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Facts
A search and seizure action on 06.11.2019 led to notices under Section 153A against the assessee for assessment years 2014-15 to 2019-2020. The Assessing Officer found the assessee engaged in providing accommodation entries through controlled concerns, computing and adding commission income at 0.15% under Section 69A. The Ld. CIT(A) upheld these additions, considering information from survey proceedings as incriminating material.
Held
The Tribunal upheld the CIT(A)'s finding that incriminating material was observed during survey proceedings along with the search, justifying the invocation of Section 153A. It also confirmed the CIT(A)'s decision to sustain the addition of commission income from accommodation entries, thereby rejecting both grounds of appeal filed by the assessee.
Key Issues
Legality of invoking Section 153A in the absence of incriminating evidence and the correctness of commission income addition under Section 69A.
Sections Cited
153A, 69A
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Income Tax Appellate Tribunal, MUMBAI BENCH “D” MUMBAI
Before: SHRI OM PRAKASH KANT & MS. KAVITHA RAJAGOPAL
These appeals have been preferred by the assessee against a common order dated 12.09.2023 passed by the Ld. Commissioner of Income-tax (Appeals) – 53, Mumbai [in short ‘the Ld. CIT(A)’] for assessment years 2014-15 to 2019-2020 respectively. As common grounds have been raised in all these appeal and therefore, same
Deepak Bhanwarlal Jain 2 4027, 4026, 4030, 4029 & 4027, 4026, 4030, 4029 & 4024/MUM/2023 were heard together and disposed off by way of this consolidated were heard together and disposed off by way of this consolidated were heard together and disposed off by way of this consolidated order for convenience. order for convenience.
Since identical grounds have been raised in all the years and Since identical grounds have been raised in all the years and Since identical grounds have been raised in all the years and therefore, for brevity, we reproduce efore, for brevity, we reproduce the grounds raised by the grounds raised by the assessee for assessment year 2014 assessee for assessment year 2014-15 only as under: as under:
On the facts and circumstances of the Appellant's case and in On the facts and circumstances of the Appellant's case and in On the facts and circumstances of the Appellant's case and in law the Ld. Commissioner of Income Tax (Appeals) has erred in law the Ld. Commissioner of Income Tax (Appeals) has erred in law the Ld. Commissioner of Income Tax (Appeals) has erred in confirming the action of the Ld. AO in invoking the confirming the action of the Ld. AO in invoking the provision of provision of section 153A without any incriminating evidence found during section 153A without any incriminating evidence found during section 153A without any incriminating evidence found during the course of search action. the course of search action.
2. On the facts and circumstances of the Appellant's case and in On the facts and circumstances of the Appellant's case and in On the facts and circumstances of the Appellant's case and in law the Ld. Commissioner of Income Tax (Appeals) erred in law the Ld. Commissioner of Income Tax (Appeals) erred in law the Ld. Commissioner of Income Tax (Appeals) erred in confirming the addition of Rs.4,0 confirming the addition of Rs.4,03,048/- being alleged being alleged Commission Income by invoking the provisions of Section 69A Commission Income by invoking the provisions of Section 69A Commission Income by invoking the provisions of Section 69A of the Income Tax Act, 1961. of the Income Tax Act, 1961.
Briefly stated, facts of the case are that a search and seizure Briefly stated, facts of the case are that a search and seizure Briefly stated, facts of the case are that a search and seizure action was carried out on 06.11.2019 at the premises of the action was carried out on 06.11.2019 at the premises of the action was carried out on 06.11.2019 at the premises of the assessee and consequently notice u/s 153A of the Income quently notice u/s 153A of the Income quently notice u/s 153A of the Income-tax Act, 1961 (in short ‘the Act’) were issued for the captioned assessment 1961 (in short ‘the Act’) were issued for the captioned assessment 1961 (in short ‘the Act’) were issued for the captioned assessment years. The Assessing Officer noted that during the course of the years. The Assessing Officer noted that during the course of the years. The Assessing Officer noted that during the course of the search proceedings, the assessee search proceedings, the assessee acknowledged the fact of being the fact of being engaged in providing oviding of accommodation entries through various accommodation entries through various concerns controlled by controlled by him and therefore, the Assessing Officer him and therefore, the Assessing Officer computed the commission @ 015% computed the commission @ 015% on the transactions through on the transactions through those concerns and added to the income of the assessee as under: those concerns and added to the income of the assessee those concerns and added to the income of the assessee
Asst. Year Asst. Year Commission @ 0.15% 2014-15 15 4,03,048 2015-16 16 5,17,955 2016-17 17 5,28,430 2017-18 18 3,43 ,866
Deepak Bhanwarlal Jain 3 4027, 4026, 4030, 4029 & 4027, 4026, 4030, 4029 & 4024/MUM/2023
2018-19 19 54,004 2019-20 20 1,26,667 2020-21 21 4,626 4. On further appeal, the assessee challenged the legality of the On further appeal, the assessee challenged the legality of the On further appeal, the assessee challenged the legality of the addition on the ground that no incriminating material was found addition on the ground that no incriminating material addition on the ground that no incriminating material qua the additions and therefore, following the decision of the qua the additions and therefore, following the decision of the qua the additions and therefore, following the decision of the Hon’ble Bombay High Court in the case of Warehousing Hon’ble Bombay High Court in the case of Warehousing Hon’ble Bombay High Court in the case of Warehousing Corporation 374 ITR 645 Corporation 374 ITR 645, no addition could have been made. But no addition could have been made. But ordinate Bench of the Ld. CIT(A) referred to the decision of the Co the Ld. CIT(A) referred to the decision of the Co-ordinate Bench of the Tribunal in the case of the Tribunal in the case of Skyway Infra Projects Pvt. Skyway Infra Projects Pvt. Ltd. in and held that in the course of survey proceedings 2665/Mum/2022 and held that in the course of survey proceedings 2665/Mum/2022 and held that in the course of survey proceedings on the premises by the companies controlled by the assessee, no on the premises by the companies controlled by the assessee on the premises by the companies controlled by the assessee evidences of business activity was found and inquiries c business activity was found and inquiries carried out business activity was found and inquiries c in the vicinity of those companies also could not establish the fact in the vicinity of those companies also could not establish the fact in the vicinity of those companies also could not establish the fact of the business activity by those companies. The Ld. CIT(A) treated the business activity by those companies. The Ld. CIT(A) treated the business activity by those companies. The Ld. CIT(A) treated those information as constituting as constituting incriminating material. The Ld. incriminating material. The Ld. CIT(A) also upheld addition on the merit. CIT(A) also upheld addition on the merit.
Aggrieved the assessee is in appeal raising the grounds as Aggrieved the assessee is in appeal raising the grounds as Aggrieved the assessee is in appeal raising the grounds as reproduced above.
Despite notifying none attended on behalf of the assessee nor Despite notifying none attended on behalf of the assessee nor Despite notifying none attended on behalf of the assessee nor was any request for adjournment was any request for adjournment filed. On perusal of the record filed. On perusal of the record, we find that on 17.04.2024 a written applica find that on 17.04.2024 a written application was filed on behalf of tion was filed on behalf of the assessee seeking adjournment which was duly granted but the assessee seeking adjournment which was duly granted but the assessee seeking adjournment which was duly granted but thereafter none attended on behalf of the assessee on 20.06.2024, thereafter none attended on behalf of the assessee on 20.06.2024, thereafter none attended on behalf of the assessee on 20.06.2024,
Deepak Bhanwarlal Jain 4 4027, 4026, 4030, 4029 & 4027, 4026, 4030, 4029 & 4024/MUM/2023 26.08.2024 and 15.10.2024. In view of the facts and circumstances 26.08.2024 and 15.10.2024. In view of the facts and circumstances 26.08.2024 and 15.10.2024. In view of the facts and circumstances of the case, we were of the opinion assessee that assessee was that assessee was not interested in prosecuting the appeal and therefore, same were heard interested in prosecuting the appeal and therefore, same interested in prosecuting the appeal and therefore, same ex-parte qua the assessee after hearing arguments of the Ld. parte qua the assessee after hearing arguments of the Ld. parte qua the assessee after hearing arguments of the Ld. Departmental Representative (DR). Departmental Representative (DR).
We find that in the case assessee has challenged the legality of We find that in the case assessee has challenged the legality of We find that in the case assessee has challenged the legality of the addition on the ground that no incriminating material was the addition on the ground that no incriminating material was the addition on the ground that no incriminating material was found qua the addition of commission income made by the found qua the addition of commission income made by the found qua the addition of commission income made by the Assessing Officer. We find that the Ld. CIT(A) has referred to the Assessing Officer. We find that the Ld. CIT(A) has referred to the Assessing Officer. We find that the Ld. CIT(A) has referred to the decision of the Co-ordinate Bench of the Tribunal in the case of M/s ordinate Bench of the Tribunal in the case of M/s ordinate Bench of the Tribunal in the case of M/s Skyway Infra Projects P. Ltd. (supra) and held that it was not a case Skyway Infra Projects P. Ltd. (supra) and held that it was not a case Skyway Infra Projects P. Ltd. (supra) and held that it was not a case of merely statement by the assessee but in the survey proceedings of merely statement by the assessee but in the survey proceedings of merely statement by the assessee but in the survey proceedings carried out along with search certain incriminating facts were carried out along with search certain incriminating facts carried out along with search certain incriminating facts observed in respect of companies controlled by the assessee observed in respect of companies controlled by the assessee observed in respect of companies controlled by the assessee through whom accommodation entries were provided. In our accommodation entries were provided. In our accommodation entries were provided. In our opinion, the finding of the Ld. CIT(A) on the issue in dispute is opinion, the finding of the Ld. CIT(A) on the issue in dispute is opinion, the finding of the Ld. CIT(A) on the issue in dispute is reasoned and no interference is called for in the same. The ground reasoned and no interference is called for in the same. The ground reasoned and no interference is called for in the same. The ground No. 1 raised in the appeals challenging invoking of section 153A in No. 1 raised in the appeals challenging invoking of section 153A in No. 1 raised in the appeals challenging invoking of section 153A in absence of any incriminating evidence is accordingly dismissed. absence of any incriminating evidence is accordingly dismissed. absence of any incriminating evidence is accordingly dismissed.
As far as ground No. 2 raised in the appeals on the merit is As far as ground No. 2 raised in the appeals on the merit is As far as ground No. 2 raised in the appeals on the merit is concerned in our opinion, the Ld. CIT(A) has correctly upheld the concerned in our opinion, the Ld. CIT(A) has correctly uphe concerned in our opinion, the Ld. CIT(A) has correctly uphe commission income on the accommodation entries carried out by commission income on the accommodation entries carried out by commission income on the accommodation entries carried out by Deepak Bhanwarlal Jain 5 4027, 4026, 4030, 4029 & 4027, 4026, 4030, 4029 & 4024/MUM/2023 the assessee through companies controlled by him. Accordingly, the the assessee through companies controlled by him. Accordingly, the the assessee through companies controlled by him. Accordingly, the ground No. 2 of the appeal of the assessee is also rejected. ground No. 2 of the appeal of the assessee is also rejected. ground No. 2 of the appeal of the assessee is also rejected.
In the result, all the appeals of the assessee are dism In the result, all the appeals of the assessee are dism In the result, all the appeals of the assessee are dismissed.
Order pronounced in the open Court on nounced in the open Court on 22/10/2024. /10/2024.