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Income Tax Appellate Tribunal, MUMBAI BENCH “F”, MUMBAI
Before: SHRI C.N. PRASAD & SHRI N.K. PRADHAN
ORDER PER BENCH The captioned appeals filed by the assessee are directed agains the order of the Commissioner of Income Tax (Appeals)-51 [hereinafter ‘CIT(A)’] and arise out of the penalty levied u/s 271(1)(c) of the Income Tax Act, 1961 (the Act). As common issues are involved, we are Mr. Vijay Kumar R. 2 5677, 5678/Mum/2018 proceeding to dispose them off through a consolidated order for the sake of convenience. Facts being identical, we begin with the AY 2010- 11.
The grounds of appeal filed by the assessee read as under:
1. On the facts and circumstance of the case and in law, the learned CIT(A) erred in directing the Assessing Officer to levy penalty u/s 271(1)(c) after re-quantifying quantum additions as per the Hon'ble ITAT, Mumbai order dated 16.08.2017 2. On the facts and circumstance of the case and in law, the learned CIT(A) erred in confirming the penalty u/s 271(1)(c) was leviable in respect of estimated addition towards commission income on accommodation entries allegedly given by the assessee even though not admitted by assesse as such. 3. On the facts and circumstances of the case and in law, the learned CIT(A) failed to appreciate that the Hon'ble ITAT, Mumbai through its vide order dated 16.08.2017 had determined the commission income of the appellant by adopting on an ad-hoc basis @1% of the gross value of accommodation entries during the year, the same being an estimate and not based on any concrete fact or evidence and therefore does not fall within the ambit of concealment of income or furnishing inaccurate particulars of income on which penalty u/s 271(1)(c) can be levied. 4. On the facts and circumstances of the case and in law, the learned CIT(A) failed to appreciate that when there is difference of opinion as to how much income should be estimated for accommodation transactions, the same amounts to two views on the same issue, under such situation penalty u/s 271(1)(c) cannot be imposed. 5. On the facts and circumstances of the case and in law, learned CIT(A) failed to appreciate that in absence of specific charge of concealment of income or furnishing of inaccurate particulars of income, the entire proceedings is Mr. Vijay Kumar R. 3 5677, 5678/Mum/2018 unlawful & therefore penalty imposed by Assessing Officer deserved to be deleted.
6. On the facts and circumstances of the case and in law, the learned CIT(A) erred in rejecting the contention of the appellant that penalty u/s 271(1)(c) is not leviable in this case since the income on accommodation transactions has been determined on estimated basis.
7. On the facts and circumstances of the case and in law, the learned CIT(A) failed to appreciate that the Assessing Officer did not provide reasonable opportunities to the appellant to represent his case and make necessary submission in the matter, which is violation of the principals of natural justice.
3. In a nutshell, the facts of the case are that a search and seizure action u/s 132 of the Act was conducted in PPP group of cases on 25.08.2011 and 27.08.2011. The assessee is one of the persons belonging to this group. In response to notice u/s 153A issued by the AO on 08.02.2013, the assessee filed a return of income on 25.03.2013 admitting a total income of Rs.3,17,360/-. In the assessment completed u/s 143(3) r.w.s. 153A dated 21.03.2014, the Assessing Officer (AO) inter-alia made the following additions : i. Addition on account of commission Rs.37,90,250/- income on total accommodation entries ii. Addition on account of commission Rs.15,05,204/- income on sale and purchase bills iii. Addition on account of DEPB Rs.33,06,523/- Aggrieved by the order of the AO, the assessee filed an appeal before the CIT(A), who vide order dated 15.02.2016 restricted the above additions to the extent of the following amounts :
Mr. Vijay Kumar R. 4 5677, 5678/Mum/2018 i. Addition on account of commission Rs.21,65,857/- income on total accommodation entries ii. Addition on account of commission Rs.8,60,117/- income on sale and purchase bills iii. Addition on account of DEPB Rs.33,06,523/- Subsequently, the AO levied a penalty of Rs.18,99,750/- u/s 271(1)(c) on the above additions.
Aggrieved by the penalty of Rs.18,99,750/- levied by the AO, the assessee filed an appeal before the CIT(A). So far as, the penalty levied on the addition on account of DEPB of Rs.33,06,523/- is concerned, the CIT(A) deleted it on the reason that the ITAT, Mumbai has deleted the quantum protective addition of Rs.33,06,523/- being the commission income from sale of DEPB licenses.
On the penalty levied by the AO on the other two additions, the CIT(A) held as under :
5.4 From the submissions of the assessee, it is observed that broadly, the assessee contends that the said 2 quantum additions related to commission earned on providing accommodation entries, on which penalty has been levied, have been determined on estimate basis and therefore the corresponding penalty should not have been levied. From the facts of the case leading to the search action, the findings of the search action, the filing of return in response to notice u/s 153A and the subsequent assessment, it can be observed that the assessee was taking a chance by sitting on a fence. It is clear that the intention of the assessee was to take a risk and disclose a lesser income in his return of income than what he was actually earning. It is noted that the quantum of accommodation entries provided by the assessee has not been estimated but it is only the profit earned from providing of accommodation entries, which was estimated @ 3.5% by the AO and Mr. Vijay Kumar R. 5 5677, 5678/Mum/2018 subsequently restricted by the Hon'ble ITAT to @1%. Since the quantum of accommodation entries has not been estimated, therefore, the benefit of non levy of penalty cannot be extended to the assessee. In support of this view, reliance is placed on the decision of the Hon'ble Delhi High Court in the case of Kalindi Rail Nirman Engg. Ltd. 51 taxmann.com 523 (Delhi) wherein levy of penalty on the additions made by estimating the income of the assessee by applying rate of 11% (agreed by the assessee) on the gross receipts has been upheld. Thus, the contention of the assessee that penalty is not leviable in its case since the unaccounted income has been determined by the AO on estimate basis is rejected. Therefore, in principle, no infirmity is found on the levy of penalty u/s 271(1)(c) on the quantum addition of commission earned on providing accommodation entries and also on the quantum addition of commission earned on debits/credits as per the bank statements, treated as accommodation entries. However, the AO is directed to quantify the said 2 additions as per the order of the ITAT in the quantum appeal and levy penalty only on the amounts so determined.
Before us, the Ld. counsel for the assessee submits that in the instant case the AO has estimated the commission rate at 3.5% of the transaction value whereas the CIT(A) has reduced it to 2% of all type of transaction. Finally, the Tribunal has held that the rate of commission should be adopted at 1% as against 2% estimated by the CIT(A). Thus the Ld. counsel argues that because of such variation from 3.5% to 2% and again to 1%, this is not a fit case for imposition of penalty u/s 271(1)(c) of the Act.
On the other hand, the Ld. Departmental Representative (DR) submits that the penalty has been levied by the AO on account of commission income on accommodation entries and addition on account Mr. Vijay Kumar R. 6 5677, 5678/Mum/2018 of commission on sale and purchase bills. These could be detected only because of the search and seizure action conducted by the Department on the assessee. Further relying on the decision in Kalindi Rail Nirman Engg. Ltd. (supra), the Ld. DR submits that the order passed by the CIT(A) be confirmed. In his reply, the Ld. counsel submits that the decision in Kalindi Rail Nirman Engg. Ltd. (supra) relied on by the Ld. DR is distinguishable from the instant case on the reason that the assessee herein has not agreed for any estimation of income.
We have heard the rival submissions and perused the relevant materials on record. The reasons for our decisions are given below. The ITAT ‘G’ Bench, Mumbai in assessee’s own case for AY 2010- 11 (ITA No. 3176/Mum/2016), AY 2011-12 (ITA No. 3177/Mum/2016) and AY 2012-13 (ITA No. 3178/Mum/2016) vide order dated 16.08.2017 has decided on the addition of Rs.37.90 lacs, Rs.39.34 lacs and Rs.18.47 lacs made by the AO under the head ‘commission out of bogus billings’ for the AYs 2010-11, 2011-12 and 2012-13 respectively and held at para 7 :
“7. We have heard the rival submissions and perused the material. We find that one of the major issue to be decided is the rate of commission to be taxed in the hands of the assessee. It is a fact that the assessee himself had admitted that he was providing non-genuine entries to various entities and was charging commission for it, that he would be issuing bogus bills, that through his personal bank account(RE),he would return cash after receiving cheques. Thus, there is no doubt about earning of commission by him for Mr. Vijay Kumar R. 7 5677, 5678/Mum/2018 non-genuine transactions. The AO had estimated the commission rate at 3.5% of the transaction value, whereas the FAA had reduced it to 2% for all type of transactions. The assessee had claimed that he was receiving commission at very low rate i.e.@0.10% to 0.025%.
In our opinion, the rate of commission for bogus transactions cannot be determined by applying rule of thumb. It depends upon so many factors like industry or business for which non genuine bills are issue, amount involved, type of entries provided etc. No two cases are similar. The entity availing facility of bogus bills sometimes contacts agents who in turn contacts hawala entry providers and it is possible that the beneficiary and the bogus bill provider may not know each other. In other cases, the bill provider may directly deal with beneficiary. Period of providing bogus bill is also one of the deciding factors. In short, many a factors affect the rate of commission. The Tribunal has, in the cases relied upon by both the parties, adopted on or other rate depending upon the particular facts of the case. The assessee was doing this business with the help of some persons including PKP and BH. Considering the above and the peculiar facts and circumstances of the case, we are of the opinion that commission rate for all the AY.s has to be estimated. We hold that the rate of commission should be adopted at 1% as against 2% estimated by the FAA. This rate has to be applied for all type of bogus transactions entered in to by the assessee for all the AY.s i.e. for bogus bills issued, for bogus entries provided or for cheques issued against cash receipt or any other kind of non-genuine entry. Effective ground of appeal, raised by the AO, stands dismissed for all the AY.s. involved.”
7.1 Further, adjudicating the addition of Rs.15.05 lacs and Rs.23.27 lacs for AYs 2010-11 and 2011-12 respectively regarding commission on sale and purchase bills in the said order, the Tribunal held at para 9.3:
Mr. Vijay Kumar R. 8 5677, 5678/Mum/2018 “9.3. We have heard the rival submissions and perused the material before us. We find that the assessee was maintaining an account for its proprietary concern namely RE, that the bank account reflected various transactions including deposits/withdrawal of cheques or cash and through RTGS, debits for retirement of bills and credit of certain bills purchased by the bank. It is a fact that the assessee had claimed before both the authorities that all the entries were not commission yielding entries, that certain entries pertained to PPP group, that no inquiry was made in that regard. There is no doubt that unaccounted income has to be brought to tax. But, for taxing it quantification of such income is a legal precondition. When the assessee had taken a specific plea that all the credit and debit entries did not result in commission income the AO had to give a finding about such entries. The FAA also did not call for a remand report in that regard. Therefore, in the interest of justice, we are of the opinion that the issue should be restored back to the file of the AO for fresh adjudication, who would afford a reasonable opportunity of hearing to the assessee. The assessee would provide the details of entries- appearing in the bank account of RE-that did not give rise to any income. The AO is directed to give a clear and speaking finding on each and every entry that is claimed to have not generated any income. The assessee would provide detail for both the AY.s and the AO would scrutinize all the entries and quantify the amount for those years.
As far as rate of commission is concerned, we would like to mention that same should be applied @ 1% for both the years. Ground of appeal raised by the AO, with regard to income from bank account, for the AY.s. 2010-11 and 2011-12 is adjudicated accordingly.”