Sh. Rajeev Kumar Gupta, Ghaziabad V. DCIT, New Delhi

ITA 3468/DEL/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97879 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC 2
• Next Hearing Date: 25-08-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 29-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANIMA BARNWAL
• Section: 143(3); 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC-2 NEW DELHI) BEFORE SHRI I.C. SUDHIR: HONBLE JUDICIAL MEMBER ITA NO. 3468/DEL/2015 ASSESSMENT YEAR: 2010-11 RAJEEV KUMAR GUPTA, VS. DCIT, 5,127, IST FLOOR, CENTRAL CIR.11, VAISHALI, NEW DELHI. GHAZIABAD. (PAN: AFCPG5006P) (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI ANIL KUM AR JAIN, CA DEPARTMENT BY: SMT. ANIMA BARNW AL, JCIT DATE OF HEARING : 25.08.2015 DATE OF PRONOUNCEMENT: 20 :11.2015 ORDER THE ASSESSEE HAS QUESTION FIRST APPELLATE ORDER ON THE FOLLOWING GROUNDS: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND THE PROVISION OF LAW, THE LEARNED CIT(APPEALS) HAS FAI LED TO APPRECIATE THAT THE IMPUGNED ORDER PASSED UNDER SEC . 143(3) OF THE INCOME-TAX ACT, 1961 IS ILLEGAL, BAD IN LAW, WITHOU T JURISDICTION AND CONTRARY TO THE FACTS. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND THE PROVISION OF LAW, THE LEARNED CIT(APPEALS) HAS FAI LED TO APPRECIATE THAT THE NOTICE ISSUED U/S. 143(2) IS IL LEGAL, BAD IN LAW, AND THUS TIME BARRED AND CONSEQUENTLY ASSESSMENT FR AMED BECOMES ILLEGAL. 2 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND THE PROVISION OF LAW, THE LEARNED CIT(APPEALS) HAS ERR ED IN SUSTAINING AN ADDITION OF RS.1,07,500 AS COMMISSION INCOME BY WAY OF APPLYING RATE OF 1.25% ON THE GROSS AMOUNT O F ALLEGED ACCOMMODATION ENTRY. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE A.O. HAS ERRED IN LAW IN INITIATING THE PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE INCOME-TAX ACT, 1961. 5. THAT THE LD. A.O. HAS ERRED IN LAW IN CHARGING OF I NTEREST U/S. 234B OF THE I.T. ACT. 2. GROUND NOS. 1 AND 2 : HAVING CONSIDERED THE ARGUMENTS ADVANCED BY THE PARTIES, I DO NOT FIND SUBSTANCE ON THE ISSUE R AISED IN GROUND NOS. 1 AND 2 THAT THE ASSESSMENT FRAMED UNDER SEC. 143(3) OF THE INCOME-TAX ACT, 1961 IS INVALID AND THE NOTICE ISSUED UNDER SEC. 143(2) OF THE ACT IS BARRED BY TIME LIMITATION. THE ASSESSMENT HAS BEEN FRAMED AND THE ADDITION OF RS.1,07,500 IN QUESTION AS COMMISSION WILL COME HAS BEEN MADE B Y THE ASSESSING OFFICER ON THE BASIS OF STATEMENT OF ASSESSEE RECOR DED ON THE DATE OF SURVEY WHEREIN HE HAS ADMITTED THAT HE IS PART OF THE ACCO MMODATION ENTRY BUSINESS. NOTICE UNDER SEC. 143(2) OF THE ACT ISSUED ON 11.7 .2011 TO THE ASSESSEE WAS ALSO IN TIME AS FROM THE DUE DATE OF FILING OF THE RETURN BEING 31.7.2010, ONE YEAR TIME WAS AVAILABLE WITH THE ASSESSEE THERE FRO M FOR ISSUANCE OF NOTICE UNDER SEC. 143(2) OF THE ACT I.E. 31.7.2011 WHEREAS IN THE PRESENT CASE, THE 3 NOTICE HAS BEEN ISSUED ON 11.7.2011 TO THE ASSESSEE WHICH IS WELL WITHIN THE PRESCRIBED TIKE LIMIT. THE GROUND NOS. 1 AND 2 ARE ACCORDINGLY REJECTED. 3. IN GROUND NO.3, THE ASSESSEE HAS QUESTIONED THE SUSTAINING OF ADDITION OF RS.1,07,500 AS COMMISSION INCOME BY WAY OF APPLY ING RATE OF 1.25% ON THE GROSS AMOUNT OF ALLEGED ACCOMMODATION ENTRY. 4. HAVING GONE THROUGH THE ORDERS OF THE AUTHORITIE S BELOW, I FIND THAT THE RATE OF 1.25% ON THE GROSS AMOUNT OF CREDITS HA S BEEN APPLIED ON THE BASIS OF STATEMENT OF SHRI RAJIV GUPTA AND SHRI GAJ ENDER TYAGI THAT COMMISSION AT THE RATE OF 15 TO 20 PAISE PER HUNDRE D IS CHARGED AS WELL AS KEEPING IN VIEW THE VARIATIONS IN THE RATE OF COMMI SSION CHARGED FROM DIFFERENT PERSONS/ENTITIES APPEARING IN THE BANK AC COUNT OF MOTTO SOFTTECH PVT. LTD. AND EASEL SOFTTECH PVT. LTD. FOR THE SAME PERIOD. FURTHER IN THE CASE OF SHRI GAJENDER TYAGI AND SHRI RAJ KUMAR TIWARI, T HE ADDITION ON ACCOUNT OF COMMISSION @ 1.25% HAS NOT BEEN QUESTIONED BEFOR E THE LEARNED CIT(APPEALS). IN ABSENCE OF REBUTTAL OF THIS, THE MATERIAL FACT NOTED BY THE ASSESSING OFFICER, I DO NOT FIND REASON TO INTERFER E WITH THE FIRST APPELLATE ORDER UPHOLDING THE ADDITION NOR IT CAN BE SAID THA T THE APPLICATION OF RATE OF 4 1.25% ON THE GROSS AMOUNT OF ALLEGED ACCOMMODATION ENTRY WAS EXCESSIVE. THE GROUND NO. 3 IS ACCORDINGLY REJECTED. 5. IN GROUND NO.4, HAS BEEN QUESTIONED THE INITIATI ON OF PENALTY PROCEEDINGS UNDER SEC. 271(1)(C) OF THE ACT, WHICH IS PREMATURE AT THIS STAGE AND HENCE DOES NOT MEET ADJUDICATION. 6. IN GROUND NO. 5, HAS BEEN QUESTIONED THE CHARGIN G OF INTEREST UNDER SEC. 234B OF THE INCOME-TAX ACT, 1961, WHICH IS CON SEQUENTIAL IN NATURE AND DOES NOT NEED INDEPENDENT ADJUDICATION. 7. IN RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.11.2015 SD/- ( I.C. SUD HIR ) JUDICIAL MEMBER DATED: 20 /11/2015 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR 5 DATE DRAFT DICTATED ON COMPUTER 20.11.2015 DRAFT PLACED BEFORE AUTHOR 20.11.2015 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS 20 .11.201 5 KEPT FOR PRONOUNCEMENT ON 20.11.2015 FILE SENT TO THE BENCH CLERK 20.11.2015 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.