BIJAL A SHAH, MUMBAI V. DCIT -CC-2(1), MUMBAI

ITA 5967/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2101 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 18-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Keywords: Set aside
• Section: 133A; 147; 148; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH SMC, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NOS.5967, 5968 & 5969/M/2019 ASSESSMENT YEARS: 2011-12, 2012-13 & 2013-14 MR. BIJAL A. SHAH, 187/189, GURUKAL CHAMBER MUMBA DEVI ROAD, ZAVERI BAZAR, MUMBAI 400 002 PAN: AVZPS 0810J VS. DCIT-CC-2(1), 8 TH FLOOR, OLD CGO BUILDING, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI SASHI TULSIYAN, A.R. REVENUE BY : MS. SMITA VERMA, D.R. DATE OF HEARING : 22.06.2021 DATE OF PRONOUNCEMENT : 22.06.2021 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE ABOVE TITLED THREE APPEALS HAVE BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER EVEN DATED 28.06.2019 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER R EFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT YEAR 2011-12, 20 12-13 & 2013-14.SINCE THE ISSUE INVOLVED IN ALL THESE APPEA LS IS COMMON AND THEREFORE THESE ARE BEING DECIDED AND DISPOSED BY THE COMMON ORDER FOR THE SAKE OF CONVENIENCE. FIRST WE SHALL TAKE AY 2011-12. ITA NO.5967/M/2019 A.Y. 2011-12 2. THE ASSESSEE HAS CHALLENGED THE ORDER OF LD. CIT (A) ON LEGAL ISSUE AS WELL AS ON MERIT. AT THE TIME OF HEARING THE LEGAL ISSUE RAISED BY THE ASSESSEE WAS NOT ARGUED AND THEREFORE THE SAME IS DISMISSED AS NOT PRESSED. ITA NOS.5967, 5968 & 5969/M/2019 MR. BIJAL A. SHAH 2 3. THE SECOND ISSUE RAISED IS AGAINST THE CONFIRMAT ION OF ADDITION OF RS.24,904/- BY LD. CIT(A) AS MADE BY T HE AO TO THE INCOME OF THE ASSESSEE @ 0.13% BEING THE AMOUNT OF COMMISSION ON RS.1,91,57,153/- THE CASH TRANSACTIO NS DONE BY THE ASSESSEE WITH THE OTHER PARTIES. 4. THE FACTS IN BRIEF ARE THAT A SURVEY UNDER SECTI ON 133A OF THE ACT WAS CONDUCTED ON 14.01.2007 AT THE ASSESSEE S PREMISES IN WHICH THE ASSESSEE ADMITTED THAT HE HAS DONE SOM E CASH TRANSACTIONS WITH SOME PARTIES IN ORDER TO EARN SOM E COMMISSION. A STATEMENT UNDER SECTION 133 OF THE A CT WAS RECORDED FOR ALL THE FOUR YEARS COMMENCING FROM A.Y . 2010-11 TO 2013-14 AND THE CASES OF THE ASSESSEE WERE REOPENED U/S 147 R.W.S. 148 OF THE ACT AND ASSESSMENTS WERE FRAMED A CCORDINGLY. 5. AT THE OUTSET, THE LD. COUNSEL OF THE ASSESSEE S UBMITTED THAT THE ISSUE INVOLVED IN THE PRESENT APPEALS IS S QUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION O F THE CO- ORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CA SE IN ITA NO.4416/M/2018 A.Y. 2010-11 VIDE ORDER DATED 24.07. 2019 WHICH WAS ONE OF THE YEARS COVERED UNDER THE SURVEY AND SIMILAR ADDITION WAS MADE BY THE AO TOWARDS THE COMMISSION. THE LD. A.R. SUBMITTED THAT SINCE THE CO-ORDINATE BENCH OF THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY SETTING ASIDE THE ORDER OF LD. CIT(A) BY DIRECTING THE AO TO DELE TE THE ADDITION AS THESE WERE MERELY BASED ON ASSUMPTIONS, PRESUMPT IONS AND SURMISES AS STATEMENT OF THE ASSESSEE WHICH WAS RET RACTED BY FILING AN AFFIDAVIT DATED 24.01.2017. BESIDES, THE RE IS NO EVIDENCE BROUGHT ON RECORDS THE AO TO BACK THE ADD ITION. THE LD AR, THEREFORE, PRAYED THAT THE ADDITION IN THE C URRENT YEAR MAY KINDLY BE DELETED ACCORDINGLY. ITA NOS.5967, 5968 & 5969/M/2019 MR. BIJAL A. SHAH 3 6. THE LD. D.R., ON THE OTHER HAND, RELIED ON THE O RDER OF AUTHORITIES BELOW. 7. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD PARTICULARLY THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN ITA NO.4416/M/2018 A.Y. 2010-11 DATED 24.07.2019, WE FIND THAT THE SIMILAR ISSUE HAS BEEN DECIDED IN THE EARLIER YEAR THE OPERATIVE PART WHEREOF IS REP RODUCED AS UNDER: 3. I HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. I NOTED THAT A SURVEY ACTION U/S. 133A OF THE ACT, WAS CARRIED ON THE PREMISES OF THE ASSESSEE ON 14-01-2017. DURING THE SURVEY PROCEEDINGS THE ASSESSEE ADMITTED THAT HE HAS DONE CASH TRANSACTION S WITH SOME OF THE PARTIES TO RETAIN SOME ON COMMISSION, BUT LATER ON RETRACTED H IS TREATMENT STATING THAT THE STATEMENT TAKEN BY THE INVESTIGATING WING DURING SU RVEY WAS THROUGH COERCION AND THREAT. THE ASSESSEE FILED AN AFFIDAVIT ON 24-01-20 17 I.E. IMMEDIATELY AFTER THE SURVEY. THERE ARE VARIOUS ALLEGATIONS OF COERCION A ND THREAT AND COUNTER ALLEGATIONS BY BOTH THE SIDES. I AM NOT GOING TO ALL THESE ALLE GATIONS. BUT I HAVE GONE THROUGH THE ORDERS OF THE ASSESSING OFFICER AND THAT OF THE CIT(A). I ALSO HEARD BOTH THE SIDES NOW AND I AM OF THE VIEW THAT THE ASSESSING OFFICER HAS MERELY ESTIMATED THE COMMISSION INCOME @ 0.5% OF THE ALLEGED ENTRIES OF SALE AND PURCHASE OF RS. 1,52,11,694/-. THE ASSESSING OFFICER ESTIMATED THE COMMISSION AT RS.76,060/-. THE CIT(A) REDUCED THE ESTIMATION AT RS.20,000/- BY OBS ERVING AS UNDER:- 7.4 IN VIEW OF THE FACTS AS DISCUSSED ABOVE, THERE IS NO DISPUTE WITH E ENTRIES AMOUNTING TO RS.1,52,11,964/-. HOWEVER, TH E COMMISSION INCOME EARNED ON SUCH ENTRIES AS COMPUTED BY THE AO @ 0.5% AT RS.76,060/- IS WITHOUT ANY BASIS. IN THIS REGARD, THE ADMISSIONS A ND DISCLOSURES BY THE ASSESSEE AT THE TIME OF SURVEY IN REPLY TO QUESTION NO. 25 (AS POINTED OUT IN PARA 6.2.1(3) THAT HE HAS EARNED COMMISSION APPROXI MATELY AT RS.6,000/- PER RS. 1 CRORE OF TRANSACTION IS HELD TO BE MOST F AIR AND REASONABLE ESTIMATION IN THE ABSENCE OF ANY OTHER FAIR BASIS. HOWEVER, SINCE IT IS ONLY AN ESTIMATION, THE COMMISSION INCOME IS ESTIMATED AT R S. 20,000/- FROM SUCH BUSINESS OF COMMISSION. 4. FROM THE ABOVE, IT IS CLEAR THAT THERE IS NO BAS IS FOR ESTIMATING THE COMMISSION AND EVEN THE ALLEGED STATEMENT WAS RETRACTED BY THE ASSESSEE BY FILING THE SAID AFFIDAVIT ON 24-01-2017. THE PECULIAR NATURE OF THE CASE AND DUE TO SMALLNESS OF QUANTUM OF ADDITION, I AM OF THE VIEW THAT IN THE A BSENCE OF ANY EVIDENCES, THE ADDITION SO RESTRICTED BY CIT(A) IS HEREBY DELETED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ITA NOS.5967, 5968 & 5969/M/2019 MR. BIJAL A. SHAH 4 8. WE NOTE THAT IN THE SURVEY CONDUCTED ON 14.01.20 17 UNDER SECTION 133A ON THE BUSINESS PREMISES OF THE ASSESS EE 4 YEARS WERE COVERED I.E. A.Y. 2010-11 TO 2013-14. IN ALL THESE YEARS THE ADDITION WAS MADE TOWARDS COMMISSION ON CASH TRANSA CTIONS AS ADMITTED BY THE ASSESSEE DURING THE COURSE OF RECOR DING OF STATEMENT UNDER SECTION 133 OF THE ACT WHICH HAS BE EN RETRACTED SUBSEQUENTLY ON 24.01.2017. WE NOTE THAT THE CO-OR DINATE BENCH OF THE TRIBUNAL HAS ALREADY DECIDED THE APPEA L OF THE ASSESSEE IN A.Y. 2010-11 AS STATED ABOVE WHICH INVO LVED SIMILAR ISSUE. WE, THEREFORE, RESPECTFULLY FOLLOWING THE S AME, SET ASIDE THE ORDER OF LD. CIT(A) AND DIRECT THE AO TO DELETE THE ADDITION. 9. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOW ED. ITA NOS.5968 & 5969/M/2019 A.YRS: 2012-13 & 2013-14 10. THE ISSUE INVOLVED IN BOTH THE APPEALS IS IDENT ICAL TO THE ONE AS STATED ABOVE IN ITA NO.5967/M/2016 FOR A.Y. 2011-12. THEREFORE, OUR FINDING IN ITA NO.5967/M/2016 FOR A. Y. 2011-12 WOULD, MUTATIS MUTANDIS, APPLY TO THESE APPEALS AS WELL. ACCORDINGLY, THESE APPEALS OF THE ASSESSEE ARE ALLO WED. 11. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.06.2021. SD/- SD/- (SAKTIJIT DEY) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 22.06.2021. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI ITA NOS.5967, 5968 & 5969/M/2019 MR. BIJAL A. SHAH 5 THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.