DUSHYANT SINGH, MUMBAI V. DCIT CEN CIR 6, MUMBAI

ITA 1865/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9998 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 28-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIJIT PATANKAR
• Assessee Lawyers: B N RAO
• Keywords: Search and seizure; Accommodation entries
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL , ACCOUNTANT MEMBER ITA NO. 1865 /MUM./2016 ( ASSESSMENT YEAR : 20 06 07 ) SHRI DUSHYANT SINGH A/403, MATUSHRI CHS LTD. M.G. ROAD, GOREGAON (W) MUMBAI 400 104 AWZPS2908L . APPELLANT V/S DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 6, MUMBAI . RESPONDENT ITA NO. 1866/MUM./2016 ( ASSESSMENT YEAR : 20 07 08 ) SHRI DUSHYANT SINGH A/403, MATUSHRI CHS LTD. M.G. ROAD, GOREGAON (W) MUMBAI 400 104 AWZPS2908L . APPELLANT V/S DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 6, MUMBAI . RESPONDENT ITA NO. 1867/MUM./2016 ( ASSESSMENT YEAR : 20 10 11 ) SHRI DUSHYANT SINGH A/403, MATUSHRI CHS LTD. M.G. ROAD, GOREGAON (W) MUMBAI 400 104 AWZPS2908L . APPELLANT V/S DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 6, MUMBAI . RESPONDENT ASSESSEE BY : SHRI B.N. RAO REVENUE BY : SHRI ABHIJIT PATANKAR DATE OF HEARING 26 .0 2 .2018 DATE OF ORDER 28.02.2018 2 SHRI DUSHYANT SINGH O R D E R PER SAKTIJIT DEY, J.M. AFORESAID APPEALS BY THE SAME ASSESSEE ARE AGAINST A COMMON ORDER DATED 22 ND DECEMBER 2015, OF THE LEARNED COMMISSIONER (APP EALS) 47, MUMBAI, PASSED FOR FIVE ASSESSMENT YEARS. HOWEVER, THE PRESENT APPEALS RELATE TO ASSESSMENT YEARS 2006 07, 2007 08 AND 2010 11. 2 . THE GROUNDS RAISED BY THE ASSESSEE WHICH ARE IDENTICAL IN ALL THESE APPEALS READ AS UNDER: 1. THE LEARNED COMMISSIONER (APPEALS) ERRED IN UPHOLDING THE ADDITION T THE EXTENT OF 85% BY GIVING RELIEF ONLY TO THE EXTENT OF 0.15% FROM THE ASSESSED 1% COMMISSION ON THE BOGUS BILLS PROVIDED BY THE APPELLANT. 2. THE ASSESSING OFFICER ERRED IN INVOKING PROVISIONS OF SECTION 153C OF THE ACT WHICH IS AB INITIO VOID AND BAD IN LAW. 3 . THE ASSESSEE IS AN INDIVIDUAL. A SEARCH AND SEI ZURE OPERATION UNDER SECTION 132(1) OF THE ACT WAS CONDUCTED IN CASE OF M/S. ARYA GROUP OF COMPANIES ON 29 TH APRIL 2011. THE SAID COMPANY IS STATED TO BE IN THE BUSINESS OF SHIP BREAKING AT ALANG IN BHAVNAGAR, GUJARAT, AND TRADING IN STEEL ITEMS IN MUMBAI AND PRODUCTION OF STEEL PELLETS AT BARBIL, ORISSA. DURING THE SEARCH OPERATION, THE GROUP MADE CUMULATIVE VO LUNTARY DISCLOSURE OF UNDISCLOSED INCOME OF ` 20 CRORE. 3 SHRI DUSHYANT SINGH ON THE VERY SAME DAY A SEARCH AND SEIZURE OPERATION UNDER SECTION 132(1) WAS CONDUCTED IN CASE OF M/S. TIRUPATI GROUP OF COMPANIES WHICH IS INVOLVED IN THE BUSINESS OF TRADING OF M.S. STEEL PIPE, M.S. JOIST, R.S.J. POLLS, ANGLES, CHANNELS AND PMT BARS, ETC. DURING THE SEARCH PROCEEDINGS, THE GROUP OFFERED CUMULATIVE VOLUNTARY DISCLOSURE OF UNDISCLOSED INCOME AMOUNTING TO ` 4 CRORE. FORM THE INCRIMINATING MATERIALS SEIZED FROM BOTH THE CONCERNS DURING T HE SEARCH OPERATION IT WAS FOUND THAT THE ASSESSEE AND OTHER RELATED CONCERNS WERE PROVIDING BOGUS BILLS / ACCOMMODATION ENTRIES TO THESE TWO GROUP OF COMPANIES. AS A CONSEQUENCE OF THE SEARCH OPERATION, THE ASSESSEE OFFERED AN AMOUNT OF ` 2.93 LAKH ON ACC OUNT OF COMMISSION EARNED FOR PROVIDING BOGUS BILLS IN ASSESSMENT YEAR S 2008 09 AND 2009 10. ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND THE STATEMENT RECORDED FROM THE ASSESSEE UNDER SECTION 133A OF THE ACT ON 29 TH APRIL 2011, WHEREIN, THE ASSESSEE A DMITTED OF PROVIDING ACCOMMODATION BILLS , THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO PROVE THE GENUINENESS OF SALES EFFECTED TO THE CONCERNED PARTIES AND ALSO TO EXPLAIN WHY THE BOOKS OF ACCOUNT SHOULD NOT BE REJECTED. THOUGH, THE ASSESSEE SUBMITTED ITS EXPLANATION STATING THAT THE BOOKS OF ACCOUNT WERE CORRECTLY MAINTAINED, HOWEVER, THE ASSESSING OFFICER DID NOT FIND MERIT IN THE SUBMISSIONS OF THE ASSESSEE. HE FOUND THAT APART FROM THE MATERIAL FOUND AS A RESULT OF SEARCH INDICATING INVOLVEMENT OF THE ASSESSEE IN PROVIDING ACCOMMODATION BILLS , THE INFORMATION RECEIVED 4 SHRI DUSHYANT SINGH FROM SALES TAX DEPARTMENT, MAHARASHTRA GOVERNMENT, ALSO PROVE D THAT THE ASSESSEE WAS INVOLVED IN PROVIDING ACCOMMODATION BILLS. THE ASSESSING OFFICER OBSERVED, AS PER THE MARKET PRACTI CE, THE FEES CHARGED FOR PROVIDING ACCOMMODATION BILLS VARIED BETWEEN 0.5% TO 2% OF THE TRANSACTION VALUE. THEREFORE, THE ASSESSING OFFICER ESTIMATED THE COMMISSION RECEIVED BY THE ASSESSEE @ 1% OF THE BOGUS BILLS / ACCOMMODATION ENTRIES AS INCOME OF THE A SSESSEE AND ACCORDINGLY MADE ADDITION IN DIFFERENT ASSESSMENT YEARS DEPENDING ON THE QUANTUM OF ACCOMMODATION BILLS / ENTRIES PROVIDED BY THE ASSESSEE. BEING AGGRIEVED OF SUCH ADDITIONS MADE BY THE ASSESSING OFFICER IN DIFFERENT ASSESSMENT YEARS , ASSESSEE PREFERRED APPEAL BEFORE THE LEARNED COMMISSIONER (APPEALS). 4 . THE LEARNED COMMISSIONER (APPEALS) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE IN THE CONTEXT OF FACTS AND MATERIAL ON RECORD DIRECTED THE ASSESSING OFFICER TO ALLOW DEDUCTION OF 15% TOWARD S EXPENSES OUT OF THE COMMISSION EARNED @ 1% AND ADD THE NET COMMISSION INCOME IN ALL THE ASSESSMENT YEARS IN APPEAL. 5 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. AT THE VERY OUTSET, IT WAS BROUGHT TO OUR NOTICE BY THE LEARNED COU NSELS APPEARING FOR THE PARTIES THAT WHILE DECIDING ASSESSEES APPEAL S ARISING OUT OF THE VERY SAME ORDER OF THE FIRST APPELLATE AUTHORITY , THE TRIBUNAL HAS UPHELD THE DECISION OF THE LEARNED 5 SHRI DUSHYANT SINGH COMMISSIONER (APPEALS). ON A PERUSAL OF THE ORDER DATED 18 TH AUGUST 2017, PASSED IN ITA NO.1868/MUM./2016 AND ITA NO.1869/MUM./2016, WE FIND THE AFORESAID SUBMISSIONS OF THE PARTIES TO BE CORRECT. THEREFORE , CONSISTENT WITH THE VIEW EXPRESSED BY THE CO ORDINATE BENCH IN ASSESSEES OWN CASE AS REFERRED TO ABOVE, WE UPHOLD THE DECISION OF THE LEARNED COMMISSIONER (APPEALS) IN ALL THESE ASSESSMENT YEARS UNDER APPEAL. GROUNDS RAISED ARE DISMISSED. 6 . IN THE RESULT, ALL THE APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.02.2018 SD/ - MANOJ KUMAR AGGARWAL ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 28.02.2018 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (ASSTT. REGISTRAR /SR.P.S ) ITAT, MUMBAI