MAYUR JAIN, MUMBAI V. ITO 20(2)(2), MUMBAI

ITA 3367/MUM/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9881 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 03-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: H N SINGH
• Assessee Lawyers: DR P DANIAL
• Keywords: Income from undisclosed sources; Peak credit; Source of fund; Additional evidence; Corroborative evidences; Accommodation entries
• Section: 143(3); 142(1); 131; 69

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH , JM AND SHRI RAJESH KUMAR, AM ITA NO. 3367 / MUM/ 20 1 5 ( / ASSESSMENT YEAR: 2 0 10 - 11 ) MAYUR JAIN, 1101, CHAITYA T OWER, 81, SHIVDAS CHAPSI MARG, MAZGAON, MUMBAI - 4000 10 / VS. INCOME TAX OFFICER - 20 ( 2 )( 2 ), ROOM NO.119, 2 ND FLOOR, PIRAMAL CHAMBEERS, LALBAUG, MUMBAI - 400012 PAN:AEGPJ1871E ( / APPELLANT) : ( / RESPONDENT ) ITA NO. 336 8 / MUM/ 2015 ( / ASSESSMENT YEAR: 2 010 - 11 ) DEENDAYAL GUPTA, 4/7, HIRA SHETH CHWAL, WARAS LANE, WORLI, KOLIWADA, MUMBAI - 400030 / VS. INCOME TAX OFFICER - 20(1)(4), 2 ND FLOOR, PIRAMAL CHAMBEERS, LALBAUG, MUMBAI - 400012 PAN:AP VPG3225Q ( / APP ELLANT) : ( / RESPONDENT ) / ASSESSEE BY : DR.P.DANIAL / REVENUE BY : SHRI H N SINGH / DATE OF HEARING : 28 .6. .2017 / DATE OF PRONOUNCEMENT : 14. 7 . 201 7 2 ITA NO. 3367 AND 3368/ MUM/2015 / O R D E R PER RAJESH KUMAR, A. M: THE SE ARE THE TWO APPEALS FILED BY THE RESPECTIVE ASSESSEES AGAINST THE ORDER PASSED BY THE CIT(A) - , MUMBAI DATED 25.3.2015 AND 26.3.2015 RESPECTIVELY FOR THE ASSESSMENT YEAR 2010 - 11 . SINCE THESE APPEALS RELATES TO ADDITIO N U/S 69 OF THE ACT WITH IDENTICAL FACTS , THEY ARE CLUBBED , HEARD TOGETHER AND BEING DISPOSED OF BY THIS COMMON ORDER. ITA NO. 3367 /MUM/2015 2. GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE AS UNDER : 1. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADD ITION MADE OF RS. 11 ,30,61,277/ - U/S.69 OF THE ACT IN RESPECT OF CASH DEPOSITED IN BANK WITHOUT APPRECIATING THE FACT THAT THE CASH DEPOSITED BELONGED TO VARIOUS THIRD PARTIES AND WERE ACCOMMODATED BY GIVING CHEQUE AGAINST CASH RECEIVED FROM THEM AND DEPOSI TED IN BANK ACCOUNTS AND HENCE, THE ADDITION MADE U/S.69 OF THE ACT OFRS.11,30,61,277/ - IS UNJUSTIFIED AND MAY BE DELETED. 2. THE LD. CIT(A) IN PARA 4.10 OF THE ORDER HAS GIVEN CATEGORICAL FINDING THAT THE APPELLANT WAS INDULGED IN GIVING ACCOMMODATION E NTRIES AND INSPITE OF THIS, THE HUGE ADDITION CONFIRMED OF RS.LL,30,61,277/ - U/S.69 OF THE ACT ON THE GROUND OF FAILURE TO EXPLAIN SOURCE OF CASH DEPOSITS IN THE BANK ACCOUNTS IS WITHOUT ANY JUSTIFICATION AND LIABLE TO BE DELETED. 3. THE LD. CIT(A) FAILE D TO APPRECIATE THAT ONE OF THE PARTIES TO WHOM SUMMONS WAS ISSUED BY THE AO IN THE COURSE OF ASSESSMENT PROCEEDINGS HAD FINALLY AGREED IN THE STATEMENT RECORDED BY THE AO THAT CASH WAS GIVEN TO THE APPELLANT AND AFTER DEDUCTING COMMISSION @RS.200/ - PER LA KH THE BALANCE AMOUNT WAS GIVEN BACK BY CHEQUE THEREBY ESTABLISHING THE MODUS OPERANDI OF THE APPELLANT AND HENCE, 3 ITA NO. 3367 AND 3368/ MUM/2015 THE HUGE ADDITION MADE OF RS.11,30,61,277/ - U/S.69 OF THE ACT IS WITHOUT ANY JUSTIFICATION AND LIABLE TO BE DELETED. 4. THE LD. CIT(A) FAIL ED TO APPRECIATE THAT THE APPELLANT HAD FURNISHED ALL THE DETAILS IN HIS POSSESSION AND REQUESTED THE AO I CIT(A) TO ISSUE SUMMONS AND MAKE INVESTIGATION I VERIFICATION OF ALL THESE TRANSACTIONS, HOWEVER, THE LOWER AUTHORITIES HAVE FAILED TO ISSUE SUMMONS TO THE PARTIES AND VERIFY THE TRANSACTIONS AND HENCE, THE HUGE ADDITION MADE OFRS.11,30,61,277/ - U/S.69 OF THE ACT IS WITHOUT ANY JUSTIFICATION AND LIABLE TO BE DELETED. 5. THE LD. CIT(A) FAILED TO APPRECIATE THAT NO CONTRARY STAND WAS TAKEN BY THE APPEL LANT AND THERE IS NO OTHER CASE AGAINST THE APPELLANT BY ANY OF THE OTHER AUTHORITIES AND THUS, THE OBSERVATION MADE IN PARA 4.11 OF THE ORDER IS CONTRARY TO THE FACTUAL POSITION AND THEREFORE THE ADDITION CONFIRMED OF RS.11,30,61,277/ - U/S.69 OF THE ACT I S WITHOUT ANY JUSTIFICATION AND LIABLE TO BE DELETED. 3. ONLY ISSUE RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL NO 1 TO 5 IS AGAINST THE CONFIRMATION OF ADDITION OF RS.11,30,61,277/ - BY THE LD.CIT(A) AS MADE BY THE AO U/S 69 OF THE INCOME TAX A CT, 1961 TOWARDS CASH DEPOSITED IN THE BANK DURING THE YEAR ON VARIOUS DATES . 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME ON 23.3.2011 DECLARING TOTAL INCOME OF RS.4, 58,610 / - WHICH WAS PROCESSED UNDER SECTION 143(1) OF THE ACT. THEREAFTER THE CASE OF THE ASSESSEE WAS SELECTED UNDER CASS AND STATUTORY NOTICES U/S 143(2) AND 142(1) WERE ISSUED AND SERVED UPON THE ASSESSEE. THE AO ON THE BASIS OF AIR INFORMATION FOUND THAT THE ASSESSEE HAVE DEPOSITED A HUGE CASH OF 4 ITA NO. 3367 AND 3368/ MUM/2015 RS.4 ,87,01,000/ - IN HIS SAVING BANK ACCOUNT WITH ICICI BANK LTD BEARING ACCOUNT NO.107101501161. THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS ALSO FOUND THAT THE AS SESSEE HAS ANOTHER BANK CURRENT ACCOUNT BEARING NO.107105000223 WHEREIN TOTAL CASH DEPO SITS OF RS.5,98,05,909 / - WAS MADE ON VARIOUS DATES DURING THE YEAR. BOTH THE S E ACCOUNTS WERE FOUND TO BE NOT DISCLOSED BY THE ASSESSEE IN THE RETURN OF INCOME FILED BY THE ASSESSEE FOR THE YEAR AND ACCORDINGLY , THE ASSESSEE WAS ASKED TO EXPLAIN AND JUS TIF Y THE CASH DEPOSITS MADE INTO THESE BANK ACCOUNTS. FROM THE DETAILS FILED BY THE ASSESSEE BEFORE THE AO, IT WAS OBSERV ED BY THE AO THAT THE ASSESSEE,S MODUS OPERANDI WAS TO DEPOSIT CASH IN THESE BANK ACCOUNT AND THEREAFTER CHEQUES WERE USED TO BE ISS UED TO VARIOUS PARTIES AS MENTIONED IN THE BANK STATEMENT S . THE AO ALSO RECORDED THE STATEMENT OF THE ASSESSEE U/S 131 OF THE ACT ON 29.1.2013. THE ASSESSEE ADMITTED BEFORE THE AO , IN THE STATEMENT RECORDED U/S 131 OF THE ACT THAT HE WAS OPERATING AS HAWALA OPERATOR AND USED TO ACCEPT CASH FROM THE PARTIES AND ISSUE CHEQUES OR PAYMENT BY RTGS TO THE SAID PARTIES AFTER COMMISSION AT THE RATE OF 200 TO 300 PER LAKH . THE AO ULTIMATELY REJECTED THE CONTENTION OF THE ASSESSEE ON THE GROUND THAT THE AS SESSEE COULD NOT FURNISH NAMES AND ADDRESSES OF ALL THE 52 PARTIES TO WHOM THE MONEY WAS REMITTED THROUGH RTGS OR BY CHEQUES 5 ITA NO. 3367 AND 3368/ MUM/2015 AND ADDED THE TOTAL CASH DEPOSITED IN BOTH ACCOUNT S UNDER SECTION 69 OF HE ACT BY FRAMING THE ASSESSMENT U/S 143(3) OF THE ACT B Y ASSESSING THE TOTAL INCOME OF THE ASSESSEE AT RS.11,35,19,890/ - . 5 . AGGRIEVED BY THE ORDER OF THE AO , THE ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY WHO ALSO DISMISSED THE APPEAL OF THE ASSESSEE BY OBSERVING AND HOLDING AS UNDE R ( 4.8 TO 4.11 ): 4. 8. I HAVE CAREFULLY CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE. DUE TO ADDITIONAL EVIDENCES BEING FILED BEFORE ME FOR THE FIRST TIME, I REMANDED THE MATTER TO THE FILE OF THE A.O. 4.9. THE A.O. VIDE REMAND REPORT DATED 07.10 .2014 OBSERVED THAT THE APPELLANT HAD FAILED TO PROVE THE SOURCE OF THE CASH DEPOSITED IN HIS BANK ACCOUNT. THE ONUS SQUARELY LIES WITH THE APPELLANT TO PROVE THE GENUINENESS OF THE CASH DEPOSITS. EVEN IN REMAND PROCEEDINGS, NO EVIDENCE WAS FILED AS TO GEN UINENESS OF CASH DEPOSITS. 4.10. IN THE PRESENT CASE, THE APPELLANT HAS ADMITTED ON AFFIDAVIT THAT HE WAS ACTING AS A HAWALA OPERATOR. HE WAS ACCEPTING CASH FROM VARIOUS PARTIES WITHOUT ENQUIRING INTO THEIR NAMES/ADDRESSES/SOURCE OF FUNDS AND WAS ISSUING CHEQUE OF EQUIVALENT AMOUNT. IN OTHER WORDS, HE WAS CONVERTING BLACK MONEY INTO WHITE IN LIEN OF A COMMISSION OF 0.2% - 0.1%. HE WAS EFFECTIVELY CARRYING OUT MONEY LAUNDERING ACTIVITIES BY WAY OF ACCOMMODATION ENTRIES. NOT ONLY HAS THE APPELLANT CONTRAVENE D THE LAW OF THE LAND, HE HAS ALSO CONTRAVENED THE INCOME - TAX AC T. 4.11. THE APPELLANT HAS NOT BEEN ABLE TO EXPLAIN THE SOURCE OF CASH DEPOSITS IN HIS BA NK ACCOUNT. THE CLAIM THAT THE CASH DEPOSITED BELONGS TO OTHER PARTIES TO WHOM CHEQUES WERE ISSUED IS NOT CORROBORATED BY PRODUCTION OF ANY SUPPORTING EVIDENCE. THE CASH DEPOSITED IN HIS BANK ACCOUNT THEREFORE REMAINS UNACCOUNTED. THE APPELLANT HAS GIVEN ADDRESSES OF ONLY 7 PARTIES OUT OF 52 PARTIES. EVEN CONFIRMATIONS OF THESE PARTIES ARE NOT AVAILABL E. THE APPELLANT 6 ITA NO. 3367 AND 3368/ MUM/2015 HAS MADE A SELF SERVING STATEMENT BEFORE INCOME TAX AUTHORITIES THAT HE WAS RECEIVING CASH AND ISSU ING CHEQUES WHICH IS CONTRARY TO HIS STAND BEFORE MONEY LAUNDERING AUTHORITIES. ON ONE HA ND BEFORE THE INCOME TAX AUTHORITIES THE APPELLAN T IS CONFESSING TO HIS MONEY LAUNDERING ACTIVITIE S BUT ON THE OTHER HAND' BEFORE OTHER AUTHORITIES HE IS DENYING IT. SINCE THE CASH DEPOSITED IS UNE XPLAINED, THE SAME IS TO BE TREATED AS HIS UNACCOUNTED INCOME. TH US, THE ADDITION MADE BY THE AO U/S 69 OF THE ACT ON ACCOUNT OF UNACCOUNTED CASH OF RS.11,30,61,277/ - IS CONFIRMED. HENCE, THESE GROUNDS OF APPEAL ARE DISMISSED. 6 . THE LD. AR VEHEMENTLY ARGUED BEFORE US THAT THE ASSESSEE WAS INVOLVED IN THE BUSINESS OF PROVIDING HAWALA OPERATION AND WAS REC EIVING CASH FROM VARIOUS PARTIES , DEPOSITING THE SAME INTO HIS BANK ACCOUNTS AND IMMEDIATELY RETURNING THE AMOUNT BY CHE QUES OR BY RTGS AFTER DEDUCTING H IS COMMISSION AT THE RATE OF 200 TO 300 PER LAKH AND THUS CHARGING ONLY 0.2 TO 0.3 % COMMISSION FOR THE HAWALA TRANSACTIONS WHICH HAS BEEN ADMITTED BY THE ASSESSEE EVEN AT THE TIME OF STATEMENT OF THE ASSESSEE RECORDED U/S 131 OF THE ACT . THE LD. AR ADMITTED THAT THOUGH THE THE BANK ACCOUNTS MAINTAINED WITH ICICI BANK WERE NOT DISCLOSED IN THE RET URN OF INCOME FILED BY T HE ASSESSEE BUT UNDISPUTED FACTS OF THE CASE ARE THAT THE CASH DEPOSITED BY THE IN THE BANK ACCOUNTS D ID NOT BELONG TO ASSESSEE BUT TO THOSE PERSONS IN WHOSE FAVOUR THE MONEY W AS TRANSFERRED BY WAY OF RTGS OR CHEQUE. THE LD. A R SUBMITTED BEFORE US THAT EVEN THE LD.CIT(A) HAS ADMI TT ED AND RECORDED THE FINDING OF THE SAID 7 ITA NO. 3367 AND 3368/ MUM/2015 FACTS IN PARA 4.10 OF THE APPEAL ORDER THAT THE ASSESSEE WAS CARRYING OUT MONEY LAUNDERING ACTIVITIES AS COMMISSION AGENT ON COMMISSION BASIS . THE LD. AR FUR THER STATED THAT IT WA S THE INCOME OF THE ASSESSEE WHICH WAS TO BE ASSE SS ED UNDE R THE INCOME TAX ACT AND NOT THE GROSS TRANSACTIONS VALUE WHICH T HE ASSESSEE STATED IN THE ASSESSMENT PROCEEDINGS AS WELL AS IN THE APPELLATE PROCEEDING TO BE HAWALA TRANSACT IONS ON COMMISSION BASIS. THE LD. AR POINTED OUT THAT EVEN AT THE TIME OF STATEMENT RECO R DED U/S 131 OF THE ACT, THE ASSESSEE SUBMITTED BEFORE THE AO THAT HE WA S A HAWALA DEALER ENGAGED IN ACCEPTING CASH FROM PARTIES AND ISSUED RTGS IN THEIR FAVOUR AFTER DEDUCTING THE COMMISSION AT THE RATE OF 0 . 2 TO 0.3% OF THE TOTAL TRANSACTION AMOUNT . THE LD. COUNSEL SUBMI TT ED THAT THE ORDER PASSED BY THE LD.C IT(A) WAS COMPLETELY WRONG AND WA S AGAINST THE FACTS ON RECORD AFFIRM ING THE ADDITION TO THE TUNE OF RS.11,30,61,277/ - BEING THE TOTAL AMOUNTS OF CASH DEPOSITED INTO THE TWO BANK ACCOUNTS OF THE ASSESSEE . FINALLY, THE LD.AR PRAYED BEFORE THE BENCH THAT THE ADDITION AS MADE BY THE AO AND CONFIRMED BY THE LD.CIT(A) SHOULD BE DELETED AND ONLY REAL INC OME SHOULD BE BROUGHT TO THE TAX WHICH IS 0.2% TO 0.3% MINUS EXPENSES. THE LD. AR CITED A NUMBER OF DECISIONS IN SUPPORT OF HIS ARGUMENTS AS UNDER : I) M/S. GOLD STAR FINVEST (P.) LTD. V. I.T.O. (2013) 33 TAXMAN 129 (MUM. ITAT) 8 ITA NO. 3367 AND 3368/ MUM/2015 II) M / S. ALLIA NCE INTERMEDIATERIES & NETWORK P. LTD. V. A.C.I.1 ITA / 2700 TO 2701 / MUM/2 0 13 (MUM. ITAT) III) MR. MUKESH CHOKSI V. D.C.I.T. ITA / 833 TO 839 / MUM/2013 (MUM. ITAT) IV) M/S. GOLDSTAR FINVEST PVT. LTD. V. A.C.I.T. ITA / 2699/MUM/2013 (MUM. ITAT) V) M/S. KANAK STOCK BROKERS PVT. LTD. V. D.C.I.T. ITA / 309 & 310 / MUM / 2013 (MUM. ITAT) VI) M/S. TALENT INFOWAY LIMITED V. D.C.I.T. ITA / 7427 TO 7429 / MUM/2013 (MUM. ITAT) VII) M / S. DEEPANU STOCK BROKERS V. D.C.I.T. ITA / 324 & 325 / MUM/2013 (MUM. ITAT) VIII) M/S. ALEMBIC SECURITIES PVT. LTD. V. D.C.I.T. ITA/243 TO 245/MUM/2013 (MUM)ITAT 7 . THE LD. DR ON THE OTHER HAND OPPOSED THE ARGUMENTS OF THE LD. COUNSEL AND CONTENDED THAT THE ASSESSEE COULD NO T EXPLAIN THE SOURCE OF CASH DEPOSITS INTO HIS BANK ACCOUNT S BY FURNISHING THE NECESSARY DETAILS COMPRISING NAME AND ADDRESSE S OF THE PARITIES FROM WHOM HE ACCEPTE D THE C A SH . THE LD DR FURTHER STATED THAT THE AS S ES S EE ALSO CONCEALED THE SE BANK ACCOUNT BY NOT DISCLOSING THE SAME IN HIS RETURN OF INCO ME FILED. THE LD. DR SUBMITTED TH A T IN ABSENCE OF ANY CORROBORAT IVE MATERIALS OR CONFIRMATION OF THE THIRD PARTY, THE AO HAS RIGHTLY MADE THE ADDITION U/S 69 OF THE ACT WHICH WAS RIGHTLY UP HELD BY THE LD. CIT(A). THUS, THE LD. DR RELIED HEAVILY ON THE ORDERS OF AUTHORITIES BELOW AND REQUESTED THE BENCH TO UPHOLD THE SAME. 9 ITA NO. 3367 AND 3368/ MUM/2015 8 . WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL PLACED BEFORE US INCLUDING THE CASE LAW S RELIED UPON BY THE COUNSEL OF THE ASSESSEE. THE UNDISPUTED FACT S ARE THAT THE ASSESSEE WAS ENGAGED IN HAWALA B USINESS ACCEPTING THE CASH FROM VARIOUS PERSONS/PARTIES WHICH WAS DEPOSITED INTO TWO BANK ACCOUNT S OF THE ASSESSEE WITH ICICI AND THEREAFTER ISSUED CHEQUES AND TRANS FERRED MONEY BY WAY OF RTGS AFTER DEDUCTION OF COMMISSION AT THE RATE OF 0.2% TO 0.3% PER LAKH . T HE ASSESSEE WAS NOT MAINTAINING ANY RECORD S AS TO THE NAMES AND ADDRESSE S FROM WHOM HE ACCEPTED THE MONEY IN CASH AND ISSUED CHEQUES /RTGS AFTER DED UCTING THE COMMISSION AND THESE BANK ACCOUNTS WERE NOT SHOWN IN THE RETURN OF INCOME. THE ASSESSEE ALSO ADMITTED AND CLEARLY STATED IN THE ASSESSMENT PROCEEDINGS, THAT HE WAS OPERATING A HAWALA BUSINESS AND USE S TO ACCEPT THE CASH FROM VARIOUS PARTIES WHI CH WAS BELONGING TO THEM AND RETURNED THE MONEY BY CHEQUES / RTGS. THE LD. CIT(A) HAS ALSO RECORDED THE FINDING THAT THE ASSESSEE WAS ENGAGED IN THE MONEY LAUNDERING BUSINESS IN THE APPELLATE ORDER . FURTHER , AFTE R GOING THROUGH THE STATEMENTS OF TWO IMPUG NED BANK ACCOUNTS , WE ALSO OBSERVE THAT THERE WAS HARDLY ANY BALANCE LEFT IN THE BANK ACCOUNT S OF THE ASSESSEE AS THE MONEY WAS TRANSFERRED TO VARIOUS PARTIES AFTER DEDUCTION OF COMMISSION IMMEDIATELY AFTER DEPOSIT 10 ITA NO. 3367 AND 3368/ MUM/2015 INTO THE BANK ACCOUNTS . IN VIEW OF TH ESE FACTS, WE ARE OF THE VIEW THAT THAT THE CASH D EPOSITED INTO BANK ACCOUNT OF THE ASSESSEE CANNOT BE TREATED AS INCOME OF THE ASSESSEE IN TOTO . IT IS EQUIVOCALLY CLEAR THAT MONEY BELONG ED TO VARIOUS PARTIES IN WHOSE FAVOUR IT WAS TRANSFERRED BY WAY O F CHEQUE OR RTGS AND IT IS ONLY NET COMMISSION AFTER M AKING THE REPAYMENT WHICH THE ASSESSEE HAS EARNED WHICH IS APPARENT FROM THE BANK ACCOUNT S OF THE ASSESSEE AND ONLY THE SAID COMMISSION CAN BE BROUGHT TO TAX IN THE HANDS OF THE ASSESSEE . IT IS SETT LED POSITION BY THE DECISION OF THE CO - ORDINATE BENCH ES OF THE TRIBUNAL THAT IN THE CASE OF HAWALA OPERATORS IT IS ONLY THE INCOME ON THE PERCENTAGE I.E COMMISSION WHICH CAN BE ASSESSED IN THE HANDS OF THE AS SESSEE . IN THE CASE OF M /S. GOLD STAR FINVEST ( P.) LTD. (SUPRA), THE CO - ORDINATE BENCH ACCEPTED 0.15% COMMISSION. IN THE CASE OF M / S. ALLIANCE INTERMEDIATERIES & NETWORK P. LTD (SUPRA), THE CO - ORDINATE BENCH OF THE TRIBUNAL ACCEPTED 50% OF THE EXPENSES OUT OF 0.15% COMMISSION ON TOTAL DEPOSITS. IN TH E CASE OF MR. MUKESH CHOKSI (SUPRA), THE COORDINATE BENCH OF THE TRIBUNAL UPHELD THE COMMISSION AT THE RATE OF 0.15% OF THE TRANSACTIONS . 11 ITA NO. 3367 AND 3368/ MUM/2015 WE, THEREFORE RESPECTFULLY FOLLOWING THE RATIO LAID DOWN IN THE VARIOUS DECISION S AS DISCUSSED ABOVE, SET ASIDE THE ORDER OF T HE LD.CIT(A) AND DIRECT THE AO TO APPLY 0.3% OF TH E TOTAL CASH DEPOSITS . 9 . SINCE WE HAVE ALREADY DECIDED AND DIRECTED THE AO TO ASSESS THE INCOME BY MAKING ADDITIONS @ 0.3% OF THE TOTAL CASH DEPOSITS, THE ISSUE OF ASSESSING THE INCOME AT PEAK THEORY BEC OMES ACADEMIC. RESULTANTLY, THE APPEAL OF THE ASSESSEE STANDS PARTLY ALLOWED. ITA NO.336 8 /MUM/2015 10. THE FACTS OF THE CASE ARE IDENTICAL TO THAT OF ITA NO.3367/MUM/2015, ACCORDINGLY OUR DECISION IN ITA NO.3367/MUM/2015 WOULD , MUTATIS MUTA NDI , APPLY TO THIS APPEAL AS WELL. ACCORDINGLY, THE AO IS DIRECTED TO APPLY COMMISSION AT HE RATE OF 0.3% OF THE TOTAL CASH DEPOSITS IN THE BANK ACCOUNT S AND ASSESSEE THE INCOME ACCORDINGLY. 11 . IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEES ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14TH J ULY, 2017. SD SD ( MAHAVIR SINGH ) (RAJESH KUMAR) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 14. 7 .2017 SRL,SR.PS 12 ITA NO. 3367 AND 3368/ MUM/2015 / COPY OF THE ORDER FORWARDED TO : 1. / THE APP ELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, TRUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI