Smt. Nirmal Oberoi, New Delhi V. ACIT, New Delhi

ITA 2259/DEL/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9689 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 27-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Keywords: Search and seizure
• Section: 271(1)(c); 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI F BEN CH, NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI SUDHANSHU SRIVASTAVA, JUDI CIAL MEMBER ITA NO. 6348/DEL/2015 [A.Y 2007-08] ITA NO. 6349/DEL/2015 [A.Y 2008-09] ITA NO. 2254/DEL/2016 [A.Y 2006-07] ITA NO. 2259 /DEL/201 6 [A.Y 2008-09] SMT. NIRMAL OBEROI VS. THE A.C.I.T C 170, III FLOOR CENTRAL CIRCLE 10 WEST PATEL NAGAR NEW DELHI NEW DELHI PAN: AAJPO 5097 N (APPLICANT) ( RESPONDENT) ASSESSEE BY : SHRI M.P. RAST OGI, ADV DEPARTMENT BY : SHRI SURENDER PAL SR. DR DATE OF HEARING : 18.09.2019 DATE OF PRONOUNCEMENT : 24.09.2019 ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, ITA NO. 6348 AND 6349/DEL/2015 ARE TWO SEPARATE APPEALS BY THE ASSESSEE PREFERRED AGAINST TWO SEPARATE ORDERS OF THE LD. CIT(A)- 32, NEW DELHI DATED 31.10.2013 PERTAINING TO ASSESS MENT YEARS 2007- 08 AND A.Y 2008-09. ITA NO. 2254 AND 2259/DEL/201 6 [A.Y 2008-09 2 2015 ARE TWO SEPARATE APPEALS BY THE ASSESSEE PREFERRED AGAINST TWO SEPARATE ORDERS OF THE LD. CIT(A)- 27, NEW DELHI DA TED 24.02.2016 PERTAINING TO ASSESSMENT YEARS 2007-08 AND A.Y 20 08-09. 2. FIRST TWO APPEALS ARE IN RESPECT OF ADDITIONS MA DE BY THE ASSESSING OFFICER AND NEXT TWO APPEALS ARE IN RESPE CT OF LEVY OF PENALTY U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961 [HEREINAF TER REFERRED TO AS 'THE ACT']. 3. SINCE THE UNDERLYING FACTS IN ISSUES ARE IDENTIC AL, ALL THESE APPEALS ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 4. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT A SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT WAS CARRIED OU T ON 10.02.2010 ON RAHEJA GROUP. DURING THE COURSE OF SEARCH OPERATIO NS, THE SEARCH PARTY FOUND BILLS FOR PURCHASE OF CEMENT AND TMT BA RS OF M/S AMBA ENTERPRISES. IT WAS FOUND THAT AMBA ENTERPRISES WA S GIVING BOGUS BILLS TO THE RAHEJA GROUP OF COMPANIES WITH AN INTENTION TO INFLATE THEIR PURCHASES AND LESSEN THE INSTANCES OF TAX. 3 5. PURSUANT TO THESE CLINCHING EVIDENCES, DURING TH E COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSING OFFI CER RECORDED THE STATEMENTS OF SHRI ASHOK OBEROI, THE HUSBAND OF THE ASSESSEE, WHO, IN HIS STATEMENT, EXPLAINED THE MODUS OPERANDI AND EAR NING OF COMMISSION. SHRI OBEROI STATED THAT BY ISSUING ACC OMMODATION BILLS, COMMISSION @ 10P TO 15 PAISE PER 100 PAISE WAS RECE IVED. TAKING A LEAF OUT OF THIS STATEMENT, THE ASSESSING OFFICER E STIMATED THE INCOME FROM COMMISSION @ 1% AND MADE ADDITION OF RS. 22,58 ,031/- IN ASSESSMENT YEAR 2007-08 AND RS. 8,42,107/- IN ASSES SMENT YEAR 2008- 09. 6. PROCEEDING FURTHER, THE ASSESSING OFFICER FURTHE R MADE ADDITION OF 1% ON THE BASIS OF VAT RETURNS FILED BY THE ASSE SSEE AND MADE AN ADDITION OF RS. 1,67,989/- IN ASSESSMENT YEAR 2007- 08 AND RS. 95,000/- IN ASSESSMENT YEAR 2008-09. 7. THE ASSESSEE AGITATED THE ADDITIONS BEFORE THE L D. CIT(A) BUT WITHOUT ANY SUCCESS. 8. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE STAT ED THAT IN THIS LINE OF CLANDESTINE ACTIVITIES, THE PERSON WHO IS G IVING ACCOMMODATION 4 BILLS EARNS COMMISSION RANGING FROM 15P TO 50P, AND , THEREFORE, THE ESTIMATION MADE BY THE ASSESSING OFFICER IS ON THE HIGHER SIDE. 9. THE LD. DR STRONGLY SUPPORTED THE FINDINGS OF TH E LOWER AUTHORITIES. 10. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE O RDERS OF THE AUTHORITIES BELOW. THE UNDISPUTED FACT IS THAT THE ASSESSEE WAS FOUND TO BE ENGAGED IN ISSUING ACCOMMODATION BILLS. IT I S ALSO NOT IN DISPUTE THAT THE ASSESSEE HAS BEEN GIVING ACCOMMODATION BIL LS ONLY TO RAHEJA GROUP. IT IS ALSO NOT IN DISPUTE THAT WHILE MAKING ESTIMATION OF 1%, THE ASSESSING OFFICER HAS NOT BROUGHT ANY COMPARABLE CA SE ON RECORD. IT IS EQUALLY TRUE THAT IN SUCH CLANDESTINE ACTIVITIES, C OMMISSION RANGES FROM 15P TO 50P. 11. IN OUR CONSIDERED OPINION, AN ESTIMATION OF ADD ITION @ 35P SHOULD MEET THE ENDS OF JUSTICE. WE, ACCORDINGLY, DIRECT THE ASSESSING OFFICER TO MAKE ADDITION TAKING 35P AS ESTIMATED RA TE OF COMMISSION EARNED BY THE ASSESSEE. IN BOTH THE QUANTUM APPEAL S, THE ASSESSEE WILL GET PART RELIEF. 5 12. THE OTHER ADDITION RELATES TO THE ESTIMATION OF 1% AS INCOME MADE ON THE BASIS OF VAT RETURNS. 13. WE ARE OF THE CONSIDERED OPINION THAT ONCE THE ENTIRE SALE BILLS HAVE BEEN TREATED AS BILLS FOR PROVIDING ACCOMMODAT ION ENTRIES AND ON WHICH AN ESTIMATED PROFIT HAS ALREADY BEEN TAXED, T HE SAME AMOUNT CANNOT BE TAKEN FOR DOUBLE ADDITION ON THE BASIS OF VAT RETURNS. THE ASSESSING OFFICER, ACCORDINGLY, IS DIRECTED TO DELE TE THE IMPUGNED ADDITION. 14. COMING TO THE PENALTY APPEALS, THOUGH THE LD. C IT(A) HAS DISMISSED THE APPEALS OF THE ASSESSEE IN LIMINE, WI THOUT CONSIDERING THE MERITS/DEMERITS OF THE ADDITION, WE ARE OF THE CONSIDERED VIEW THAT THE QUANTUM ADDITIONS HAVE BEEN ESTIMATED BY T HE ASSESSING OFFICER WHICH HAVE BEEN FURTHER REDUCED BY ESTIMATI ON BY US [SUPRA]. THEREFORE, IN OUR CONSIDERED OPINION, THESE ARE NOT FIT CASES FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. WE, ACCORDINGLY, DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY SO LEVIED. 6 15. IN THE RESULT, THE APPEALS OF THE ASSESSEE IN ITA NOS. 6348 & 6349/DEL/2017 ARE PARTLY ALLOWED AND THE APPEALS OF THE ASSESSEE IN ITA NOS. 2254 & 2259/DEL/2017 ARE ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 24.09 .2019. SD/- SD/- [SUDHANSHU SRIVASTAVA ] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 24 TH SEPTEMBER, 2019 VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI 7 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER