONS:- 6. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MADE BY THE APPELLANT AND HAVE GONE THROUGH THE ASSESSMENT ORDER AS WELL AS P ENALTY ORDER PASSED BY THE ASSESSING OFFICER. 6.1 THE CONTENTIONS OF THE APPELLANTS ARE NOT ACCEP TABLE AS IT IS SEEN THAT DURING THE YEAR UNDER CONSIDERATION, THE APPELLANT WAS INVOLVED IN THE ACCOMMODATION ENTRY BUSINESS AND FUNDS RECEIVED WAS NOT UTILIZED FOR BUSINESS PURPOSE AT ALL. THE STANDARD MODUS OPERAND I WAS FOLLOWED REGULARLY AND THE FUNDS USED TO BE TRANSFERRED TO ANOTHER ENT ITY ON THE VERY SAME DAY SMC-ITA NO. 1669/AHD/2015 GENUS COMMU TRADE LTD VS. DCIT AY : 2010-11 5 OR NEXT DAY IN THE FORM OF ACCOMMODATION ENTRY. THE APPELLANT COULD NOT SUBMIT ANY EXPLANATION OR MATERIAL IN SUPPORT OF TH E GENUINENESS OF THE TRANSACTION BUT ONLY SUBMITTED THAT THE ADDITION WA S ON ESTIMATE BASIS AND ITS NOT LIABLE FOR PENALTY . 6.2 THE CONTENTION OF THE APPELLANT THAT IT DISCLOS ED THE COMMISSION INCOME SUO MOTO TO BUY PEACE IS MISLEADING AND NOT SUPPORT ED WITH EVIDENCE AND WITHOUT ANY BASIS. IT IS SEEN THAT AFTER SHOW CAUSE , THE APPELLANT ADMITTED BEFORE THE AO THAT IT WAS INVOLVED IN PROVIDING THE ACCOMMODATION ENTRY ALONG WITH THE OTHER COMPANY OF THE GROUP I.E. NEXU S SOFTWARE LTD. THE OTHER COMPANY NEXUS SOFTWARE WAS ASSESSED U/S 144 OF THE ACT IN AY 2009-10 AND INCOME WAS ESTIMATED AT 0.5% OF THE ACCOMMODATI ON ENTRIES AS COMMISSION BY THE DEPARTMENT. AFTER CONFRONTATION T HE APPELLANT AGREED TO OFFER COMMISSION INCOME @ 0.5% AND DISCLOSED/ ADMIT TED 0.5% COMMISSION ON THE SIMILAR LINE AND OFFER RS. 26,35,485/- ON BA NK TRANSACTION OF RS.52,70,97,148/- FOR TAXATION. THUS THE CONTENTION OF THE APPELLANT IS NOT ACCEPTABLE BEING FALSE AND THE MANDATORY DISCLOSURE FALLS UNDER THE CONCEALMENT OF THE INCOME CATEGORY. 6.3 IT IS ALSO FACT THAT APPELLANT ACCEPTED THE ADD ITION AND DID NOT FILED ANY APPEAL AGAINST THE FINDING OF THE AO. FROM THE ABOVE , IT IS CLEAR THAT APPELLANT HAD EARNED UNACCOUNTED COMMISSION @ 0.5% ON THE ACCOMMODATION ENTRIES PROVIDED AND SAME WAS NOT AT DISCLOSED IN BOOKS OF ACCOUNTS AND RETURN FILED U/S 139 OF THE ACT. 6.4 THE APPELLANT HAS FURTHER RELIED ON THE CASE OF THE RELIANCE PETRO PRODUCTS, 322 ITR 158 HOWEVER THE FACTS AND CIRCUMS TANCES ARE CLEARLY DISTINGUISHABLE FROM THE APPELLANT AS IN THE CASE O F APPELLANT IT WAS INVOLVED IN THE ACCOMMODATION ENTRIES BUSINESS AND SINCE AFT ER CONFRONTATION, ALL ESCAPE ROUTE WAS CLOSED, THEREFORE UNDISCLOSED COMM ISSION INCOME WAS ADMITTED AT THE RATE OF 0.5% OF THE ACCOMMODATION E NTRIES. 6.5 THEREFORE, IT IS HELD THAT APPELLANT HAS EARNE D UNACCOUNTED INCOME TO THE EXTENT OF RS.26,35,485/- WITHOUT REFLECTING THE SAM E IN THE REGULAR BOOKS OF ACCOUNT. THE APPELLANT HAS FURNISHED INACCURATE PA RTICULARS OF HIS INCOME AND THEREBY CONCEALED HIS INCOME TO EXTENT OF RS.26 ,35,485/- AND ACCORDINGLY, PENALTY LEVIED BY THE AO 271(1)(C) OF TH E ACT OF RS.7,15,485/- IS JUSTIFIED AND THE SAME IS UPHELD. 4. LD. COUNSEL FOR THE ASSESSEE REITERATED THE FACT S AND CONTENDS THAT THE PENALTY IN QUESTION IS NOT JUSTIFIED AS :- SMC-ITA NO. 1669/AHD/2015 GENUS COMMU TRADE LTD VS. DCIT AY : 2010-11 6 I) THE ADDITION WAS ACCEPTED BY ASSESSEE AND NOT CHALL ENGED BEFORE THE LD. CIT(A) TO BUY PEACE OF MIND AND TO AVOID LITIGA TION. THERE WAS NO MALAFIDE INTENTION; II) THE QUANTUM ADDITION IS NOT BASED ON ANY DIRECT EVI DENCE BUT ON ESTIMATE AND THE PENALTY U/S 271(1)(C) SHOULD NOT B E IMPOSED ON ESTIMATED INCOME. RELIANCE IS PLACED ON ITAT, NAGP UR BENCH JUDGMENT IN THE CASE OF ACIT VS. MALU ELECTRODES (P ) LTD, REPORTED IN (2011) 7 ITR 0256, WHEREIN IT WAS HELD AS UNDER:- MERE FACT OF AGREED ADDITION DOES NOT RESULT INTO A CONCLUSION THAT THE AMOUNT AGREED TO BE ADDED AS INCOME IS CONCEALED IN COME; IN SUCH A CASE, THE AO SHOULD FURTHER BRING SOME MATERIAL ON RECORD SO THAT IT IS CONCLUSIVELY ESTABLISHED THAT SUCH SURRENDER, IN FA CT, REPRESENTED THE REAL INCOME OR UNDISCLOSED INCOME OF THE ASSESSEE; ON TH E FACTS OF THE CASE, PENALTY WAS NOT LEVIABLE IN RESPECT OF SURRENDER OF SHARE CAPITAL AS INCOME. 5. LD. DR, ON THE OTHER HAND, VEHEMENTLY CONTENDS T HAT THERE IS NO QUESTION OF ESTIMATE. THE ASSESSMENT IS NOT FRAMED ON ANY ESTIMATE BUT BASED ON CLEAR-CUT FINDING. THE ASSESSEE BY ITS V OLUNTARY REPLY DATED 23.03.2013 DURING THE COURSE OF ASSESSMENT PROCEEDI NGS, OFFERED THE ACCOMMODATION ENTRY INCOME @ 0.5%, COMING AT RS.26, 35,485/-. THE ASSESSEE HAS CITED THE CASE OF NEXUS SOFTWARE LTD F OR AY 2008-09. THUS, THE ASSESSMENT HAS BEEN FRAMED NOT ON ANY ESTIMATE BUT ASSESSEES OWN DEFINITIVE ADMISSION OF BEING ENTRY OPERATOR AND PE RCENTAGE CALCULATION ON ACCOMMODATION ENTRIES. 5.1 THE ASSESSEE HAS NOT DISPUTED THAT IT WAS AN IN STRUMENTALITY IN ACCOMMODATION ENTRY RACKET; THEREFORE, THE PENALTY HAS BEEN RIGHTLY LEVIED. 5.2 THE ASSESSEES CONTENTION THAT THE ADMISSION W AS TO BUY PEACE HAS NO LEGS TO STAND AS PLETHORA OF EVIDENCE WAS FOUND AND ASSESSEE VOLUNTARILY SMC-ITA NO. 1669/AHD/2015 GENUS COMMU TRADE LTD VS. DCIT AY : 2010-11 7 AGREED THAT ITS DECLARED BUSINESS WAS A RUSE IN FAC T AND ALL THE ENTRIES WERE ACCOMMODATION ENTRIES AND OFFERED THE % INCOME THER EON. THE ASSESSEE WHO INDULGES IN ACCOMMODATION ENTRIES AND RUIN THE ECONOMIC STRENGTH OF THE COUNTRY DOES NOT DESERVE ANY WITH LENIENCY QUA THE PENALTY. BESIDES, THE AO AND THE LD. CIT(A) WERE REASONABLE IN IMPOSI NG THE PENALTY @ 100% OF THE TAX SOUGHT TO BE EVADED AS AGAINST THE POWER OF IMPOSING A PENALTY OF 300% OF THE TAX SOUGHT TO BE EVADED. 5.3 ITAT, NAGPUR BENCH JUDGMENT IN THE CASE OF MALU ELECTRODES (P) LTD (SUPRA) IS NOT APPLICABLE TO ASSESSEES CASE AS IN THAT CASE THE ASSESSEE, I.E. MALU ELECTRODES (P) LTD WAS NOT AN ENTRY OPERATOR B UT HAD LEGITIMATELY RECEIVED BOGUS SHARE CAPITAL AND THERE WAS LIKELIHO OD OF APPLICATION OF SUPREME COURT JUDGMENT IN THE CASE OF CIT VS LOVELY EXPORTS (P) LTD., 216 CTR 195 (SC), HAD THE ASSESSEE DENIED. THE ASSESSE ES CASE STANDS ON TOTALLY DIFFERENT FOOTINGS AS ALL THE ENTRIES OF THE ASSESS EE WERE FOUND TO BE ACCOMMODATION ENTRIES AND ADMITTED TO BE SO BY ASSE SSEE. THE FACTS OF PROFESSIONAL ENTRY OPERATOR CANNOT BE HELD TO BE ON PARITY WITH THE ABOVE CITED ITAT, NAGPUR BENCH JUDGMENT IN THE CASE OF MA LU ELECTRODES (P) LTD. (SUPRA). IN VIEW THEREOF, THE PENALTY HAS BEEN RIG HTLY IMPOSED BY THE ASSESSING OFFICER AND THE SAME SHOULD BE UPHELD. 6. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE LOWER AUT HORITIES. WE FIND MERIT IN THE CONTENTION OF THE LD. DR INASMUCH AS :- I) THE ADDITION ON WHICH PENALTY HAS BEEN IMPOSED IS N OT BASED ON ESTIMATE BUT THE SAME WAS OFFERED BY THE ASSESSEE I TSELF BASED ON ANOTHER CASE OF NEXUS SOFTWARE LTD. THERE BEING NO ELEMENT OF ESTIMATE, THIS CONTENTION OF THE ASSESSEE CARRIES N O MERIT. SMC-ITA NO. 1669/AHD/2015 GENUS COMMU TRADE LTD VS. DCIT AY : 2010-11 8 II) NOTHING EMERGES FROM RECORD THAT THE ASSESSEE AGREE D TO THE ADDITION TO BUY PEACE OF MIND AND TO AVOID LITIGATION. THE R ECORD IS FULL OF FACTS THAT NATURE OF MATERIAL WAS AVAILABLE. PLETHORA OF EVIDENCE WAS AVAILABLE TO HOLD THAT ASSESSEE WAS A PROFESSIONAL ENTRY OPERATOR, THE FACT WHICH IS ACCEPTED BY THE ASSESSEE. III) LD. AO AND CIT(A) HAVE BEEN REASONABLE IN IMPOSING PENALTY TO THE TUNE OF 100%, WHEREAS THEY COULD HAVE IMPOSED AT T HE RATE OF 300% OF THE TAX SOUGHT TO BE EVADED BY SUCH DEPLORABLE ACCO MMODATION ENTRY RACKET. IN VIEW OF THESE FACTS, CIRCUMSTANCES AND OBSERVATI ONS, THE ITAT NAGPUR BENCH DECISION IN THE CASE OF MALU ELECTRODES (P) L TD (SUPRA) IS NOT APPLICABLE TO THE ASSESSEES CASE. I SEE NO INFIRM ITY IN THE ORDERS OF THE AUTHORITIES BELOW CONFIRMING THE PENALTY WHICH ARE UPHELD. 7. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 30 TH AUGUST, 2016 AT AHMEDABAD. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 30/08/2016 *BIJU T. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD