ALLIANCE INTERMEDIAERIES & NETWORK P.LTD, MUMBAI V. DCIT CC (46), MUMBAI

ITA 7668/MUM/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 0042 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 24-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P MEENA LD
• Assessee Lawyers: MUKESH CHOSKI LD
• Keywords: Opportunity of being heard; Accommodation entries
• Section: 143(3); 153A; 132; 12; 10; 11

Judgement Text

ITA NOS.6043 TO 6048/MUM/2012 & 7666 TO 7670/MUM/20 14 & 1078/MUM/2015 ALLIANCE INTERMEDIARIES & NETWORK PRIVATE LIMITED ASSESSMENT YEAR 2005-06 TO 2010-11 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI . . , , BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM SL.N O. APPEAL NO. ASSESSMENT YEAR RELEVANT SECTION 1 ITA.NO.6043/MUM/2012 A.Y.2005-06 153A R.W.S 143(3 ) 2 ITA.NO.6044/MUM/2012 A.Y.2006-07 153A R.W.S 143(3 ) 3 ITA.NO.6045/MUM/2012 A.Y.2007-08 153A R.W.S 143(3 ) 4 ITA.NO.6046/MUM/2012 A.Y.2008-09 153A R.W.S 143(3 ) 5 ITA.NO.6047/MUM/2012 A.Y.2009-10 153A R.W.S 143(3 ) 6 ITA.NO.6048/MUM/2012 A.Y.2010-11 143(3) 7 ITA.NO.7666/MUM/2014 A.Y.2005-06 PENALTY U/S 271( 1)(C) 8 ITA.NO.7667/MUM/2014 A.Y.2006-07 PENALTY U/S 271( 1)(C) 9 ITA.NO.7668/MUM/2014 A.Y.2007-08 PENALTY U/S 271( 1)(C) 10 ITA.NO.7669/MUM/2014 A.Y.2008-09 PENALTY U/S 271 (1)(C) 11 ITA.NO.7670/MUM/2014 A.Y.2009-10 PENALTY U/S 271 (1)(C) 12 ITA.NO.1078/MUM/2015 A.Y.2010-11 PENALTY U/S 271 AAA ALLIANCE INTERMEDIARIES & NETWORK PRIVATE LIMITED BLOCK H SHRI SADASHIV CHS LTD 6 TH ROAD, SANTACRUZ(E) MUMBAI 400 055 / VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 46 ROOM NO. 659 6 TH FLOOR AAYKAR BHAVAN, M.K.ROAD MUMBAI 400 020 ./ ./PAN/GIR NO. AACCA-9750-E ( '# /APPELLANT ) : ( $%# / RESPONDENT ) ASSESSEE BY : MUKESH CHOSKI, LD. AR REVENUE BY : R.P.MEENA, LD. CIT DR ITA NOS.6043 TO 6048/MUM/2012 & 7666 TO 7670/MUM/20 14 & 1078/MUM/2015 ALLIANCE INTERMEDIARIES & NETWORK PRIVATE LIMITED ASSESSMENT YEAR 2005-06 TO 2010-11 2 / DATE OF HEARING : 22/06/2017 / DATE OF PRONOUNCEMENT : 07 /07/2017 / O R D E R PER BENCH 1. THESE ARE TWELVE APPEALS BY ASSESSEE FROM ASSESS MENT YEAR 2005-06 TO 2010-11 WHICH ASSAILS QUANTUM ASSESSMENT AS WELL AS IMPOSITION OF PENALTY. SINCE, THE SAME ARISES OUT O F COMMON SET OF FACTS, WE DISPOSE-OFF THE SAME BY THIS COMMON ORDER FOR TH E SAKE OF CONVENIENCE AND BREVITY. ITA NOS. 6043 TO 6048/M/20 12 ASSAILS THE COMMON ORDER OF LD. COMMISSIONER OF INCOME TAX(APPE ALS)-38 [CIT(A)], MUMBAI DATED 31/07/2012 WHEREAS ITA NOS. 7666 TO 7670/MUM/2014 & 1078/MUM/2015 ASSAILS ORDER OF LD. CIT(A) QUA CONFIRMATION OF PENALTY U/S 271(1)(C) / 271AAA. 2. BRIEFLY STATED, CONSEQUENT TO SEARCH ACTION U/S 132 IN THE CASE OF MUKESH MANEKLAL CHOKSI & GROUP ON 25/11/2009, THE ASSESSEE BEING PART OF THE SAID GROUP WAS SUBJECTED TO ASSESSMENT FOR IMPUGNED AYS U/S 153A READ WITH SECTION 143(3). THE ASSESSEE WAS FOUND TO HAVE INDULGED IN PROVIDING VARIOUS TYPES OF ACCOMMODATIO N ENTRIES TO NUMEROUS CONCERNS. THE INCOME OF THE ASSESSEE WAS F INALLY ESTIMATED BY THE LD. AO @2% OF TOTAL RECEIPTS AS PER THE BANK STATEMENTS WHICH WAS CONFIRMED BY THE LD. CIT(A). THE STAND OF LD. C IT(A) HAS BEEN CONTESTED BEFORE US. ITA NOS.6043 TO 6048/MUM/2012 & 7666 TO 7670/MUM/20 14 & 1078/MUM/2015 ALLIANCE INTERMEDIARIES & NETWORK PRIVATE LIMITED ASSESSMENT YEAR 2005-06 TO 2010-11 3 3. IN THE MEANWHILE, THE ASSESSEE HAS BEEN SADDLED WITH PENALTY U/S 271(1)(C) FOR AY 2005-06 TO 2009-10 & U/S 271AAA FO R AY 2010-11 WHICH, UPON CONFIRMATION BY LD. CIT(A), HAS ALSO BE EN CONTESTED BEFORE US. 4. THE ASSESSEE HAS RAISED VARIOUS GROUNDS OF APPEA LS INCLUDING THE GROUND AGITATING THAT THE ORDER PASSED BY THE LD. A O IS WITHOUT PROVIDING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE. ON MERITS, THE ASSESSEE HAS CHALLENGED CONFIRMATION OF ADDITION @2 % AS AGAINST 0.15% OFFERED BY THE ASSESSEE. OUR ATTENTION HAS AL SO BEEN DRAWN TO VARIOUS DECISIONS OF THE TRIBUNAL IN CASE OF ASSOCI ATED CONCERNS WHERE THE INCOME HAS BEEN ESTIMATED @0.15%, THE COPIES OF WHICH HAVE BEEN PLACED IN THE PAPER BOOK. AT THE TIME OF HEARING, THE ASSESSEE SUBMITS THAT THE ASSESSMENT ORDERS HAVE BEEN PASSED BY LD. AO WITHOUT PROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND MOREOVER, THE ADDITION MADE BY LOWER AUTHORITIES WA S ON THE HIGHER SIDE. 5. PER CONTRA, LD. DR CONTROVERTED THE SAME AND SUBMITTED WRITTEN SUBMISSIONS OF 17 PAGES AGAINST THE STAND TAKEN BY THE ASSESSEE AND CONTENDED THAT NO PRECEDENT CAN BE FOLLOWED IN CASE OF ESTIMATION OF INCOME. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED RELEVANT MATERIAL ON RECORD. THE RESPECTIVE REPRESENTATIVES HAS BROUG HT TO OUR NOTICE THE DECISION OF TRIBUNAL RENDERED IN ASSOCIATED CONCERN OF THE GROUP JAYESH K. SAMPAT VS. DCIT [ITA NOS. 1000 TO 1003 & 1005/MU M/2013 ORDER DATED 28/10/2016] WHERE THE TRIBUNAL ON IDENTICAL SET OF FACTS AND S IMILAR SUBMISSIONS / CONTENTIONS HAS REMITTED THE MATTER B ACK TO THE FILE OF AO ITA NOS.6043 TO 6048/MUM/2012 & 7666 TO 7670/MUM/20 14 & 1078/MUM/2015 ALLIANCE INTERMEDIARIES & NETWORK PRIVATE LIMITED ASSESSMENT YEAR 2005-06 TO 2010-11 4 FOR FRESH ADJUDICATION IN TERMS OF RESPECTIVE SUBMI SSIONS. BOTH REPRESENTATIVES HAVE AGREED FOR SIMILAR DIRECTIONS IN THE PRESENT CASE. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED RELEVANT MATERIAL ON RECORD INCLUDING THE CITED DECISION OF THE TRIBU NAL. WE FIND THAT THE ISSUE ON IDENTICAL SET OF FACTS HAVE BEEN SET ASIDE TO THE FILE OF LD. AO BY THIS TRIBUNAL IN THE CITED CASE IN THE FOLLOWING MA NNER:- 4. COMING TO THE MERITS OF THE CASE I.E. ADDITION MADE AT 2% OF GROSS DEPOSITS AS AGAINST 0.15% OFFERED BY THE ASSESSEE, THE LD. C OUNSEL FOR THE ASSESSEE SUBMITS THAT ON IDENTICAL FACTS, THE COORDINATE BEN CH HAS DECIDED THIS ISSUE HOLDING THAT INCOME BY WAY OF COMMISSION FROM THE BUSINESS OF ACCOMMODATION ENTRIES BEING CARRIED OUT BY MUKESH CHOKSHI GROUP WAS LIABL E TO BE ASSESSED AT 0.15% INSTEAD OF 2% APPLIED BY THE ASSESSING OFFICER. THE LD. COUNSEL FOR THE ASSESSEE RELIED ON THE FOLLOWING DECISIONS : SL.NO. ITA.NOS N AME OF THE ASSESSEE DATE OF ORDER 1 ITA NOS. 19 TO 22/M/2013 M/S KAYCEE SHARES BROKI NG PVT.LTD 09.09.2016 2 ITA.NOS. 6435 TO 6441/M/2012 M/S. MIHIR AGENCIES PVT.LTD 06.01.2016 3 ITA NOS. 309 & 310/M/2013 M/S. KANAK STOCK BROKE RS PVT.LTD. 09.09.2016 4 ITA NOS. 887/M/2012 & 2699/M/13 M/S.GOLDSTAR GINVEST PVT.LTD 30/11/2015 5 ITA NOS. 2700,2702 & 2701/M/2013 ALLIANCE INTERME DIATERIES & NETWORK PVT.LTD 24/02/2016 6 ITA NOS. 6114 TO 6120/M/2012 M/S.GOLDSTAR FINVEST PVT.LTD. 01.06.2016 7 ITA NOS. 6558 TO 6564/M/2012 M/S. ALPHA CHEMIED T RADE AGENCIES PVT.LTD 09.09.2016 8 ITA.NOS. 833 TO 839/M/2013 MR. MUKESH CHOKSI 04.0 5.2016 5. THE LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTL Y SUBMITS THAT ALL THE DECISIONS RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE ARE RENDERED ON THE FACTS OF THAT PARTICULAR CASE AND THE FACTS IN THE PRESENT ASSESSEE'S CASE ARE NO T SIMILAR. THEREFORE HE SUBMITS THAT THOSE DECISIONS MAY NOT BE APPLICABLE AND SHOULD NO T BE FOLLOWED. THE LD. DEPARTMENTAL REPRESENTATIVE BEFORE US SUBMITTED WRITTEN SUBMISSI ONS RUNNING INTO 17 PAGES EXPLAINING THE RATIO OF ALL THOSE DECISIONS AND BRINGING OUT T HE DISTINGUISHING FEATURES ACCORDING TO HIM AND SUBMITTED THAT SINCE THE DECISIONS ARE NOT APPL ICABLE, THE SAME MAY NOT BE FOLLOWED. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO PROP ER OPPORTUNITY WAS GIVEN AND HENCE ASSESSMENTS SHOULD BE SET ASIDE TO THE ASSESSING OF FICER FOR FRESH ADJUDICATION AND HE FURTHER SUBMITTED THAT THE ISSUE IN APPEAL IS SQUAR ELY COVERED BY VARIOUS DECISIONS OF THE CO-ORDINATE BENCHES WHEREIN IT WAS HELD THAT THE CO MMISSION INCOME FROM THE BUSINESS OF ACCOMMODATION ENTRIES SHOULD BE ASSESSED AT 0.15% A S AGAINST 2% ASSESSED BY THE ASSESSING OFFICER. TAKING NOTE OF ALL THE DECISIONS AND SUBMISSIONS OF THE LD. DEPARTMENTAL REPRESENTATIVE, WE ARE OF THE VIEW THA T THE ASSESSING OFFICER SHOULD EXAMINE ALL THESE SUBMISSIONS OF THE LD. DEPARTMENT AL REPRESENTATIVE AND THE CASE LAWS ITA NOS.6043 TO 6048/MUM/2012 & 7666 TO 7670/MUM/20 14 & 1078/MUM/2015 ALLIANCE INTERMEDIARIES & NETWORK PRIVATE LIMITED ASSESSMENT YEAR 2005-06 TO 2010-11 5 RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE AND D ECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW. THUS, WE RESTORE THE ASSESSMENTS TO THE F ILE OF THE ASSESSING OFFICER TO DECIDE AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING ADEQU ATE OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2005-06 TO 2007-08 AND 2010-11 ARE ALLOWED FOR STATISTICAL PUR POSE. THE FACTS OF THE INSTANT CASE ARE IDENTICAL IN ALL RESPECT AND SUBMISSIONS OF THE REPRESENTATIVES ARE ALSO IDENTICAL. THEREFOR E, ON SIMILAR LINES, THE MATTER IS RESTORED BACK TO THE FILE OF LD. ASSESSIN G OFFICER FOR FRESH ADJUDICATION, WHICH RESULTS INTO ASSESSEES QUANTUM APPEALS BEING PARTLY ALLOWED FOR STATISTICAL PURPOSES. 8. SINCE, THE QUANTUM ASSESSMENT HAS BEEN SET ASIDE FOR FRESH ADJUDICATION, THE PENALTY LEVIED IN RESPECT THEREOF ALSO DO NOT SURVIVE. THEREFORE, ALL THE PENALTY APPEALS STANDS ALLOWED. THE REVENUE IS FREE TO INITIATE FRESH PENALTIES ON THE BASIS OF QUANTUM AS SESSMENTS. 9. RESULTANTLY, THE QUANTUM APPEALS STANDS PARTLY A LLOWED FOR STATISTICAL PURPOSES WHEREAS THE PENALTY APPEALS ST ANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 07 TH JULY, 2017. SD/- SD/- (D.T. GARASIA) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 07 .07.2017 SR.PS:- THIRUMALESH ITA NOS.6043 TO 6048/MUM/2012 & 7666 TO 7670/MUM/20 14 & 1078/MUM/2015 ALLIANCE INTERMEDIARIES & NETWORK PRIVATE LIMITED ASSESSMENT YEAR 2005-06 TO 2010-11 6 / COPY OF THE ORDER FORWARDED TO : 1. '# / THE APPELLANT 2. $%# / THE RESPONDENT 3. , ( ' ) / THE CIT(A) 4. , / CIT CONCERNED 5. $'. , ' . , / DR, ITAT, MUMBAI 6. / / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI