TOLCHAND G. RANKA, MUMBAI V. ITO RG 20(1)(1), MUMBAI

ITA 3250/MUM/2015

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 3049 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2015
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 28-05-2015
• Court: TRIBUNAL
• Department Lawyers: NEELIMA V NADKARNI
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER ITA NO.3250/M/2015 (AY 2006 - 2007) ITA NO.3251 /M/2015 (AY 2007 - 2008 ) ITA NO.3252 /M/2015 (AY 2008 - 2009 ) ITA NO.3253 /M/2015 (AY 2009 - 2010 ) ITA NO.3254 /M/2015 (AY 2010 - 2011 ) TOLCHAND G. RANKA, B - 204, PAWAPURI APARTMENTS, 85 - 87 SETH MOTHISHA LANE, MAZAGAONE, MUMBAI - 400 010. / VS. ITO 20(1)(1), MUMBAI. ./ PAN : AAPCS1739N ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : NONE (WRITTEN SUBMISSIONS) / RESPONDENT BY : MS. NEELIMA V. NADKARNI, DR / DATE OF HEARING : 26.8 .2015 / DATE OF PRONOUNCEMENT : 16 .10 .2015 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE FIVE APPEALS UNDER CONSIDERATION. ALL THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST THE DIFFERENT ORDERS OF THE CIT (A) - 32, MUMBAI COMMONLY DATED 19.3.2015. SINCE, THE ISSUE RAISED IN ALL THESE APPEALS IS IDENTICAL, THEREFORE, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED, HEARD TOGETHER AND DISPOSED OF IN THIS CONSOLIDATED ORDER. APPEAL WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAGRAPHS OF THIS ORDER. ITA NO.3250/M/2015 (AY 2006 - 2007) 2. THIS APPEAL FILED BY THE ASSESSEE ON 28.5.2015 IS AGAINST THE ORDER OF THE CIT (A) - 32, MUMBAI DATED 19.3.2015 FOR THE AY 2006 - 07. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING SOLITARY GROUND WHICH READS AS UNDER: 2 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT (A) HAS ERRED IN CONFIRMING THE DECISION OF THE ASSESSING OFFICER PASSING THE ORDER U/S 143(3) R.W.S 147 OF THE INCOME TAX ACT, 1961 BY ESTIMATING THE TOTAL COMMISSION INCOME ON CASH T RANSACTIONS @ 5.5% WITHOUT ANY BASIS UNDER THE PRETEXT OF MARKET INFORMATION WITHOUT CORROBORATIVE EVIDENCE AS AGAINST @ 0.70% IRRESPECTIVE OF THE FACT AND SUBMISSIONS MADE DURING THE ASSESSMENT AND APPELLATE PROCEEDINGS THAT THE ACTUAL COMMISSION CHARGED WAS ONLY 0.70% AND THE SAME WAS OFFERED TO TAX. 3. BRIEFLY STATED RELEVANT FACTS OF THE CASE, PERTAINING TO THE AY 2006 - 07, ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME DECLARING THE TOTAL INCOME OF RS. 87,534/ - WHICH INCLUDE THE COMMISSION INCOME @ 0.70% EARNED BY THE ASSESSEE ON THE CASH TRANSACTIONS. THE CASE WAS REOPENED BY ISSUING NOTICE U/S 148 OF THE ACT AND ACCORDINGLY AO COMPLETED THE ASSESSMENT U/S 143(3) R.W.S 147 OF THE ACT DETERMINING THE ASSESSED INCOME AT RS. 4,94,481/ - . IN THE ASSESS MENT AO MADE ADDITION OF RS. 4,06,947/ - ESTIMATING THE TOTAL COMMISSION INCOME ON CASH TRANSACTIONS @ 5.5% AGAINST 0.70% CLAIMED BY THE ASSESSEE. AGGRIEVED WITH THE SAID ADDITION MADE BY THE AO ON AD - HOC BASIS, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 4. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, CIT (A) UPHELD THE AO DECISION AND DISMISSED THE APPEAL. AGAIN AGGRIEVED WITH THE SAID DECISION OF THE CIT ( A), ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL BY RAISING THE ABOVE SOLITARY GROUND. 5. DURING THE PROCEEDINGS BEFORE THE TRIBUNAL, NONE APPEARED ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE. ON PERUSAL OF THE RECORD, I FIND THE ASSESSEES LETTE R DATED 25.8.2015, WHEREIN IS THE MENTIONED THAT THE TRIBUNAL , IN THE ASSESSEES OWN CASE FOR THE AY 2011 - 12 IN APPEAL ITA NO.3255/MUM/2015 , HAS DECIDED AN IDENTICAL ISSUE AND THE ASSESSEE HAS NO OBJECTION IF THE SAME RATIO APPLIED TO THE PRESENT APPEALS UNDER CONSIDERATION. 6. ON THE OTHER HAND, LD DR FOR THE REVENUE RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 7. I HAVE HEARD LD DR FOR THE REVENUE AND PERUSED THE WRITTEN SUBMISSIONS OF THE ASSESSEE, ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED DECISION OF THE 3 TRIBUNAL IN THE ASSESSEES OWN CASE (SUP RA) FOR THE AY 2011 - 2012. ON PERUSAL OF THE SAID TRIBUNALS ORDER (SUPRA) , I FIND THERE IS NO CHANGE IN FACTS OF THE PRESENT CASE AND THAT OF THE ASSESSEES CASE FOR THE AY 2011 - 2012. IN SUCH CIRCUMSTANCES , I AM OF THE OPINION THAT THE DECISION OF THE TRIBUNAL FOR THE AY 2011 - 2012 IS SQUARELY APPLICABLE TO THE PRESENT CASE TOO. FOR THE SAKE OF COMPLETENESS OF THIS ORDER, THE RELEVANT PARA 5 OF THE ABOVE CITED TRIBUNALS ORDER (SUPRA) IS EXTRACTED AS UNDER: 5. .................. THE ISSUE UNDER CONSIDERATION IS RELATED TO THE RATE OF COMMISSION THAT COULD HAVE BEEN RECEIVED BY THE ASSESSEE. WE NOTICE THAT BOTH THE ASSESSEE AS WELL AS THE REVENUE COULD NOT SUBSTANTIATE THEIR RESPECTI VE CLAIM OF RATE OF COMMISSION. UNDER THESE SET OF FACTS, THE PRESENT ISSUE COULD BE RESOLVED BY FOLLOWING A VIA MEDIA APPROACH. ACCORDINGLY, WE ARE OF THE VIEW THAT THIS ISSUE WOULD MEET THE ENDS OF JUSTICE, IF THE RATE OF COMMISSION EARNED BY THE ASSE SSEE IS ESTIMATED AT 2.5% OF THE AGGREGATE AMOUNT OF CASH DEPOSITS. WE ORDER ACCORDINGLY. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD CIT(A) AND DIRECT THE AO TO DETERMINE THE ADDITION BY TAKING THE RATE OF COMMISSION AT 2.5%. 8. I , RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE TRIBUNAL FOR THE AY 2011 - 12 AND IN THE ABSENCE OF ANY CORROBORATIVE MATERIAL TO SUBSTANTIATE THE DECISION OF THE REVENUE AUTHORITIES IN ADOPTING 5.5% AS AN APPLICABLE THE RATE OF COMMISSION , DIRECT THE AO TO DETERMINE THE ADDITION BY TAKING THE RATE OF COMMISSION AT 2.5% INSTEAD OF 5.5% WHICH, IN MY OPINION, WILL MEET THE ENDS OF JUSTICE. ACCORDINGLY, GROUND RAISED BY THE ASSESSEE IS PARTLY ALLOWED . ITA NO.3251 /M/2015 (AY 2007 - 2008 ) ITA NO.3252 /M/2015 (AY 200 8 - 2009 ) ITA NO.3253 /M/2015 (AY 2009 - 2010 ) ITA NO.3254 /M/2015 (AY 2010 - 2011 ) 9. THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST THE DIFFERENT ORDERS OF THE CIT (A) - 32, MUMBAI COMMONLY DATED 19.3.2015. IN ALL THESE APPEALS, ASSESSEE RAISED THE IDENTICAL ISSUE TO THAT OF THE ONE RAISED IN ITA NO.3251/M/2015, WHICH IS ADJUDICATED BY ME IN THE ABOVE PARAGRAPHS OF THIS ORDER. SINCE, THE I SSUE RAISED IN ALL THESE APPEALS IS IDENTICAL IE DETERMINATION OF THE RATE OF COMMISSION , MY ADJUDICATION GIVEN IN ASSESSEES APPEAL FOR THE AY 2006 - 07 SQUARELY APPLIES TO THE PRESENT APPEALS TOO. CONSIDERING THE SAME, WE DIRECT THE AO TO DETERMINE THE RA TE OF COMMISSION @ 2.5% INSTEAD OF 5.5%. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE IN ALL THESE APPEALS ARE PARTLY ALLOWED. 4 10. IN THE RESULT, ALL THE FIVE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COU RT ON 1 6 T H OCTOBER, 2015. S D / - (D. KARUNAKARA RAO) ACCOUNTANT MEMBER MUMBAI ; 1 6 .10 .2015 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI