PANKAJ EXPORTS,GUJARAT vs. ACIT,CC-1(3) , MUMBAI

आदेश / ORDER

PER PAVAN KUMAR GADALE - JM:

1. On the fact and circumstances of the case and in law the Ld. CIT (A) erred in confirming the addition of alleged commission income arising out of alleged bogus unsecured loans, bogus purchases and bogus sales amounting to Rs. 16,78,542/- on substantive basis without appreciating the fact that the same amount has been substantively added in the case of Shri Bhanwarlal Jain, thereby making the same addition in the hands of two assessees leading to double taxation.

2. On the facts and circumstances of the case and in law the Ld. CIT(A) erred in confirming addition of alleged commission income arising out of alleged bogus unsecured loans, bogus sales and bogus purchases, without appreciating the fact that for the very same assessee for previous assessment years, being A.Y. 2008-09 to A.Y. 2014-15, the Ld. CIT(A) has deleted the protective addition of alleged commission income, thereby not following the principal of consistency.

3. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in changing protective addition of commission income on alleged bogus sales, purchase and unsecured loan to substantive addition on the incorrect presumption that the same was not considered in the order of the Hon'ble ITAT in the case of Shri Bhanwarlal Jain.

4. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in changing protective addition to substantive addition without issuing any show cause notice or opportunity of being heard to the appellant, which is in violation of section 251(2) of the Income Tax Act, 1961 and in violation of the principles of natural justice.

5. On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in confirming the addition made by Ld. AO without providing any opportunity of cross examination, without any corroborative evidence and without providing copy of statements relied upon.

6. The appellant craves to add, alter, classify, reclassify, delete or modify any of the above grounds of appeal and requests to consider each of the above grounds without prejudice to one another.

2. The brief facts of the case are that the assessee is a partnership firm and is engaged in the business of trading of diamonds. The assessee has filed the return of income for the A.Y 2015-16 on 28.09.2015 disclosing a total income of Rs.66,440/-. Subsequently the case was selected for scrutiny under the CASS and notice u/s 143(2) and 142(1) of the Act are issued. In compliance to notice, the Ld. AR of the assessee appeared from time to time and filed the details. The AO found that the assessee is beneficiary of transactions with Shri Bhawarlal Jain Group entities /concerns, who are engaged in providing the accommodation entries. The AO has relied on the proceedings of Shri Bhawarlal Jain Group and issued a show cause notice. The assesee has filed the submissions vide letter dated 27-11-2017 referred at Para 2.3 of the order. Whereas the A.O has dealt on the details/information of accommodation entries and purchase transactions and was not satisfied with the explanations and estimated income on the transactions which works out to Rs.16,78,542/- and assessed the total income of Rs.17,44,980/- and passed the order u/s 143(3) of the Act dated 07.12.2017.

4. At the time of hearing the Ld. AR submitted that the CIT(A) has erred in sustaining the additions and overlooked the various facts and information that the assessee has maintained books of accounts, sales and purchase register to substantiate the transactions. Further The Ld. AR relied on the judicial decisions of the Hon’ble Tribunal on the identical facts granting the relief and substantiated the submissions with the factual paper book and prayed for allowing the appeal. Contra, the Ld. DR supported the order of the CIT(A).

5. Heard the rival submissions and perused the material on record. The sole matrix of the disputed issue that the CIT(A) has erred in sustaining the additions in the nature of estimating the income. Whereas the Honble Tribunal on the identical/similar facts for the A.Y 2015-16 has granted relief in the case of M/s Mahalaxmi Gems Pvt Ltd and others Vs ACIT in & 360/Mum/2022 dated 26-07-2022 has observed at Para 9 to 14 of the order read as under:

on merits for adjudication. As far as the addition made in the sum of Rs 19,78,180/- towards commission income for providing accommodation entries, we find that the very same sum has been already added in the hands of Shri Bhanwarlal Jain on substantivebasis, on which fact, there is absolutely no dispute. We find that in the assessments framed in the hands of the assessee herein pursuant to search for Asst Years 2008-09 to 2014-15, similar protective addition on account of commission income for providing accommodation entries was deleted by the ld. CIT(A) in the hands of the assessee and the revenue did not even challenge the same further before this tribunal. We further find that the ld. AO in para 6 of his order had emphatically mentioned that all the activities during the previous year relevant to the block period are identical to that of the assessee’s activities during the previous year under consideration. While this is so, there is no reason for the ld. CIT(A) to take a divergent stand of confirming the protective addition of commission income in the hands of the assessee herein for the Asst Year 2015-16. Moreover, for the same block period pertaining to Asst Years 2008-09 to 2014-15, we find that this tribunal in dated 6.8.2021 had estimated the commission income in the hands of Shri Bhanwarlal Jain on substantive basis. Hence consistently, the substantive addition has always been made only in the hands of Shri Bhanwarlal Jain for this commission income. Hence there could be no confusion that would lie in the mind of the revenue, as to in whose hands this commission income should be assessed, in order to justify its protective addition. Hence we direct the ld. AO to delete the protective addition of commission income of Rs 19,78,180/- made in the hands of the assessee herein for the Asst Year 2015-16.

5. With regard to the addition of Gross profit made in the sum of Rs 4,01,58,089/- on account of alleged low gross profit declared by the assessee, we find that the ld. AO had estimated the gross profit of the assessee by taking a view without prejudice to the addition of alleged undisclosed commission income. This addition was solely made on the basis that the assessee had shown less gross profit as compared to the other alleged concerns of Shri Bhanwarlal Jain. We find that the very same issue was subject matter of adjudication by this tribunal in the case of Rose Impex vs ACIT in dated 29.3.2022, which is one of the alleged concerns of Shri Bhanwarlal Jain. The relevant operative portion of the said tribunal order is reproduced hereunder:- 8. However, the A.O has made another addition on the ground that gross profit rate declared by the assessee in the year under consideration is too low i.e 1.19% as compared to the gross profit percentage declared by other such concern of the Shri Bhanwarlal Jain group. The A.O adopted average gross profit rate of 11.5% and made addition for the difference in gross profit rate of 10.31% [11.5 (-) 1.19] and computed addition of rs.2,71,98,014/-. Before us, the ld. Counsel of the assessee has submitted that on one side, on the basis of evidences found during the course of survey/search in the case of Shri Bhanwarlal Jain, the A.O has treated the assessee as not engaged in genuine business of the trading of diamond and held to be accommodation entry provider and assessed on protective basis. Whereas on the other hand, the A.O is making addition treating the business of trading of diamond recorded in books of account as genuine and making addition for low gross profit rate. The ld. CIT(A) has also confirmed this addition to compensate low gross profit rate. The ld. Counsel of the assessee submitted that the IncomeTax authorities cannot blow hot and cold in the same breath. According to him if Income Tax Department has accepted the assessee as controlled and managed by Shri Bhanwarlal Jain for providing accommodation entries, then addition to compensate gross profit rate is not justified. The ld. D.R also could not controvert the fact that the assessee has been held a concern controlled by Shri Bhanwarlal Jain engaged only for providing accommodation entry bills. In our opinion such circumstances, the lower authorities are not justified in sustaining the addition to cover the low gross profit rate on the basis of books of account of the assessee which has not been accepted by the department and percentage commission has been assessed treating the purchase and sales recorded in books of accounts. Similarly commission income has also been estimated on the unsecured loan advanced by the assessee also. We have noted that in the case of Bhanwarlal Jain, the department has taken stand that accommodation entries have been provided through the assessee concern. The revenue has to take one stand and cannot treat the assessee simultaneously as accommodation entry provider as well as genuine concern engaged in trading of the diamond. In view of the above discussion, we set aside the finding of the ld. CIT(A) on the merit of the addition and direct the A.O to delete the addition of Rs.2,71,98,014/-. 5.1. Respectfully following the aforesaid order of this tribunal, we delete the addition made on account of Gross profit of Rs 4,01,58,089/- in the hands of the assessee herein for the Asst Year 2015-16.

6. We further find from the perusal of the order of the ld. CIT(A) that an addition towards commission income of Rs 2,65,830/- being 0.075% of total sales turnover was converted from protective to substantive basis by the ld. CIT(A). We find that the total sales turnover figure is Rs 35,44,40,325/-. We find that the ld. AO had sought to add commission income @ 0.075% on this turnover on the premise that no addition of commission income has been made for accommodation entry of sales. We find from the perusal of the assessment order that the ld. AO had already estimated the commission income on this sales figure also which is very much evident from the table prepared by the ld. AO in para 12 of his order. Commission on bogus sales is already added in the sum of Rs 2,65,830/- by the ld. AO and the said figure is duly included in the total commission income figure of Rs 19,78,180/- made by the ld. AO on protective basis. Hence adding the very same sum again would only result in double addition and hence directed to be deleted herein. 6.1. Moreover, we find that the ld. CIT(A) had sought to make this addition of Rs 2,65,830/- on substantive basis. In our considered opinion, conversion of protective addition into substantive addition would tantamount to enhancement of income made by the ld. CIT(A), which could be done only after issuance of enhancement notice to the assessee. Admittedly, no such enhancement notice in terms of section 251(2) of the Act has been given to the assessee by the ld. CIT(A). On this count itself, this addition made on substantive basis in the sum of Rs 2,65,830/- towards commission on bogus sales is deleted.

6.2. Further we find that the ld. CIT(A) by placing reliance on the order of this tribunal in the case of Shri Bhanwarlal Jain in dated 6.8.2021 had incorrectly concluded that the said order of Shri Bhanwarlal Jain did not consider the addition on account of commission on sales, and accordingly made substantive addition in the hands of the assessee. This is factually incorrect in as much as we find that this tribunal had duly considered the addition on account of alleged commission on sales in the order of Shri Bhanwarlal Jain in Page 30 under point 2 of the table under the caption “Accomodation entries of bogus purchases provided by assessee”. If entries of bogus purchases are provided by assessee, then the same represents sales made by assessee. This has not been understood by the ld. CIT(A) while making this substantive addition. In any case, the substantive addition of commission income has already been made in the hands of Shri Bhanwarlal Jain and the similar addition was also confirmed in his hands during the block period also. Hence there cannot be any further addition of Rs 2,65,830/- in the hands of the assessee herein even on protective basis. Accordingly, the same is deleted.

by the assessee challenging the legality / validity of reassessment proceedings has been rendered academic and therefore we are not adjudicating the same and the same is left open.”

12. Since the issue is exactly similar and grounds as well as the facts are identical, respectfully following the above said decision, we allow the grounds raised by the assessee. We order accordingly.

13. Coming to other appeals, Both the parties before us submitted that the facts and nature of additions made in the hands of other assessees viz Shri Mahavir M. Jain in ITA.No. 352/Mum/2022 and Ramnivas Choyal in ITA.No. 360/Mum/2022 are identical, hence the decision rendered hereinabove in the case of M/s.Mahalaxmi Gems Pvt. Ltd., for the A.Y.2015-16, shall apply mutatis mutandis to other assessees also, except with variance in figures.

14. In the result, appeals of the assessees are allowed.

in favour of the assessee.

7. In the result, the appeal filed by the assessee is allowed.