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Income Tax Appellate Tribunal, MUMBAI BENCHES “A”, MUMBAI
Before: Shri MAHAVIR SINGH, & Shri G. MANJUNATHA
सुनवाई क� तार�ख / Date of Hearing : 01/04/2019 10/04/2019 आदेश क� तार�ख /Date of Order: आदेश / O R D E R Per G. Manjunatha, (Accountant Member) These two appeals filed by the assessee are directed against separate, but identical orders of the Ld. CIT(A)-54, Mumbai, both dated 27/12/2016 and they pertains to Assessment Years 2008-09 and 2009-10. Since facts are identical and issues are common, for the sake of convenience, these appeals were heard together and are disposed of by this consolidated order.
2. The assessee, has more or less filed common grounds of appeal for both assessment years. For the sake of brevity, grounds of appeal taken for Assessment Year 2008-09 are reproduced hereunder:-
2 & 1975/Mum2017 Lalit Kumar M Sharma 1. Appellant was involved in the business of cheque and Draft discounting and rate of commission prevailing in market is ranging between 0.05% to 0.10%. Further the order passed by learned assessing officer and CIT (Appeal) as rate of commission 2% and 1% respectively.
Further it has already been decided by Honourable ITAT and High Court in number of cases having similar facts and accepted discounting Rate from 0.10% to 0.30%.
3. We enclosed herewith copy of case based on similar facts decided by the Bombay high Court in case Mohanlal Patel V/s dy.CIT accepting discounting rate 0.22%.
Appellant hereby requesting honorable ITAT to accept his appeal and give a chance to explain his side.
The brief, facts of the case are that the assessee has filed return of income for Assessment Year 2008-09 on 18/02/2009, declaring total income at Rs.1,62,480/-.
Thereafter, the case was reopened u/s 147 of the Income Tax Act, 1961 (hereinafter ‘the Act’) for the reasons recorded, as per which, the assessee is involved in the business of cheque discounting for various beneficiaries for commission, accordingly, notice u/s 148 was issued dated 30/03/2015 calling for return of income, however, such notice was returned back. Thereafter, notice u/s 142(1) of the Act, was issued and asked to furnish various details. The assessee neither appeared before the AO nor filed any details.
Therefore, the AO completed assessment u/s 144 r.w.s. 147 of the Act, by taking materials available on record and also other information obtained u/s 133(6) of the Act.
While doing so, the AO has determined commission income of 2% on total cheque discounting amount of the assessee and made addition of Rs.56,95,136/-. The relevant observations of the AO are reproduced hereunder:-
4.1 Information in this case was received on 30/03/2015 by the Dy. DIT (Inv.), Mumbai. As per the information, Shri. Mohd. Shafi Ansari having Eighteen different bank account in Union Bank of India, Null Bazar Branch, Mumbai. The information revealed that the assessee is in the practice of transferring of huge funds from one account to another and also the transaction pattern shown that there are huge deposits in cheque which were immediately withdrawn in cash or transferred by way of cheque. Shri Lalit M Sharma is one of the associates f Shri Mohd. Shafi Ansari. On perusal of the bank account of Shri Mohd. Ansari and its associates, it is seen that huge transactions made by them in the following bank account Shri Lalit M Sharma:
S. No. Name of the Account holder Account No. 1 Shri Lalit Kumar Sharma 319801010038438 2. Shri Lalit Kumar Sharma 319801010038608
4.2 Further in this, case the information has also been received from DDIT (Inv) Unit - 5(1) on 27/03/2015. The assessee has done cheque discounting business for the amount mentioned against different financial /ears through different concerns owned and operated by the assessee to M/s Kohinoor Industries from the following parties for the A. Y 2008-0g. The bogus cheque discounting entries indicate that the assessee entered into transaction for the aforesaid amoi.rit which was not genuine.
S. Name of the Agency A.Y. Total amount of No. cheque discounting business done 1 M/s Jagdish Agency 2008-09 19940131/- 2. M/s G G Agency 2008-09 5598500/- 3. M/s Sunder Textile 2008-09 131400017/- 4. M/s G. G. Agency 2008-09 152524148/- 5. Total 162524148/-
4.3 On verification from the records available, it is seen that Mr. [alit Jain is a Hawala Dealer is assessed in this charge and doing cheque discounting business from third party. He is collecting cheque and D.D. from other parties and immediately paying cash after deducting the commission at the rate 0.02%. After wards, he is depositing cheque and D.D. in the various bank account of his employee and withdrawn the money. For which he was paying Rs. 5,000/- to Rs. 10,000/- to the employees as a commission. Mr. Lalit 1. Jan was using their bank accounts of the following persons
4.4 It is clear from the above that assessee was an employee of Shri Lalit T. Jain and indulging in hawala transaction with him. Further as per statement recorded on 05/03/2015 by The DDIT(Inv.)-U-5(1), Murnbai, in which the assessee has also admitted that all the above mentioned concerns are proprietary concerns of the assessee and engaged in the business of cheque discounting. A summon u/s 131 of the I.T.Act,1961 Was issued to Shri Lalit T. Jain. In response to the summons u/S 131 of the I.T.Act,1961, Mr. taut T. Jain attended and1-.atement on oath u/s 131 was recorded 20/01/2016. In his statement Mr. [alit T. Jain has admitted that all the above 13 persons has worked with him upto year 2009)On asking to [alit Jain that can you produce the above 13 parties with their books of account, bank statement and Income tax details for verification. In response to that Mr. Lalit Jain has said that he don't know the recent address of any One of the persons mentioned above.
4.5 In view of the above and information received from the Investigation wing as well as assessment record of Mr. [alit T. Jain and also statement recorded it is clear that the assessee Shri Lalit M Sharma is one of the associates of Shri Mohd. Shafi Ansari and Mr. Lalit T. Jain (Both are indulging in hawala transactions). 4.6 The assessee is not co-operative and has also not taken any interest for complete the assessment proceedings in time. Since this is time barring case, I have no alternative but to complete the case within the specified time, therefore assessment is being completed on the basis of material available on record. 4.7 On verification of the bank statement of the assessee it is seen that the total credit entries amounting to Rs. 12,22,32,660- has been reflected in its bank account no. 319801010038438 & & 3198010100386C3 of Union Bank of India as well as credit entries amounting to Rs. 16,25,24,148/- reflected in the name of the four proprietary concerns of the assessee.
4.8 In response to the notices & summon issued neither anybody attended nor any details have been furnished by the assessee till date. T.he assessee was allowed sufficient and reasonable opportunities to explain the nature and source of the credit entries in the bank account of Union Bank of India, but the assessee has failed to do so. Till date no details/explanation and supporting evidences for entries credit in the bank accounts has been furnished by the assessee, therefore, it is assumed that the assessee has nothing to explain. The assessee has also failed to explain the source of cash credited in the bank account and what is the purpose for the same. 4.9 Since the assessee was the employee of Mr. [alit T. Jain and he was engaged in the bill discOunt919 activities by using its 13 employees bank account and paid commission to them, therefore, it is clear that he assessee was also indulging and bill discounting activity and received commission on it. In these kinds of activities people charge commission @ 1% to 2% in market therefore, commission @1% to 2% is standard rate in the similar kind of business.
4.10 Sire the assessee has not furnished any details/explanation modus oprendi of it business and amount credited in its bank account and also failed to explain the rate of commission received for cheque discounting, therefore, standard rate prevailing in the market @2% is to be taken herewith for his commission income received on total value
5 & 1975/Mum2017 Lalit Kumar M Sharma of cheque discounting amounting to Rs. 28,47,56,812/-, (12,22,32,664/- + 16,25,24,148/-) which comes to Rs. 56,95,136/-. 4.11 In view of the above, the commission income of Rs. 56,95,136/- are added to the total income of the assessee. Penalty proceedings u/s 271(1)(c) of the I.T. Act,1961 is also initiated for furnishing inaccurate particulars and concealments of its income. Penalty proceedings u/s.271(1)(b) of the Income-tax Act, 1961 are initiated separately for non-compliance to the statutory notice u/s 142(1) of the I.T.Act,1961. (Addition of Rs. 56,95,136/-) 4. Aggrieved by the order of the AO, the assessee preferred appeal before the Ld.
CIT(A). Before the Ld. CIT(A), the assessee submitted that commission income estimated by the AO on total turnover of cheque discounting business is excessive when compared prevailing market rate of commission on similar kind of business, accordingly, requested to make fair estimate of commission considering the rate of commission prevailing in the market in this kind of business.
The Ld. CIT(A) after considering the submissions of the assessee, observed that the assessee has accepted that the commission rate charged by the AO is excessive, but failed to controvert the findings recorded by the AO to arrive at conclusion that in this kind of business the prevailing rate of commission is 1 to 2%. Further, the assessee is non- cooperative, did not appear before the AO to produce necessary evidences and to contest the rate of commission in this line of business. Therefore, considering the facts, the Ld. CIT(A) scaled down commission income to 1% and accordingly deleted addition made by the AO towards commission income for Rs.28,47,568/- and balance amount of Rs.28,47,568/- has been confirmed. The relevant observations of the Ld. CIT(A) are as under:-
“6.4.1 I have considered the submissions of the appellant and perused the materials available on record. The appellant has requested to delete the addition made of Rs.
6 & 1975/Mum2017 Lalit Kumar M Sharma 56,95,136/-, being commission earned on cheque/bill discounting transactions. The appellant main contention is that the rate of commission earned at 2% adopted by the Ld. AO is without any basis and it is very high as against the prevailing market rate of 0.05% to 0.10% on such transactions. The contentions of the appellant have been considered carefully. From the submission made by the appellant it is apparent that he has not contested the facts narrated by the Ld. AC in the assessment order. The only grievance of the appellant is that the Ld. AC should not have adopted the rate of commission earned on such cheque/bill discounting transactions at 2% as against the prevailing market rate of 0.05% to 0.10%. However, the appellant has not submitted any proof/evidence in support of his contention that the prevailing market rate was 0.05% to 0.10%. In absence of such proof/evidence the contention of the appellant remains unsubstantiated. However, at the same time from perusal of assessment order if is observed that the Ld. AC has held that in these kinds of activities the rate of commission in the market is 1% to 2% and then has adopted the rate of commission earned by the appellant at 2%. Having held that the market rate is 1% to 2%, the Ld. AC has not given any basis as to why the facts of the present case warrants adoption of rate of commission earned at 2%. Since the Ld. AC has not given any reason for adoption of rate of commission earned at 2%, so I am of the considered opinion that in the facts and circumstances of the case it will be appropriate to adopt rate of commission earned at 1% on such cheque/bill discounting transactions. Hence, the commission at 1% of 28,47,56,812/- at Rs. 28,47,568/- is CONFIRMED and the balance of addition to the extent of Rs. 28,47,568/- is DELETED. Accordingly, the Ground No. 1 to 5 raised in appeal is PARTLY ALLOWED.”
The Ld. AR for the assessee submitted that the Ld. CIT(A) was erred in estimating 1% commission on total turnover of cheque discounting business without appreciating the fact that the assessee himself in his statement admitted that prevailing rate of commission in this kind of business is 0.02% to 0.1%. The AO has accepted the fact that the commission ranges from 0.02% to 0.10% but adopted commission at 2% without brought on record any comparable cases of similar nature or reasons for adopting such high rate of commission. The AR further referring a decision of ITAT, Mumbai Bench of the Tribunal in the case of Shri Ramesh Kumar Jain vs ACIT in & 3513/Mum/2013 submitted that under identical set of facts, the Tribunal and estimated commission income of 0.1%, therefore, facts being identical in the present appeal, a reasonable percentage of in the case of Mohanlal M. Patel vs DCIT (2004) 90 TTJ 57.
The Ld. DR, on the other hand, strongly supported order of the Ld. CIT(A).
The Ld. DR further submitted that the assessee failed to controvert facts brought out by the lower authorities while adopting 1% commission except stating that in this business commission ranges from 0.02% to 0.10% without bringing on record any evidence to prove his argument, therefore, there is no reason to deviate from the findings recorded by the Ld. CIT(A) while estimating 1% commission on total business.
We have heard both parties, perused the material available on record and gone through the orders of the authorities below. Admittedly, the assessee did not appear and filed details before the AO to contest his arguments that in this line of business commission ranges from 0.02% to 0.01%. It is also an admitted fact that although the assessee has cited two judgments of Tribunal to argue that the Tribunal has estimated commission income at 0.10% to 0.22%, but failed to make out a case of facts Pari Materia in its case to that of the facts considered by the Tribunal in other two cases. No doubt, the lower authorities have also failed to give cogent reasons for adopting commission rate of 1 to 2% in this line of business. Although, the external information gathered during the course of assessment proceedings is relevant to decide the case in hand, but what is more relevant is facts of the present case in hand to arrive a particular conclusion. In this case, although the assessee claims to have earned 0.02% to 0.10% commission on cheque discounting business, but when the Bench has asked specific question whether fairly accepted that he cannot prove exact rate of commission earned from the business.
At the same time, although the AO has estimated 2% commission, but such estimation was not based on any evidence or comparable cases of similar business. In this case, facts are unique because the assessee was involved in cheque discounting business as part of Hawala operations, therefore, facts of the case cannot be considered with facts of the case where cheque discounting business has been done under normal course of business, hence, it is difficult to accept the arguments of the assessee that the case laws considered by the ITAT is squarely applicable to the facts of the present case. Having said so, let us examine whether the rate of commission adopted by the Ld. CIT(A) in estimating income from cheque discounting business is reasonable having regard to the facts of the present case. In this case, it is an admitted fact that the assessee has failed to file any kind of evidences to justify its arguments of rate of commission of 0.02% to 0.10%.
Therefore, considering overall facts and circumstances of this case and also facts brought out by the AO that prevailing rate of commission in this kind of business is at 1 to 2%, we are of the considered view that there is no error in the findings recorded by the Ld. CIT(A) while estimating 1% commission on total cheque discounting business. Hence, we are inclined to upheld the order of the Ld. CIT(A) and dismissed the appeal filed by the assessee.
The facts and issues involved in are identical to the facts and issues which we have already considered in . The reasons Therefore, for the reasons given by us in preceding paragraph in , we dismissed the appeal filed by the assessee.
In the result, both appeals filed by the assessee are dismissed.
Order pronounced in the open Court on 10/04/2019.