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Income Tax Appellate Tribunal, DELHI BENCH ‘G’, NEW DELHI
ORDER Per N. K. Saini, AM:
The appeal by the department and the Cross Objection by the assessee are directed against the order dated 30.08.2013 of ld. CIT(A)-XXXI, New Delhi.
In the departmental appeal the only effective ground raised
reads as under: 2 CO No. 295/Del/2015 Shyam Shanker Gupta “On the facts and in the circumstances of the case, the Commissioner of Income Tax(A) has erred in law and on facts in deleting the protective addition of Rs.46,28,725/- made by AO on account of commission earned on providing bogus entries by Sh. Rajvir Singh.”
3. During the course of assessment proceedings the ld. Counsel for the assessee at the very outset stated that the substantive addition of the same amount has been confirmed by the ld. CIT(A) vide order dated 30.08.2013 in the case of Sh. Rajvir Singh who has accepted and not challenged the same before the ITAT. It was further stated that in the said case of Sh. Rajvir Singh, before the ld. CIT(A), only the rate of commission was challenged and not the earning of commission. It was stated that when the substantive addition has been made already in the hands of Sh. Rajvir Singh, the protective addition in the hands of the assessee was not justified. The reliance was placed on the following decision of the ITAT:
� Baby Sarojini Vs DCIT in IT(SS)A No. 117/Hyd/2004 order dated 15.05.2008 � Parasmal Dangi Alias Parasmall Jain Vs ACIT 100 TTJ 508 3 CO No. 295/Del/2015 Shyam Shanker Gupta 4. In his rival submissions the ld. DR although supported the order of the AO but could not controvert the aforesaid contention of the ld. Counsel for the assessee.
We have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is an admitted fact that the substantive addition was made by the AO in the hands of Sh. Rajvir Singh who challenged the rate of commission before the ld. CIT(A) and the action of the AO was upheld by the ld. CIT(A). In the present case, the ld. Counsel for the assessee stated at bar that no further appeal was preferred by Sh. Rajvir Singh. We, therefore, considering the totality of the facts are of the confirmed view that the ld. CIT(A) rightly deleted the protective addition when for the same issue the substantive addition was confirmed in hands of the another person i.e. Sh. Rajvir Singh. We, therefore, do not see merit in this appeal of the department.
As regards to the Cross Objection filed by the assessee, the ld. Counsel for the assessee submitted that he has instruction not to press the Cross Objection and gave in writing as under: “Cross Objection withdrawn”. 4 CO No. 295/Del/2015 Shyam Shanker Gupta 7. In view of the above, the Cross Objection filed by the assessee is dismissed as withdrawn.
In the result, the appeal of the department and Cross Objection of the assessee are dismissed. (Order Pronounced in the Court on 08/02/2017)