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Income Tax Appellate Tribunal, DELHI BENCH: ‘G’: NEW DELHI
Before: SHRI H.S. SIDHU & SHRI ANADEE NATH MISSHRA
This appeal by the Assessee has been directed against the order of Learned Commissioner of Income Tax (Appeals)-III, [‘Ld. CIT(A)’, for short] Kanpur, dated 18.11.2016 for Assessment Year 2007-08, on the following grounds:
“1. The CIT(A) erred in upholding the order of A.O. making addition of Rs. 2,00,000/- on account of cash deposits in the bank account without appreciating that since admittedly the appellant has been carrying on the business of providing accommodation entries, amount of cash deposits was part of the business and, accordingly, same could not be added u/s 68 of the Act and only commission income thereon could be considered as income.
. Mr. Tarun Goyal.
That the CIT(A) also failed to appreciate that in case of other companies of the ground managed by Mr. Tarun Goyal, only commission income was considered by the A.O. in respect of entries for deposits in the bank and accordingly adding the amount of cash deposits in the case of the appellant was contrary to the stand of the A.O. in other cases.
That the CIT(A) also erred in referring to and following the order of CIT(A)- 33, New Delhi, for A.Y. 2004-05, dated 03.08.2012, which order has already been set aside by ITAT vide its order dated 18.10.2013 and, accordingly, the CIT(A) ought to have decided the appeal as per the direction of ITAT vide its order referred above.
That the CIT(A) erred in not determining the commission income in respect of cash deposits in the bank account @ 0.25% taking into consideration precedents in this regard in other cases and also statement of Mr. Tarun Goyal made during the course of search and also giving a holding that since the amount of commission at above rate has already been offered by the appellant in A.Y. 2009-10, no addition was called for in the year under appeal.
That the appellant crave leave to add, amend or modify any ground hereinafter.”
(2) In this case, a search & seizure operation was conducted on 17.09.2010. In pursuance to that Assessment Order dated 30.03.2013 was passed by the Assessing Officer (“AO”, for short) wherein an addition of Rs. 2,00,001/- was made as income from undisclosed sources, on account of cash deposited in Bank. The assessee filed an appeal before the Ld. CIT(A), who, vide order dated 18.11.2016 dismissed the assessee’s appeal, holding as under:
“3.2 Facts and circumstances of the appeal have been considered carefully. Undisputedly, before the AO the appellant had failed to explain and substantiate the source of the deposits in the Bank account. As seen from the assessment order the facts and circumstances of the appeal in hand are found to be parimateria with the case of the appellant for AY 2004-05 where, also the appellant had failed to explain the source of cash deposits which prompted the AO to tax them u/s 68 and this action of the AO was upheld by the CIT(A). the appellant in the present appeal has brought no material at all on records to persuade me to take a different view.” (underlining supplied by us for emphasis)
. Mr. Tarun Goyal. (3) The present appeal before us has been filed by assessee against the aforesaid impugned order dated 18.11.2016 of the Ld. CIT(A). During the appellate proceedings in Income Tax Appellate Tribunal (“ITAT”, for short), the assessee filed copies of orders of Co-ordinate Bench of ITAT, Delhi, in assessee’s own case, for Assessment Years 2005-06 and 2006-07 (vide order dated 22.05.2019 in & 6716/Del/2016) and for Assessment Years 2003-04 and 2004-04 (vide order dated 18.10.2013 in ITA Nos. 4636 & 4637/Del/2012). At the time of hearing before us, the Ld. Counsel for assessee submitted that, vide aforesaid orders dated 22.05.2019 and 18.10.2013, ITAT has already, in identical facts and circumstances, restored the identical issue to the file of the AO for fresh adjudication. In view of the foregoing, the Ld. Counsel for assessee submitted that for the Assessment Year 2007-08 also, the issue may be restored to the file of the AO for fresh adjudication. The Ld. CIT(DR), who appeared for Revenue, filed a copy of the written submission pertaining to aforesaid appeals in the case of the assessee for Assessment Years 2005-06 and 2006-07 in ITA Nos.- 6715 & 6716/Del/2016. He placed reliance on the same. However, he failed to bring any facts or circumstances to our attention to distinguish the present Assessment Year before us (i.e 2007-08) from the facts and circumstances for the Assessment Years 2003-04 & 2004-05 and 2005-06 & 2006-07 for which ITAT has already passed orders vide aforesaid orders dated 18.10.2013 and 22.05.2019.
(4) We have heard both sides patiently and perused the materials available on record. We have also considered the judicial precedents brought to our attention.
During the appellate proceedings, we find that written submissions of the Ld. CIT(DR),
. Mr. Tarun Goyal. pertaining to & 6716/Del/2016, in the case of the assessee himself, for Assessment Year 2005-06 and 2006-07 have already been considered by Co-ordinate Bench of ITAT while adjudicating the appeals, vide order dated 22.05.2019 in ITA Nos.
6715 & 6716/Del/2016. We also find that for Assessment Years 2003-04 and 2004-05, the Co-ordinate Bench of ITAT, Delhi, vide aforesaid order dated 18.10.2013 has set aside the disputed issue to the file of the AO for fresh adjudication in accordance with law. After considering the aforesaid order dated 18.10.2013, the Co-ordinate Bench of ITAT, Delhi, has passed order dated 22.05.2019 for Assessment Years 2005-06 and 2006-07 in ITA Nos.- 6715 & 6716/Del/2016, and following the aforesaid order dated 18.10.2013 for Assessment Years 2003-04 and 2004-05, the disputed issue for Assessment Year 2005-06 and 2006-07 were also restored to the file of the AO for fresh adjudication, vide aforesaid order dated 22.05.2019. The Ld. CIT(A), in paragraph no. 3.2 of the aforesaid impugned order dated 18.11.2016 (already reproduced in foregoing paragraph no. 2) held that facts and circumstances for Assessment Years 2007-08 are in pari-materia with Assessment Year 2004-05. It is not in dispute that facts and circumstances of this year are similar to facts and circumstances for Assessment Years 2003-04 & 2004-05 and 2005-06 & 2006-07. The Ld. CIT(DR) did not bring any material for our consideration to distinguish the facts and circumstances of this case for Assessment Year 2007-08 from facts and circumstances of Assessment Year 2003-04, 2004-05, 2005-06 and 2006-07 for which, on identical issue has already passed in aforesaid orders dated 18.10.2013 and 22.05.2019. The submissions of the Ld. CIT(DR) for Assessment Year 2005-06 and 2006-07 have already been considered in the . Mr. Tarun Goyal. aforesaid order dated 22.05.2019 of Co-ordinate Bench of ITAT, Delhi. Respectfully following the precedents in assessee’s own case for Assessment Years 2005-06 & 2006- 07 and 2003-04 & 2004-5 vide aforesaid order dated 22.05.2019 and 18.10.2013 in ITA Nos. – 6715 & 6716/Del/2016 and 4637 & 4637/Del/2012 respectively, we set aside the disputed issue to the file of the AO for fresh adjudication for Assessment Year 2007-08 also, with the direction to pass fresh order in accordance with law, after giving opportunity of being heard to the assessee.
(5) In the result, appeal of the assessee is partly allowed for statistical purposes.
Order pronounced in the open court on 26/7/2019