Saurabh Agrawal , Indore V. Assistant Commissioner Of Income Tax (Central)-I, Indore

ITSSA 298/Ind/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4747 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 13-11-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: ANIL KHANDELWAL
• Keywords: Unexplained investment; Business income; Search and seizure; Set aside
• Section: 143(3); 153A; 201; 132; 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCHE, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER IT(SS)A NOS.298 TO 302/IND/2017 ASSESSMENT YEARS: 2008-09 TO 2012-13 SAURABH AGRAWAL 531, SUDAMA NAGAR SHIV MANDIR CHOWK, INDORE / VS. ACIT, CENTRAL - 1 INDORE ( APPELLANT ) ( R EVENUE ) P.A. NO. AGTPG6488P APPELLANT BY SHRI ANIL KHANDELWAL, CA REVENUE BY SMT. ASHIMA GUPTA, CIT - DR DATE OF HEARING: 13.03.2019 DATE OF PRONOUNCEMENT: 22.03.2019 / O R D E R PER KUL BHARAT, J.M: THIS BUNCH OF FIVE APPEALS BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX(APPEALS)-III IND ORE SAURABH AGRAWAL 2 DATED 31/08/2017 PERTAINING TO ASSESSMENT YEARS 2008-09 TO 2012-13. FIRST WE TAKE UP THE ASSESSEES APPEAL IN IT(SS)ANO.298/IND/2017 THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN LAW IN ENHANCING THE INCOME OF APPELLANT THROUGH NO INCRIMINATING MATERIAL WAS FOU ND AND SEIZED DURING RAID U/S 132 RELATING TO RELEVANT YEAR WITHOUT MAKING A PROPER CASE AS TO HOW AO WAS NOT JUSTIFIED IN ACCEPTING THE REVISED INCOME OF APPELL ANT. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN LAW IN ADOPTING 15% ENHANCEMENT COUNTRY TO HER OWN DIRECTION IN THE ORDER THAT SUCH ENHANCEMENT TO BE MADE FROM A.Y. 2008-09 TO A.Y. 2013-14 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LEARNED CIT(A) ERRED IN REJECTING THE REVISED INCOME OFFERED BY THE APPELLANT DURING ASSESSMENT PROCEEDINGS. 2. BRIEFLY STATED FACT ARE THAT SEARCH AND SEIZURE OPERATI ONS U/S 132 WERE CARRIED OUT ON THE BUSINESS AS WELL AS RESIDENTIAL PREMISES OF THE LCH GROUP OF INDORE INCL UDING THE ASSESSEE ALONG WITH OTHER CONCERNS/BUSINESS SAURABH AGRAWAL 3 ASSOCIATES ON 04.10.2013. IN PURSUANCE TO NOTICE U/S 153A, THE ASSESSEE FILED HIS RETURN OF INCOME DECLARI NG INCOME OF RS. 1,06,260/-. THE ASSESSING OFFICER CONS IDERING THE SUBMISSIONS AND THE MATERIAL AVAILABLE ON RECORD ESTIMATED AND DISCLOSED INCOME AT RS. 3,00,000/- IN RESPECT OF THE ASSESSMENT UNDER REFERENCE FURTHER TH E ASSESSING OFFICER ALSO MADE ADDITION OFRS.39,00,000/- I N RESPECT OF THE UNEXPLAINED INVESTMENT AND THEREFORE, ASSESSED INCOME AT RS.43,06,260/- AGAINST THE RETURNED INCOME OF RS.1,06,260/-. 3. AGAINST THIS THE ASSESSEE HAS PREFERRED AN APPEAL BEFO RE THE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS PARTLY ALLOWED, THE APPEAL THEREBY, THE LD. CIT(A) DELETED T HE ADDITION OF RS.39,00,000/- HOWEVER, IN RESPECT OF ES TIMATED UNDISCLOSED INCOME SAME WAS ENHANCED BY RS.4,29,742/-. 4. AGAINST THIS THE ASSESSEE IS IN PRESENT APPEAL. SAURABH AGRAWAL 4 5. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMI TTED THAT IN ALL THESE APPEALS THE EFFECTIVE GROUND IS AGAINST ENHANCEMENT OF INCOME MADE BY LD. CIT(A). LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS AN AGENT IN THE REGIONAL TRANSPORT OFFICE AT INDORE. DURING THE COURSE OF HEARING LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SYNOPSIS WHICH I S REPRODUCED AS UNDER: APPELLANT SUARABH AGRAWAL IS ENGAGED IN THE BUSI NESS OF AN AGENT IN THE RTO (REGIONAL TRANSPORT OFFICE) AT IN DORE SINCE LAST ABOUT 10 YEARS. HE IS AN INCOME TAX ASSESSEE, HAVING FILED HIS RETURNS REGULARLY FROM A.Y. 2008-09 TO A.Y. 201 0-11, DECLARING INCOME FROM RTO AGENCY BUSINESS. SEARCH OPERATION U/S 132 WERE CONDUCTED ON 04.10. 2013 AT HIS RESIDENTIAL PREMISES. DURING SEARCH 8 DIARIES RELATING TO RTO BUSINESS, OTHER DOCUMENTS, CASH RS 1,96,830 AND GOLD ORNAMENTS WEIGHING 151 GRAMS AND SILVER COINS WEIGH ING 200 GRAMS, WERE FOUND BUT NOT SEIZED. SEIZURE OF 8 DI ARIES AND OTHER DOCUMENTS ONLY WAS DONE. NO OTHER ASSETS LIKE CASH, BANK DEPOSIT AND BANK ACCOUNT ETC. WERE FOUND. IN COMPLIANCE TO THE NOTICES DATED 06.06.2014 U/S 153A APPELLANT FILED RETURNS FOR 6 YEARS FROM AY 2008-0 9 TO 2013- 14. ASSESSE DID NOT MAINTAIN ANY REGULAR BOOKS OF ACCOU NTS EXCEPT THE SEIZED DIARIES REGARDING RTO AGENCY WORK. SAURABH AGRAWAL 5 LD. AO COMPLETED ASSESSMENT ON 30.03.2016 U/S 153A FOR AY 2008-09 TO 2013-14 AND FOR AY 2014-15 U/S. 143(3) M AKING HEAVY ADDITIONS. APPELLANT GOT SOME RELIEF IN FIRST APPEAL. HOWEVER LD. CIT(A) MADE ENHANCEMENT U/S. 251(1)(A) FOR AY 2008-09 TO 2012-13 WHICH ARE CHALLENGED IN THESE AP PEALS. GROUNDS OF APPEAL FOR A.Y. 2008-09 TO 2012- 13 : THERE ARE THREE COMMON GROUNDS FOR AY 2008-0 TO A Y 2012-13 AS BELOW : 1. ' ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, LEARNED CIT(A) ERRED IN LAW IN ENHANCING THE INCOME OF APPE LLANT THOUGH NO INCRIMINATING MATERIAL WAS FOUND AND SEIZ ED DURING RAID U/S 132 RELATING TO RELEVANT YEAR WITHOUT M AKING A PROPER CASE AS TO HOW A.O. WAS NOT JUSTIFIED IN AC CEPTING THE REVISED INCOME OF APPELLANT.' 2. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED CIT(A) ERRED IN LAW IN ADOPTING 15% ENHANCE MENT CONTRARY TO HER OWN DIRECTION IN THE ORDER THAT SUC H ENHANCEMENT TO BE MADE FROM AY 2008-09 TO AY 2013-1 4 EVERY YEAR.' 3. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED CIT(A) ERRED IN REJECTING THE REVISED IN COME OFFERED BY THE APPELLANT DURING ASSESSMENT PROCEEDINGS.' IN RESPECT OF THE ABOVE GROUNDS, WE HUMBLY SUBMIT A S BELOW : 1.1 ASSESSEE IS A SELF EMPLOYED PERSON AND WORKI NG AS A SMALL RTO AGENT. HE EARNS A SMALL AMOUNTS FROM EV ERY JOB HE ATTENDS ON BEHALF OF HIS CUSTOMERS. CALCULATION OF HIS EARNING FROM EVERY TYPE OF WORK FOR THE PERIOD COVERED WERE NOTED IN THE DIARIES PERTAINING TO THE PERIOD 12.12.2012 TO 16.08.2013. 1.2 GIVEN BELOW IS A SUMMARY OF INCOME SHOWN IN REGULAR RETURNS, IN RETURNS FILED U/S 153A ON 02/09/2014, INCOME SAURABH AGRAWAL 6 REVISED DURING THE COURSE OF ASSESSMENT PROCEEDINGS , INCOME ASSESSED BY THE AO AND INCOME ENHANCED BY LD. CIT(A ) : A.Y. INCOME RETURNED U/S. 139 AND U/S 153A REVIS ED INCOME OFFERED DURING ASSESSMENT ASSE SSED BY A.O. (COLUMN 2 + 3, IN - STEAD OF 3 ALONE)* INCOME ASSESSED BY LD. CIT APPEALS 1 2 3 4 = (2+3) 5 2008-09 1,06,260 3,00,000 4,06,260 729742 2009-10 1,39,370 3,60,000 4,99,370 839204 2010-11 1,34,950 4,20,000 5,54,950 965085 2011-12 1,59,980 4,80,000 6,39,980 1109847 2012-13 1,78,460 5,40,000 7,18,460 1276325 * ONLY THE INCOME DISPUTED BEFORE HON. BENCH IS SH OWN. ADDITIONS OF RS. 3900000 AND RS. 1470000 IN AY 2008 -09 AND AY 2012-13 RESPECTIVELY DELETED IN FIRST APPEAL AR E EXCLUDED. 1.3 ASSESSMENT BY LD. AO : DURING THE ASSESSMENT PROCEEDINGS U/S. 153A, APPELLANT REVISED HIS INCOME AT THE AMOUNT AS SHOWN IN COLUMN 3 ABOVE. HOWEVER, LD. AO DID NOT ADJUST THE INCOME ALREADY OFFERED IN THE RETURNS SU BMITTED (AS PER COLUMN 2) AND HE ASSESSED THE REVISED INCOME SO OFFERED AS THE ADDITIONAL UNDISCLOSED INCOME. LD. AO BASE D THE ADDITIONS STATING THE QUANTUM OF INVESTMENTS IN PROPERTIES WHICH LATER ON PROVED TO BE INCORRECT AS LD. CIT ( A) DELETED THE ADDITION OF RS. 39 LAKH SO MADE IN AY 2008-09. THUS THE VERY BASIS OF ADDITION PROVED TO BE WRONG. 1.4 LD. A.O. ALSO WRONGLY CONCLUDED THAT SINCE THE APPELLANT HAS NOT SHOWN CORRECT SOURCE OF HIS INCO ME SO HE TAXED THE REVISED INCOME OFFERED AS INCOME FROM UN DISCLOSED SOURCE. IT IS PERTINENT TO NOTE THAT LD. A.O. NEVER DISPUTED THE SOURCE OF INCOME OF ASSESSEE AT ANY TIME DURING THE ENTIRE ASSESSMENT PROCEEDINGS. THE SOURCE OF INCOME OF APP ELLANT IS WELL SETTLED AND ESTABLISHED IN ALL THE PREVIOUS RE TURNS WHICH SAURABH AGRAWAL 7 ARE ON RECORD AS WELL AS IN THE DIARIES SEIZED FROM HIM. LD. A.O. ACTED IN A WHIMSICAL MANNER AND ADDED THIS AMOUNT AS INCOME FROM UNDISCLOSED SOURCE. APPELLANT HAD NO BUSINESS INCOME OTHER THAN RTO AGENCY BUSINESS. SO THE CONCL USION OF LD. A.O. IS PERVERSE AND CONTRARY TO FACTS AND RECO RDS. 2.1 ENHANCEMENT BY LD. CIT (A) : IT IS HUMBLY SUBMITTED THAT NO INCRIMINATING MATE RIAL WAS FOUND DURING COURSE OF SEARCH PROCEEDINGS PERTAINING TO THESE FIVE YEARS. SINCE AO COULD NOT DISTURB THE INCOME FOR THESE YEARS, SO LD. CIT ALSO COULD N OT DO . THEREFORE ENHANCEMENT BY LD. CIT (A) IS ILLEGAL A ND BAD IN LAW. WE RELY ON THE FOLLOWING DECISIONS : A. CIT VS SINHGHAD TECHNICAL EDUCATION SOCIETY (20 17) 397 ITR 344 (SC) B. CIT V/S MECHMEN (2015) 26 ITJ 93 (MP) C. LMJ INTERNATIONAL LTD V/S DCIT 119 TTJ 214 (KO L) D. ANANT STEEL PRIVATE LIMITED V/S ASST. CIT (2016 ) 28 ITJ 47 (TRIBUNAL INDORE) E. DY. CIT V/S KALANI BROTHERS (INDORE) PVT. LTD. (2016) 27 ITJ 286 (TRIB. INDORE) F. MUKESH SANGLA HUF V/S DY. CIT (2016) 27 ITJ 172 (TRIB. INDORE) G. J.C. SHARMA & SONS V/S ASST. CIT (2015) 26 ITJ 7 40 (TRIB. INDORE) H. ASST. CIT V/S TIKAMCHAND AGRAWAL (2015) 25 ITJ 647 (TRIB. RAIPUR) I. RAWAL DAS JASWANI V/S ASST. CIT (2015) 25 ITJ 55 (TRIB. RAIPUR) APPELLANT REQUESTED BEFORE LD. CIT (APPEALS) TO R ESTORE THE REVISED INCOME AS PER COLUMN NO. 3 ABOVE IN PLACE OF AS SHOWN IN COLUMN 4. HOWEVER, LD. CIT(A) HOLD THE VIEW THAT THERE WOULD HAVE BEEN AN INCREASE IN GROSS INCOME @ 15% AND ACCORDINGLY HYPOTHETICALLY CALCULATED THE INCOME AT HIGHER LEVEL [PB PAGE 115-BACKSIDE]. THERE IS NO BASIS FOR SUCH ARBITRARY INCREASE HENCE THE SAME IS BAD IN LAW IN VIEW OF THE FACT THAT SAURABH AGRAWAL 8 NO INCRIMINATING MATERIAL WAS FOUND TO SUPPORT SU CH INCREASE. LD. CIT(A) DID NOT GIVE ANY REASON AS TO WHY THE IN COME ASSESSED BY THE LD. AO WAS NOT CORRECT. 2.3 LD. CIT (A) DID NOT MAKE ANY PROPER CASE FOR ENHANCEMENT OF INCOME SUCH AS ANY ERROR, OMMISSION OR NON CONSIDERATION OF MATERIAL. SHE SIMPLY STATED, 'I AM OF THE VIEW IT WOULD BE FAIR TO TAKE 15% INCREASE IN BUSINESS E VERY YEAR...'. HENCE THIS INCREASE IS ARBITRARY. 2.4 CALCULATION OF ENHANCED INCOME IS ALSO ARBIT RARY AS CIT(A) HAS TAKEN THE BASE OF APPELLANT'S INCOME FOR AY 2013-14 WHICH IS NOT RELEVANT. 3.1 THE INCOME RETURNED BY THE APPELLANT HAS NOT BEEN ADJUSTED IN THE ASSESSED INCOME BOTH BY THE AO AND LD. CIT(A). AS THE INCOME IN THE RETURN IS OFFERED UND ER THE HEAD 'BUSINESS INCOME' WHICH IS THE ONLY SOURCE OF INCOM E OF THE APPELLANT, HENCE IT OBVIOUSLY MEAN THAT THE INCOME OFFERED DURING THE COURSE OF ASSESSMENT PROCEEDINGS IS IN COME FROM BUSINESS. SINCE THE INCOME WAS REVISED, IT INCLUDED RETURNED INCOME ALSO. IN VIEW OF THE ABOVE FACTS, IT IS HUMBLY REQUESTED THAT THE INCOME OFFERED BY THE APPELLANT DURING THE COURSE O F ASSESSMENT PROCEEDINGS (AS PER COLUMN NO. 3) MAY KI NDLY BE RESTORED, AND OBLIGE. GROUND OF APPEAL FOR A.Y. 2013-14 {2013-14 NOT HEARD ON 13.03.2019} 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LEARNED CIT(A) ERRED IN NOT ACCEPTING THE INCOME OFFERED BY THE APPELLANT BY ALLOWING EXPENSES @ 20% INSTEAD OF C LAIMED @ 40% OF GROSS RECEIPTS.' IN RESPECT OF THE ABOVE IT IS HUMBLY SUBMITTED AS U NDER : SAURABH AGRAWAL 9 4.1 GIVEN BELOW IS A SUMMARY OF INCOME SHOWN IN REGULAR RETURNS, IN RETURNS FILED U/S 153A ON 02/09/2014, INCOME REVISED DURING THE COURSE OF ASSESSMENT PROCEEDINGS , INCOME ASSESSED BY THE AO AND INCOME ENHANCED BY LD. CIT(A ) : A.Y. INCO ME RETURNED U/S 139 AND U/S 153A REVISED INCOME OFFERED DURING ASSESSMENT INCOME ASSESSED BY A.O. AND REMARKS INCO ME ASSESSED BY LD. CIT APPEALS 1 2 3 4 5 5 2013-14 1,92,830 9,90,000 (GROSS INCOME 16.50 LAKH MINUS EXPENSES 6.60 LAKHS) 18,42, 380 GROSS INCOME 16.50 LAKHS PLUS RETURNED INCOME 1467774 4.2 DURING THE COURSE OF ASSESSMENT PROCEEDING S, APPELLANT ACCEPTED GROSS RECEIPTS OF RS.16.50 LAKHS FOR THE AY 2013-14 AND AFTER CLAIMING ESTIMATED EXPENSES @40% OF GRO SS RECEIPTS HE OFFERED INCOME OF RS. 9.90 LAKHS. HOWEVER LD. AO DID NOT ALLOW ANY EXPENSE AND STRAIGHTWAY ADDED GROSS INCOM E OF RS.16.50 LAKH IN THE ASSESSMENT. LD. CIT(A) CONSI DERED THAT EXPENSES WOULD HAVE BEEN INCURRED BUT HOLD THAT 4 0% OF GROSS RECEIPTS IS NOT JUSTIFIED AND HOLD THAT SALA RIES, CONVEYANCE, MOBILE AND STATIONERY EXPENSES WOULD HA VE BEEN INCURRED AND 20% ONLY WAS CONSIDERED AS FAIR. C IT(A) DID NOT AGREE THAT COMMISSION EXPENSES WERE INCURRED A S THERE WAS NOTHING ON RECORD THAT COMMISSION HAS BEEN PAID . ACCORDINGLY EXPENSES @ 20% OF GROSS RECEIPTS WERE ALLOWED AS AGAINST 40% CLAIMED IN ASSESSMENT. 4.3 IT IS HUMBLY SUBMITTED THAT THE DETAILS OF P AYMENT OF COMMISSION WERE ALREADY THERE IN THE SEIZED RECORD S AND STATEMENTS OF THE APPELLANT. WE DRAW KIND ATTENTIO N TO STATEMENT DATED 25.02.2016 PB PAGE NO. 30 AND 33 W HEREIN APPELLANT HAS STATED HAVING PAID COMMISSION TO VARI OUS SAURABH AGRAWAL 10 PERSONS NAMED IN DIARIES BECAUSE THOSE PERSONS HAVE REFERRED RTO RELATED WORK TO THE APPELLANT. LD. CIT(A) DID NOT GIVE OPPORTUNITY TO GIVE EXPLANATION OF COMMISSION PAYME NT BEFORE REJECTING THE CLAIM. IN VIEW OF THE FACT THAT THE PAYMENT OF COMMISSION TO SOME PERSONS WHOSE NAMES ARE MENTIONED IN DIARIES AND TH E SAME HAS BEEN STATED IN THE STATEMENT RECORDED WHICH HAS NOT BEEN CONTRADICTED BY AO OR CIT(A), NO DISALLOWANCE COULD HAVE BEEN MADE AND ESTIMATED EXPENSES @ 40% INCLUDING COMMISS ION SHOULD HAVE BEEN ALLOWED. 6. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE (DR) SUPPORTED THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THERE IS NO INFIRMITY INTO THE ORDER OF THE LD. CIT (A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORDS AND GONE THROUGH THE ORDER S OF THE AUTHORITIES BELOW. LD. CIT(A) ESTIMATED THE IN COME BY OBSERVING AS UNDER: 6. AFTER CONSIDERING ALL THE FACTS AND CIRCUMSTANC ES OF THE CASE, I AM OF THE VIEW THAT THE ESTIMATION OF I NCOME HAS BEEN CORRECTLY DONE ON PRO-RATA BASIS ON THE EN TRIES FOUND FOR THE PERIOD 12/12/2012 TO 16/08/2013. TAKING THE AVERAGE OF RS.1,52,893/- P.M. THE GROSS INCOME FOR F.Y. 2012-13 CAN BE ESTIMATED AT RS.18,34,718/-. HOWEVER, I DO NOT SEEN ANY JUSTIFIC ATION IN THE APPELLANTS CLAIM OF 40% AS EXPENSES ESPECIA LLY AS IT IS SHOWING SUBSTANTIAL EXPENDITURE ON COMMISS ION SAURABH AGRAWAL 11 FOR WHICH THERE IS NO EVIDENCE PLACED ON RECORD. CONSIDERING THE VOLUME OF WORK HANDLED BY THE APPELLANT ON A DAILY BASIS AS CAN BE SEEN FROM THE SEIZED DIARIES, IT IS LOGICAL TO ACCEPT THAT ASSIST ANTS WOULD BE REQUIRED AND EXPENDITURE INCURRED ON PHONE CALLS, PHOTOCOPY AND CONVEYANCE ETC. THUS, I AM OF THE VIEW THAT 20% IS A FAIR ESTIMATE OF THE EXPENSES WH ICH MORE THAN COVERS THE SALARIES, PETROL AND CONVEYANC E, MOBILE, STATIONARY PHOTOCOPY EXPENSES ESTIMATED BY THE APPELLANT HIMSELF DURING THE ASSESSMENT PROCEEDINGS . THE INCOME FOR A.Y. 2013-14 ON ACCOUNT OF COMMISSIO N IS THEREFORE WORKED OUT TO RS.14,67,774/- AFTER ALL OWING 20% EXPENSES FROM THE GROSS INCOME ESTIMATED AT RS.18,34,718/-. 6.1 IT IS SEEN THAT THE APPELLANT IN ITS VARIOUS SUBMISSION HAS NOT GIVEN ANY CONCRETE BASIS FOR WORKING OUT THE ESTIMATED INCOME FOR THE EARLIER YE ARS. I AM OF THE VIEW THAT IT WOULD BE FAIR TO TAKE 15% INCREASE IN BUSINESS EVERY YEAR FROM A.Y. 2008-09 T O A.Y. 2013-14 WHICH CAN BE TAKEN AS THE PEAK PERIOD OF ALL THE YEARS AS THERE IS NO EVIDENCE TO SHOW OTHER WISE. ALSO I FIND THAT THERE IS NO JUSTIFICATION FOR ADJU STING THE INCOME DECLARED IN THE RETURN FILED U/S 153A AGAINS T THIS ESTIMATED COMMISSION INCOME ON THE BASIS OF TH E SEIZED DIARIES AS THE APPELLANT HAS FIALED TO SHOW THAT THE INCOME DECLARED IN THE RETURN INCLUDES THIS INC OME. 6.2 DURING THE APPEAL PROCEEDINGS VIDE ORDER SHEET ENTRY DATED 16.08.2017 THE APPELLANT WAS ASKED TO SUBMIT AS TO WHY INCOME SHOULD NOT BE ENHANCED U/S 251(1)(A) FOR A.YS. 2008-090 TO 2012-13. THE APPELL ANT AGAIN RELIED ON ITS SUBMISSIONS STATING THAT 40% HA D BEEN INCURRED AS EXPENDITURE AND DID NOT MAKE SPECI FIC SUBMISSIONS REGARDING INCREASE IN BUSINESS TO BE TA KEN AT 15% FROM A.Y. 2008-09 TO 2014-15. SAURABH AGRAWAL 12 8. ON THE ABOVE FINDING OF THE LD. CIT(A), IT IS NOT ICED THAT THE ENHANCEMENT IS MADE PURELY ON THE ESTIMATION BASI S AND ADHOC BASIS. FOR EARNING COMMISSION THE ASSESSEE WOULD HAVE INCURRED EXPENDITURE. IT CANNOT BE PRESUME D THAT NO EXPENDITURE WAS INCURRED. AFTER CONSIDERING THE TOTALITY OF THE FACTS AND THE MATERIAL PLACED BEFORE US W E SET ASIDE THE FINDING OF THE LD. CIT(A) AND RESTORE THAT O F THE ASSESSING OFFICER ON THIS ISSUE. THUS ADDITION OF RS.3,00,000/- IS SUSTAINED THE EFFECTIVE GROUND RAISE D IN THIS APPEAL IS ALLOWED AS INDICATED HEREIN ABOVE. APPEAL O F THE ASSESSEE IS PARTLY ALLOWED. NOW COMING TO THE ASSESSEES APPEAL IN IT(SS)ANOS.299 TO 302/IND/2017 9. BOTH THE PARTIES SUBMITTED THAT FACTS AND CIRCUMSTANC ES OF THE PRESENT APPEALS ARE IDENTICAL TO THE FACTS AND SAURABH AGRAWAL 13 CIRCUMSTANCES OF THE APPEAL IN IT(SS)ANO.298/IND/2017. THEREFORE, FOLLOWING THE REASONING GIVEN IN THE ABOVE CASE, THE PRESENT APPEALS ARE ALSO ALLOWED. 10. IN THE RESULT, THIS BUNCH OF FIVE APPEALS OF THE ASSESSEE IN IT(SS)ANO.298 TO 302/IND/2017 ARE PARTLY ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 22.03.20 19. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIAL MEMBER INDORE; DATED : 22/03/2019 PATEL, P.S/. . . COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE