MIHIR AGENCIES P. LTD,MUMBAI vs. ACIT (OSD-1) CEN RG 7, MUMBAI

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ITA 2692/MUM/2013Status: DisposedITAT Mumbai02 November 2017AY 2002-035 pages
AI SummaryPartly Allowed

What did the Tribunal hold?

The Tribunal, following its previous decisions in similar cases involving the assessee and its group concerns, upheld the net profit rate of commission at 0.15%. Additionally, the Tribunal allowed a further 25% of the expenses that were disallowed by the CIT(A).

What were the facts?

A search and seizure operation revealed that the assessee and its group companies were engaged in providing accommodation entries and laundering money, earning commission income. The Assessing Officer estimated this commission at 2%, rejecting the assessee's claim of 0.15%.

What were the issues?

The primary issue was the correct rate of net profit to be applied to commission income earned from accommodation entry and money laundering activities. Another issue concerned the disallowance of expenses.

Which sections of the Income-tax Act were involved?

Section 132(1),Section 143(3),Section 153C

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, MUMBAI BENCH “B”, MUMBAI

Before: SHRI D.T. GARASIA & SHRI MANOJ KUMAR AGGARWAL

For Appellant: Shri Mukesh Chokshi, A.R
For Respondent: Shri Narendra Kumar, D.R
Hearing: 01.11.2017Pronounced: 02.11.2017

Per D.T. GARASIA, Judicial Member:

1.

The present appeal has been preferred by the assessee against the order dated 30.01.2013 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2002-03.

2.

During the course of hearing, at the outset, the Ld. A.R. has submitted that similar issue had arisen in group concerns of the assessee before the Tribunal wherein the rate of commission has 2 M/s. Mihir Agencies P. Ltd. been accepted at 0.15%. The list of some of the ITAT decisions filed before us is as under: (i) M/s Goldstar Finvest P Ltd-ITAs 887 and 2699/M/2013, order dated 30.11.2015;

(ii) M/s Mihir Agencies Pvt. Ltd. in ITAs 6435 to 6441/M/2012 vide order dated 06.01.2016;

(iii) Alliance Intermediateries and Networks P Ltd., in ITAs 2700 to 2702/M/2013 order dated 20.02.2016.

(iv) for A.Y.2004-05 and ITA No.834/M/2013 for A.Y. 2005-06 vide order dated 04.05.2016

3.

Ld. D.R. also admitted that, the issue of rate of commission has been decided by the Tribunal in various cases.

4.

Brief facts qua the issue involved is that, a search and seizure action under section 132(1) was conducted in the Group companies owned and floated by assessee, M/s. Mihir Agencies Pvt. Ltd. on 25.11.2009. The assessee was also covered under the same search and consequently assessments under section 143(3) r.w.s. 153C of the Act were completed. The Assessing Officer (hereinafter referred to as the AO) in the assessment order has noted that, during the course of the search and seizure action, it was found that the assessee and the Group companies of the assessee were engaged in the business of accommodation entries and laundering of black money. The managing director Mr. Mukesh Choksi himself was the mastermind behind formation of all these companies. Various other details and modus operandi have been noted by him along with the 3 M/s. Mihir Agencies P. Ltd. statement on oath of the assessee and the seized documents. Thus, on the basis of his detail discussions and material on record, the AO held that, the assessee and the Group companies run by him were receiving commission income from for all these activities. Such a commission income was ranging between 1.5% to 3.5%. The AO accordingly rejected the books of account of the assessee and estimated the net profit rate of the commission @ 2%, which according to the assessee was 0.15%.

5.

Before the CIT(A), the assessee filed various decisions passed by the CIT(A) in Group companies, wherein, 0.15% of the commission rate has been accepted. However, the Ld. CIT(A) did not accept the assessee’s contention and confirmed the estimate made by the AO.

6.

On the perusal of the impugned orders and the finding of the Tribunal in the case of M/s Mihir Agencies Pvt Ltd (supra) and on similar other decisions as relied before us, we find that the Tribunal has upheld the net profit rate of 0.15%. The relevant observation of the Tribunal in the case of M/s Mihir Agencies Pvt. Ltd is reproduced hereunder:- “7. We find that in the case of Gold Star Finvest Ltd, which is a sister concern of the assessee, on similar facts for the assessment year 2003-04 and 2004-05, the Tribunal after referring to various decisions have upheld the percentage of commission on net profit @ 0.15% which was quite consistent with the statement recorded at the time of search. Accordingly, following the judicial precedence in the case of the assessee’s sister concern (supra), we uphold the rate of commission / rate of net profit from such activities at 0.15%. Accordingly, ground no. 4, 5 as raised by the assessee are allowed”.

4 M/s. Mihir Agencies P. Ltd. Thus, consistent with the view taken in various similar matters, we also uphold the rate of commission / net profit rate from such activity at 0.15%. Accordingly, this issue is decided in favour of the assessee.

7.

During the course of hearing, the Ld. A.R. submitted that regarding expenses to the tune of Rs.10,550/- claimed by the assessee was adjudicated by the Ld. CIT(A) and the Ld. CIT(A) has allowed Rs.2,110/- out of Rs.10,550/- of total expenses. Hence, the appeal was partly allowed.

8.

We have heard the rival contentions of both the parties. The assessee has stated before us that 50% of the expenses should be allowed. We find that the Ld. CIT(A) has allowed 20% of the expenses on estimated basis and the addition remains of Rs.8,440/-. Hence, we further allow 25% of expenses which comes to Rs.2,637/-.

9.

In the result, appeal of the assessee is partly allowed.

Order pronounced in the open court on 02.11.2017.

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