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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Before: SRI MAHAVIR SINGH
AadoSa / O R D E R महावीर स ुंह, न्याययक दस्य/ PER MAHAVIR SINGH, JM:
This appeal of the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-48, Mumbai [in short CIT(A)], in Appeal No. CIT(A)48/I.T-68/DCCC-2(1)/2017-18, dated 09-05-2018. The Assessment was framed by the Deputy Commissioner of Income Tax, C.C-2(1), Mumbai (in short DCIT/ITO/ AO) for the A.Y. 2010-11 vide order dated, under section 143(3) of the Income-tax Act, 1961 (hereinafter ‘the Act’).
2. The only issue in this appeal of assessee is against the order of the CIT(A) restricting the alleged commission earned on entries by the assessee at Rs. 20,000/- as against assessed by the Assessing Officer 2 at Rs. Rs. 76,060/- at the rate of 5%. For this, the Assessee has raised various grounds including assumption of jurisdiction for reopening of assessment, which are as under: - “1. The Learned Assessing Officer erred in reopening assessment u/s. 147 without jurisdiction and CIT(A)-48 erred in confirming the same.
The Learned Assessing Officer erred in assessing the income of Rs.10,31,310/- instead of the return income of Rs. 7,31,020 and CIT(A)- 48 erred in confirming the same.
The Learned Assessing Officer erred in recording incorrect fact in Para no. 10,11,12 and 13 page of the assessment order dated 29th September, 2017 without understanding the facts of the case that the total transaction for the year 2010-11 which is marked as ‘e’ by accountant is Rs. 1,52,11,694/- and the assessee is alleged to have earned Rs.6000 on one crore of transaction in question number 25 of the statement the assessee or the AR has never stated that the addition should be Rs.9000 per crore and CIT(A)-48 erred in confirming the same.
The Learned Assessing Officer erred in stating that there was no evidence that there was mental harassment and pressure from the department by personnel visiting assessee’s premises u/s. 133A, inspite of the survey being carried out for three days, the assessee being 3 not allowed to leave office premises for three days and Assessee’s Chartered Accountant, Assessee’s father and Assessee’s wife confirming misbehavior, harassment and coercion before the assessing officer, and CIT(A)-48 erred in confirming the same in para 7.2 without appreciating that the complaint was immediate and the FIR cannot be filed against a government officer without permission of the central government.
The Learned Assessing Officer erred in ignoring the factual submission in the form of confirmation of third parties submitted by the assessee and CIT(A)-48 erred in confirming the same.
The Learned Assessing Officer erred in making an addition of Rs. 76,060/- being 0.5% of Rs.1,52.11,694/- in any arbitrary manner without appreciating the facts of the case and CIT(A) erred in restricting the same to Rs. 20,000/-.
The Learned Assessing Officer and CIT(A) 48 erred in not conducting any investigation with regards to the transaction which were as ‘e’ by the accountant and failed to issue even 133(6) notice to find out the genuineness of the transaction.
The Learned Assessing Officer erred in stating that the assessee has not explain the transaction in the course of ongoing assessment 4 proceedings without appreciating that the assessee statement was taken u/s. 131 by the invention wing where the assessee had explained that the marking were done by the accountant for sales made by the staff in assessee’s absence for verification purpose and that the said statement is on record and CIT(A) erred in confirming the same.
The Learned Assessing Officer erred in adding sum of Rs. 76,060/- to the assessee’s income and CIT(A) in reducing it to Rs. 20,000/- instead of deleting the same.
Without prejudice to the above grounds of appeal the learned Assessing Officer and CIT(A) erred in accepting the statement of the assessee in part and rejecting the same in part, the learned assessing officer accepts the answer to the question no. 24 in the statement given at the time of transfer and rejects the answer to question 25 in the same statement.
Without prejudice to the above grounds of appeal the learned Assessing Officer and CIT(A 48 erred in not restricting the disallowance to Rs.9000/- as per question no. 25 of the statement taken during the survey as the amount marked as ‘e ‘by the accountant is Rs. 1,52,11,694/- and the assessee is alleged to have earned Rs. 6000 on one crore of transaction in question number 25 of the statement.”
5 3. I have heard the rival contentions and gone through the facts and circumstances of the case. I noted that a survey action u/s. 133A of the Act, was carried on the premises of the assessee on 14-01-2017. During the survey proceedings the assessee admitted that he has done cash transactions with some of the parties to retain some on commission, but later on retracted his treatment stating that the statement taken by the Investigating Wing during survey was through coercion and threat. The assessee filed an affidavit on 24-01-2017 i.e. immediately after the survey. There are various allegations of coercion and threat and counter allegations by both the sides. I am not going to all these allegations. But I have gone through the orders of the Assessing Officer and that of the CIT(A). I also heard both the sides now and I am of the view that the Assessing Officer has merely estimated the commission income @ 0.5% of the alleged entries of sale and purchase of Rs. 1,52,11,694/-. The Assessing Officer estimated the commission at Rs.76,060/-. The CIT(A) reduced the estimation at Rs.20,000/- by observing as under:-