D.C.I.T., Central Circle-XX, Kolkata, Kolkata V. Shri Subhash Kumar Banka, Kolkata

ITSSA 130/KOL/2014

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3409 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 17 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 18-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 19-04-2017
• Assessment Year: misc
• Appeal Filed On: 31-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANAND R BAIWAR
• Keywords: Bogus Share capital; Income from undisclosed sources; Search and seizure; Document seized; Additional evidence; Accommodation entries; Bogus loan; Documents seized
• Section: 131

Judgement Text

1 IT(SS)NO.130/KOL/2014 SHRI SUBHASH KUMAR BANKA BLOC K PERIOD 01.04.1988 TO 29.10.1998 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A KOL KATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI M.B ALAGANESH, AM ] IT(SS)A NO.130/KOL/2014 BLOCK PERIOD FROM 01.04.1988 TO 29.10.1998 D.C.I.T., CENTRAL CIRCLE-XX, -VERSUS- SRI SUB HASH KUMAR BANKA KOLKATA KOLKATA (PAN:B-3699.CC-III/CAL) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI ANAND R.BAIWAR, CIT FOR THE RESPONDENT: SHRI RAJEEVA KUMAR, ADVOCATE DATE OF HEARING : 02.08.2017. DATE OF PRONOUNCEMENT : 18.08.2017. ORDER PER N.V.VASUDEVAN, JM: THIS IS AN APPEAL BY THE REVENUE AGAINST THE ORDER DATED 19.05.2014 OF CIT(A)-CENTRAL-III, KOLKATA RELATING TO BLOCK PER IOD 01.04.1988 TO 29.10.1998. 2. GROUNDS OF APPEAL RAISED BY THE REVENUE READ AS FOLLOWS :- 1 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS GROSSLY ERRED IN GRANTING RELIEF TO THE ASSESSEE ON THE BAS IS OF JUDGMENT OF ITAT, ' A' BENCH, KOLKATA IN IT (SS) A NO. 130/KOL./2005,BUT W ITHOUT CONSIDERING THAT THE FACTS OF THE CITED CASE IS NOT SQUARELY APPLICABLE IN THIS CASE. 1.1 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT (A) ERRED IN GRANTING RELIEF TO THE ASSESSEE ON THE BASIS OF JUD GMENT MENTIONED IN SI. NO. 2, BUT IN THE CITED CASE, THE STATEMENT OF THE ASSESSE E WAS RECORDED DEDUCTION U/S. 132(4) OF THE LT. ACT WITHOUT DOCUMENTARY EVIDENCE BUT HERE IN THIS CASE, THE AO HAS RECORDED THE STATEMENT OF ASSESSEE ON THE BASIS OF DOCUMENTARY EVIDENCES U/S. 131(A) OF THE ACT, ADMISSIBLE IN THE COURT OF LAW. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN GRANTING RELIEF TO THE ASSESSEE IGNORING THE FACT T HAT THE ASSESSEE DID NOT CO- OPERATE WITH THE AO IN PREPARING REMAND REPORT. 2 IT(SS)NO.130/KOL/2014 SHRI SUBHASH KUMAR BANKA BLOC K PERIOD 01.04.1988 TO 29.10.1998 2.1 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) HAS ERRED IN ALLOWING RELIEF TO THE ASSESSEE EVEN THOUGH THE AO HAS DULY INFORMED THAT THE ASSESSEE DID NOT PRODUCE RELEVANT EVIDENCES BEFORE THE AO AT THE REMAND REPORT STAGE AND THUS THE RELIEF GRANTED IS WRONG IN ABSEN CE OF REMAND REPORT FOR VERIFICATION OF FACTS INCLUDING ADDITIONAL EVIDENCE S. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN ALLOWING RELIEF TO THE ASSESSEE ON COMMISSION INCOM E WHILE THE ASSESSEE HIMSELF HAD ADMITTED THE BUSINESS OF ARRANGEMENT FOR BOGUS SHARE CAPITAL AND LOANS TO DIFFERENT PARTIES AT THE SEARCH STAGE AND DEPOSITIO N BEFORE THE AO ALSO ON OATH U/S. 131 OF THE I.T. ACT DURING THE ASSESSMENT PROC EEDINGS. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS GROSSLY ERRED IN GRANTING RELIEF TO THE ASSESSEE WITHOUT CO NSIDERING THE RELEVANT FACT OF ARRANGING SHARE CAPITAL AND LOAN BY THE ASSESSEE AM OUNTING TO RS. 22,67,50,000/- AS EVIDENT FROM THE DOCUMENTS SEIZED DURING SEARCH AND SEIZURE ACTION AND THE REVENUE BEING VERY REASONABLE OF ASS ESSING COMMISSION INCOME @ 2% IN THE HANDS OF THE ASSESSEE ON THE BASIS OF STA TEMENTS MADE ON OATH BY THE ASSESSEE AND SEIZED DOCUMENTS. 5. THE APPELLANT CRAVES THE LEAVE TO MAKE ANY ADDIT ION, ALTERATION, MODIFICATION AND REMODELING OR WITHDRAWING OF THE GROUNDS. 3. THE ASSESSEE IS AN INDIVIDUAL. HE IS A CHARTE RED ACCOUNTANT BY PROFESSION. THE REVENUE HAD INFORMATION THAT ONE SHRI S.L.MISHRA, A DVOCATE AND CERTAIN GROUP OF PERSONS FLOATED COMPANIES WITH BOGUS ADDRESSES AND THESE COMPANIES SHOWED BOGUS LOANS IN THEIR BALANCE SHEETS. IN FACT THE COMPANIE S FLOATED BY THEM WERE JUST PAPER OR SHELL COMPANIES AND WERE USED FOR THE PURPOSE OF GI VING ACCOMMODATION ENTRIES TO PERSONS TO ENABLE THEM TO USE ACCOMMODATION ENTRIES TO BRING INTO THEIR BOOKS OF ACCOUNT, UNACCOUNTED INCOME AS LEGITIMATE INCOME. S HRI S.L.MISHRA WAS SEARCHED BY THE INCOME TAX AUTHORITIES U/S.132 OF THE INCOME TA X ACT, 1961. (ACT). IN THE COURSE OF SEARCH OF SHRI S.L.MISHRA CONDUCTED BY THE INCOM E TAX DEPARTMENT A DOCUMENT MARKED AS KBE/4 WAS FOUND. THIS DOCUMENT SHOWED THA T THE ASSESSEE WAS ALSO USING THE SERVICES OF SHRI S.L.MISHRA AND INDULGING IN PR OVIDING ACCOMMODATION ENTRIES TO VARIOUS PERSONS. 3 IT(SS)NO.130/KOL/2014 SHRI SUBHASH KUMAR BANKA BLOC K PERIOD 01.04.1988 TO 29.10.1998 4. CONSEQUENTLY A SEARCH WAS ALSO CONDUCTED AT THE OFFICE AND RESIDENTIAL PREMISES OF THE ASSESSEE AT KOLKATA ON 29.10.1998. CONSEQUEN TLY PROCEEDINGS U/S 158BC OF THE INCOME TAX ACT, 1961 (ACT) WERE INITIATED AGAINST T HE ASSESSEE. 5. ON 17.11.1998 A STATEMENT OF THE ASSESSEE WAS RECORDED BY D.D.I.T. (INVESTIGATION) IN WHICH THE ASSESSEE ADMITTED THAT HE WOULD ARRANGE ACCOMMODATION ENTRIES. THE FOLLOWING WAS THE ADMISSION BY THE ASS ESSEE IN RESPECT OF TRANSACTIONS OF PROVIDING ACCOMMODATION ENTRIES WHICH WERE CARRIED OUT THROUGH SHRI S.L.MISHRA:- I ARRANGE LOAN FOR COMPANIES HAVING BLACK MONEY. BY TAKING CASH FROM THE COMPANY AND GIVING THE SAME TO MR. SL. MISHRA (SHIV LALIT MISHRA), ADVOCATE, WHO USED TO GIVE CHEQUE ON THE SAME DAY OR IN THE N EXT DAY IN THE NAME OF COMPANIES WHO HAS GIVEN SUCH CASH. THE COMPANIES OF MR. SL. MISHRA DO NOT HAVE ANY SOURCE TO ADVANCE THE AMOUNT BY CHEQUE, HE NCE CASH IS BEING GIVEN IN ADVANCE BEFORE RECEIVING THE CHEQUES. ' HE FURTHER ADMITS THAT 'THESE COMPANIES HAVE ADVANCED LOANS AND INVESTED IN HARE THROUGH ME IN DIFFERENT COMPANIES WHO HAD GIVEN CASH OF SIMILAR AMOUNT TO ME AND THE SAME WAS HANDED OVER TO SRI SI. MISHRA WHO USED TO ISSUE CHEQUE IN THE NAME OF THE ABOVE COMPANIES. FOR THIS NAME LENDING SRI SI. MISHRA CHARGES COMMISSION OF 1 TO 2 % OF THE INVESTMENT AS I HAVE EARNED 0.25% COMMISSION ON THE INVESTMENT. I F THERE IS ANOTHER PROFESSIONAL WHO SEEKS MY HELP, THEN I GET LITTLE L ESS THAN 0.25%. I RECEIVE THE COMMISSION FROM THE COMPANY FOR WHICH THE LOAN/SHAR E IN JAMA KHARCHA ACCOUNT IS ARRANGED. ' 6. THE ASSESSEE HOWEVER BY AN AFFIDAVIT SWORN BEF ORE METROPOLITAN MAGISTRATE, KOLKATA, RETRACTED THE STATEMENT GIVEN BY HIM ON 17 .11.1998 ON THE GROUND THE SAME WAS EXTRACTED FROM THE ASSESSEE BY THE REVENUE USIN G OF UNDUE INFLUENCE/COERCION. 7. SUBSEQUENTLY ON 09.01.2001 A STATEMENT OF THE ASSESSEE WAS RECORDED U/S 131 OF THE ACT. AS FAR AS THE PRESENT CASE IS CONCERNED, W E ARE CONCERNED WITH THE QUANTUM OF MONEY IN THE FORM OF ACCOMMODATION ENTRIES AS FOUND RECORDED IN THE SEIZED DOCUMENT KBE/4 AND THE PERCENTAGE OF COMMISSION WHI CH THE ASSESSEE EARNED BY PROVIDING SUCH ACCOMMODATION ENTRIES. 8. IT IS NOT IN DISPUTE THAT THE TOTAL OF THE QUAN TUM OF ACCOMMODATION ENTRIES SAID TO HAVE BEEN PROVIDED BY THE ASSESSEE AS REVEALED BY T HE SEIZED DOCUMENT KBE/4 WAS A 4 IT(SS)NO.130/KOL/2014 SHRI SUBHASH KUMAR BANKA BLOC K PERIOD 01.04.1988 TO 29.10.1998 SUM OF RS.22,67,50,000/-. WHEN THE ASSESSEE WAS EXA MINED BY DDIT (EXEMPTION) ON 09.01.200, THE ASSESSEE IN HIS STATEMENT THAT THE A SSESSEE OWNED UP ONLY TRANSACTION OF ACCOMMODATION ENTRIES OF THE QUANTUM OF RS.10,70 ,40,000/- OUT OF THE TRANSACTIONS OF RS.22,67,50,000/- AS RECORDED IN KBE/4 IN HIS NA ME. THE ASSESSEE DISOWNED THE OTHER TRANSACTIONS. IN ANSWER TO QUESTION NO.8 OF T HE STATEMENT RECORDED ON 09.01.2001 THE ASSESSEE DISOWNED SOME OF THE TRANSACTIONS RECO RDED IN KBE/4 AND THE RELEVANT PART OF HIS STATEMENT IN THIS REGARD WAS AS FOLLOWS :- ON EXAMINATION OF THE SEIZED DOCUMENT KBE/4, IT AP PEARS TO ME THAT AT NUMBER OF PLACES MY NAME IS APPEARING BUT I HAVE NEVER ARR ANGED SHARE CAPITAL/LOAN FOR SUCH PERSONS. FOR EXAMPLE, SI. NO. 14,15,17 OF PAGE NO. 170 AND SI.NO. 35, 36,37, 42, 45, 46, 47,53,56,57,60,61,63,64, 65 & 66 OF PAGE NO.171' 9. IT IS ALSO PERTINENT TO POINT OUT THAT SO FAR AS THE QUANTUM OF COMMISSION EARNED BY THE ASSESSEE ON PROVIDING ACCOMMODATION ENTRIES, TH E ASSESSEE HAD CLAIMED THAT HE EARNED 0.25% ON THE VALUE OF ACCOMMODATION ENTRIES PROVIDED. IT IS ALSO NOT IN DISPUTE THAT DDIT(EXEMPTION) HAD WRITTEN A COMPLAIN T TO THE PROFESSIONAL BODY INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA (ICAI) COMPLAINING THAT THE ASSESSEE AS A PROFESSIONAL WAS GUILTY OF PROFESSIONAL MISCONDUCT IN AS MUCH AS HE INDULGED IN PROVIDING ACCOMMODATION ENTRIES FOR A COMMISSION. I N THAT LETTER THE DDIT(INVESTIGATION) HAD HIMSELF SPECIFIED 0.25% AS QUANTUM OF COMMISSION EARNED ON THE VALUE OF ACCOMMODATION ENTRIES PROVIDED BY T HE ASSESSEE. 10. IN THE BACKGROUND OF FACTS WITH REGARD TO T HE QUANTUM OF ACCOMMODATION ENTRIES PROVIDED BY THE ASSESSEE AND THE PERCENTAGE OF COMM ISSION EARNED BY THE ASSESEE, THE AO CAME TO THE CONCLUSION THAT THE PREVALENT MARKET RATE FOR ARRANGING SHARE/LOAN RUNS BETWEEN 2 TO 5% OF THE AMOUNT OF SUCH TRANSACTIONS AND THE CLAIM OF THE ASSESSEE THAT HE EARNED ONLY 0.25% COMMISSION CANNOT BE BELIEVED. THE AO ALSO HELD THAT WHEN THE ASSESSEE HAS ADMITTED PART OF THE TRANSACTIONS EVIDENCED BY THE SEIZED DOCUMENT, HE CANNOT DISOWN SOME OF THE TRANSACTIONS IN THE SA ME DOCUMENT. THE AO ACCORDINGLY DETERMINED THE UNDISCLOSED INCOME OF TH E ASSESSEE AT 2% OF RS.22,67,50,000/- I.E. RS.45,35,000/-. 5 IT(SS)NO.130/KOL/2014 SHRI SUBHASH KUMAR BANKA BLOC K PERIOD 01.04.1988 TO 29.10.1998 11. THE ASSESSEE IN HIS RETURN OF INCOME HAD ADM ITTED COMMISSION @0.25% ON ACCOMMODATION ENTRIES WORTH RS.10,70,40,000/-. AS AGAINST THE SAID DECLARATION OF INCOME, THE AO HAD DETERMINED THE UNDISCLOSED OF RS .4535,000/- IN THE MANNER SET OUT IN THE EARLIER PARAGRAPH. 12. AGGRIEVED BY THE ADDITION MADE BY THE AO THE ASSESSEE PREFERRED APPEAL BEFORE CIT(A). BEFORE CIT(A) THE ASSESSEE RELIED ON THE DE CISION OF ITAT, KOLKATA BENCH IN THE CASE OF PRADEEP KUMAR AGARWAL IN IT(SS)A.NO.130 /KOL/2005 ORDER DATED 28.09.2006 WHEREIN IN RESPECT OF AN IDENTICAL CASE WHERE A CHARTERED ACCOUNTANT WAS INVOLVED IN PROVIDING ACCOMMODATION ENTRIES, THE DD IT(INVESTIGATION) HAD WRITTEN TO ICAI THAT THE ADMITTED PERCENTAGE OF COMMISSION EAR NED WAS 0.5%. THE AO HAD MADE ADDITION @ 5% OF ACCOMMODATION ENTRIES AS COMM ISSION EARNED BY THE ASSESSEE. THE TRIBUNAL ON SUCH AN ADDITION, ULTIMAT ELY CAME TO THE CONCLUSION THAT THE PERCENTAGE OF COMMISSION REPORTED BY DDIT(INVESTIGA TION), KOLKATA TO THE ICAI SHOULD BE THE BASIS OF DETERMINATION OF INCOME IN T HE FORM OF COMMISSION EARNED FOR PROVIDING ACCOMMODATION ENTRIES. THE CIT(A) FOLLOWI NG THE AFORESAID DECISION OF THE TRIBUNAL DELETED THE ADDITION MADE BY THE AO. 13. AGGRIEVED BY THE ORDER OF CIT(A) THE REVENUE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 14. WE HAVE HEARD THE SUBMISSION OF THE LD. DR A ND THE LD. COUNSEL FOR THE ASSESSEE. THE LD. DR FIRSTLY POINTED OUT THAT CIT(A)S ORDER IS SILENT WITH REGARD TO THE QUANTUM OF ACCOMMODATION ENTRIES PROVIDED BY THE ASSESSEE. IT WAS NEXT SUBMITTED THAT THE BASIS OF DETERMINATION OF PERCENTAGE OF COMMISSION WAS THE MARKET RATE AND THAT SHOULD BE ADOPTED AS THE BASIS FOR DETERMINING UNDI SCLOSED INCOME IN THE HANDS OF THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE RELIED O N THE ORDER OF CIT(A). 15. WE HAVE GIVEN A VERY CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS. IT IS CLEAR FROM THE MATERIAL ON RECORD AND THE ORDERS OF THE R EVENUE AUTHORITIES THAT IN THE 6 IT(SS)NO.130/KOL/2014 SHRI SUBHASH KUMAR BANKA BLOC K PERIOD 01.04.1988 TO 29.10.1998 ORIGINAL STATEMENT RECORDED ON 17.11.1998 BY DDIT(I NVESTIGATION), KOLKATA, THE ASSESSEE ADMITTED QUANTUM OF TRANSACTIONS AS APPEAR ING IN THE SEIZED DOCUMENT AT RS.22,67,50,000/-. THIS ADMISSION DOES NOT HOLD GO OD IN VIEW OF THE RETRACTING AFFIDAVIT DATED 23.11.1998 OF THE ASSESSEE. IN FACT THIS IS THE REASON WHY THE ASSESSEES STATEMENT WAS AGAIN RECORDED BY DDIT(INVESTIGATION) ON 09.01.2001. IN THIS STATEMENT THE ASSESSEE OWNED UP ONLY SOME OF THE TRANSACTIONS AS RECORDED IN KBE/4 WHICH WAS SEIZED IN THE COURSE OF SEARCH FROM A THIRD PARTY S HRI S.L.MISHRA. TO THE EXTENT THE ASSESSEE HAS OWNED UP THE TRANSACTIONS FOUND IN THE SEIZED DOCUMENT FROM A THIRD PARTY THERE CANNOT BE ANY DISPUTE. TO THE EXTENT TH E TRANSACTIONS WERE DISOWNED BY THE ASSESSEE, THE BURDEN IS ON THE REVENUE TO SHOW THAT THOSE TRANSACTIONS ALSO PERTAIN TO THE ASSESSEE OR WERE ARRANGED BY THE ASSESSEE. IN T HIS REGARD THE REVENUE HAS NOT CHOSEN TO EXAMINE SHRI S.L.MISHRA FROM WHOM THE SEI ZED DOCUMENTS WERE RECOVERED. THE REVENUE HAS ALSO NOT BROUGHT ANY MATERIAL ON RE CORD TO SHOW THAT THE DOCUMENT SEIZED FROM SHRI S.L.MISHRA NAMELY KBE/4 AND TRANSA CTION FOUND THEREIN IN ENTIRETY WERE TRANSACTIONS OF ACCOMMODATION ENTRIES IN WHICH THE ASSESSEE WAS INVOLVED. THE AO HAS SOUGHT TO PLACE THE BURDEN ON THE ASSESSEE T O SHOW THAT TRANSACTIONS DISOWNED BY THE ASSESSEE WERE NOT CARRIED OUT BY THE ASSESSE E. IN OUR OPINION THIS APPROACH IS ERRONEOUS. THE ASSESSEE CANNOT BE ASKED TO PROVE TH E NEGATIVE. THE DEPARTMENT OUGHT TO HAVE BROUGHT MATERIAL ON RECORD TO SHOW THAT THE TRANSACTIONS DISOWNED BY THE ASSESSEE WERE IN FACT CARRIED OUT BY THE ASSESSEE. THE PRESUMPTION U/S/132(4) OR SEC. 292C OF THE ACT CANNOT BE EXTENDED TO THE ASSESSEE AS HE WAS NOT THE PERSON WHO WAS SEARCHED AND IN THE COURSE OF WHICH THE SEIZED DOCU MENT KBE-4 WAS FOUND. WE THEREFORE UPHOLD THE CONTENTION OF THE ASSESSEE WIT H REGARD TO THE QUANTUM OF TRANSACTIONS OF ACCOMMODATION ENTRIES CARRIED OUT B Y HIM AT RS.10,70,40,000/-. 16. WITH REGARD TO THE PERCENTAGE OF COMMISSION ON THE QUANTUM OF ACCOMMODATION ENTRIES PROVIDED BY THE ASSESSEE, IT IS NOT DISPUTE D THAT DDIT(INVESTIGATION) HAD WRITTEN TO ICAI THAT THE ASSESSEE RECEIVES 0.25% CO MMISSION. THIS WAS BASED ON THE ADMISSION OF THE ASSESSEE WITH REGARD TO THE QUANTU M OF COMMISSION EARNED ON PROVIDING ACCOMMODATION ENTRIES. THERE IS NO MATERI AL BROUGHT ON RECORD THAT 2% WAS 7 IT(SS)NO.130/KOL/2014 SHRI SUBHASH KUMAR BANKA BLOC K PERIOD 01.04.1988 TO 29.10.1998 THE COMMISSION IN THE MARKET FOR PROVIDING SUCH ACC OMMODATION ENTRIES. IN THE GIVEN CIRCUMSTANCES THE DECISION OF ITAT, KOLKATA BENCH I N THE CASE OF PRADEEP KUMAR AGARWAL (SUPRA) WILL BE SQUARELY APPLICABLE TO THE FACTS OF THE ASSESSEES CASE. IN THAT CASE THE FACTS WERE THAT THE ASSESSEE STATED IN HI S DEPOSITION THAT HE USED TO ARRANGE JAMA KHARCHI TRANSACTIONS. THE ASSESSEE FILED A LET TER BEFORE THE REVENUE AUTHORITIES WHEREIN HE ADMITTED THAT HE ARRANGED LOAN/SHARE APP LICATION MONEY BY TAKING CASH, WHICH WAS FINALLY GIVEN TO SRI S.L.MISHRA FOR ISSUI NG CHEQUES IN NAME OF DIFFERENT COMPANIES. A COMPUTER PRINTOUT WAS SEIZED FROM THE OFFICE OF SRI S.L.MISHRA, WHICH WAS SHOWN TO THE ASSESSEE. ON THE BASIS OF THE COMP UTER PRINTOUT, THE ASSESSEE WORKED OUT THE DETAILS OF TOTAL JAMA KHARCHI TRANSACTIONS CARRIED OUT BY THE ASSESSEE, TOTAL OF WHICH WORKED OUT TO RS.10,81,83,474/-. ACCORDING TO THE ASSESSING OFFICER, THE ASSESSEE ACCEPTED THAT HE EARNED COMMISSION @ 0.5% ON SUCH TRANSACTIONS. ACCORDING TO THE AO, THE MARKET RATE OF COMMISSION WAS NOT BE LOW 5%. HE ACCORDINGLY, WORKED OUT THE COMMISSION INCOME AT RS.54,09,174/- AS UNDI SCLOSED INCOME OF THE ASSESSEE. THE LD.CIT(A) IN APPEAL, HOWEVER ACCEPTED THAT THE ASSESSEE HAS RECEIVED COMMISSION @0.5%. ON THIS BASIS, HE DIRECTED THE AO TO COMPUTE THE COMMISSION @0.5% WHICH WORKED OUT TO RS.5,40,917/-. THE TRIBU NAL HELD THAT THE ACTION OF THE REVENUE AUTHORITIES FOR ESTIMATING A HIGHER COMMISS ION INCOME WITHOUT CORROBORATING EVIDENCE CANNOT BE SUSTAINED. WE ARE OF THE VIEW TH AT THE AFORESAID DECISION IS SQUARELY APPLICABLE TO THE FACTS OF THE PRESENT CAS E. EVEN OTHERWISE WE ARE SATISFIED THAT THE QUANTUM OF COMMISSION CANNOT BE ESTIMATED HIGHER THAN 0.25% WHICH WAS ADMITTED BY THE ASSESSEE WITHOUT BRINGING ANY CORRO BORATING MATERIAL ON RECORD TO SHOW THAT THE HIGHER COMMISSION WAS THE PREVAILING MARKET RATE. THE AO IS DIRECTED TO BRING TO TAX ONLY 0.25% COMMISSION AS INCOME FOR ARRANGING ACCOMMODATION ENTRIES TO THE VALUE OF RS.10,70,40,000/-. WE DO NO T FIND ANY GROUND TO INTERFERE IN THE DECISION OF CIT(A). CONSEQUENTLY THE APPEAL BY THE REVENUE IS DISMISSED SUBJECT TO THE DIRECTION THAT THE COMMISSION INOCME ADMITTED B Y THE ASSESSEE IN THE RETURN OF INCOME BE BROUGHT TO TAX. 8 IT(SS)NO.130/KOL/2014 SHRI SUBHASH KUMAR BANKA BLOC K PERIOD 01.04.1988 TO 29.10.1998 17. IN THE RESULT THE APPEAL BY THE REVENUE IS DIS MISSED. O RDER PRONOUNCED IN THE OPEN COURT ON 18.08.2017. SD/- SD/- [M.BALAGANESH] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 18.08.2017. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.SHRI SUBHASH KUMAR BANKA, 71, CANNING STREET, 5 TH FLOOR, KOLKATA-700001. 2.D.C.I.T., CENTRAL CIRCLE-XX, KOLKATA.. 3. CIT(A)-CENTRAL-III, KOLKATA. 4. CIT-CENTRAL-III, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, SENIOR PRIVATE SECRETARY HEAD OF OFFICE/D. D.O., ITAT, KOLKATA BENCHES, KOLKATA