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Facts
A search and seizure action was conducted on the Adam Smith Group of companies, including M/s. SNW Smith Consultants Pvt. Ltd. The group was found to be maintaining parallel accounting systems and allegedly under-reporting commission income from LC discounting. The Assessing Officer (AO) made an addition based on an average gross commission rate of 1.28%.
Held
The Tribunal, in this case, is largely following the order of the CIT(A). The CIT(A) partly allowed the appeal, directing the adoption of commission at a uniform rate of 0.25% and net profit at 30% (0.075%). The Tribunal finds the CIT(A)'s order detailed and, respectfully following it, dismisses the Revenue's appeals.
Key Issues
Whether the addition made by the AO based on seized material from a group entity is valid when no specific incriminating material related to the assessee was unearthed during the search, especially for completed assessments. Whether the CIT(A)'s reduction in the commission rate from 1.28% to 0.25% is justified.
Sections Cited
132, 153A, 143(3), 143(1), 142(1), 139, 147, 148, 245D(4)
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Income Tax Appellate Tribunal, DELHI BENCH ‘A’: NEW DELHI
Before: SHRIS.RIFAUR RAHMAN & SHRI ANUBHAV SHARMA
(Assessment Year: 2016-17) DCIT, vs. M/s. Adam Smith Consultancy Pvt. Ltd., 8th Floor, Commercial Tower, Delhi. Hotel LE Meridian, Janpath, New Delhi – 110 001. (PAN : AAKCS4626B) (APPELLANT) (RESPONDENT) ASSESSEE BY : None REVENUE BY : Shri Jitender Singh, CIT DR Date of Hearing : 02.09.2025 Date of Order : 10.09.2025 O R D E R 2244, 2245 & 2248/DEL/2025 PER S.RIFAUR RAHMAN,ACCOUNTANT MEMBER :
1. 1. These appeals are filed by the Revenue against the order of ld. Commissioner of Income Tax (Appeals)/National Faceless Appeal Centre (NFAC), Delhi [“ld. CIT(A)”, for short] dated 14.01.2025 for Assessment Years 2012-13, 2015-16, 2016-17 & 2016-17.
2. Since the issues are common and the appeals are connected, hence the same are heard together and being disposed off by this common order. We take up the Revenue’s appeal being for AY 2012-13 as lead case to adjudicate the issues under consideration wherein the assessee has raised the following grounds of appeal :-
1. Whether the Ld. CIT (A) erred in allowing substantial relief without considering that the assessee failed to disclose its actual commission income, leading to an under reporting of taxable income.”
2. The appellant craves leave to add, alter, amend and or vary the grounds of appeal at or before the time of hearing.
3. Whether on the facts and in circumstances of the facts and in law, the Ld. CIT (A) erred in reducing the rate of commission earned on Letter of Credit (Learned CIT(Appeals)) from 1.28% as held and established in assessment order.
4. Whether the Ld. CIT (A) in its order has erred on relying and linking to the order u/s 245(D) of the ITSC in the case of M/s. Adam Smith Associates Pvt. Ltd. (ASAPL) whereas there is no order of ITSC in the case of assessee.
5. Whether the Ld. CIT (A) erred in arbitrarily reducing the rate to half of what was considered by ITSC in the case of M/s. Adam Smith Associates Pvt. Ltd. (ASAPL) reducing the rate of commission.”
None appeared on behalf of the assessee at the time of hearing. Since the issue involved is simple, we proceed to decide the appeals after hearing the ld. DR of the Revenue and the material placed on record.
Brief facts of the case are, a search and seizure action u/s 132 of the Income-tax Act, 1961 (for short ‘the Act’) was carried out in the Adam Smith Group of cases on 28.11.2017. A search warrant of authorization u/s 132 of the Act was issued in the name of the assessee, M/s. SNW Smith Consultants Pvt. Ltd., Basement, Eastern Wing, Gate No.1, Thapar House, 124, Janpath, New Delhi-110 001 and other entities, namely, M/s. Studio Anoushka Impex Private Limited, M/s. Tiger Professional Services Private Limited on 27.11.2017. Search in the case of the assessee was initiated on 28.11.2017.
Assessee furnished its original return of income u/s 139 of the Act on 29.09.2012 declaring total income of Rs.8,81,600/- which was processed u/s 143(1) of the Act on 18.05.2013 and no scrutiny assessment was made. A notice u/s 153A of the Act was issued and duly served on the assessee. In response to the notice u/s 153A, return of income was filed on 05.09.2019 declaring total income of Rs.8,81,660/- under the head profits and gains from business or profession. Further notices u/s 143(2) and 142(1) alongwith detailed questionnaire were issued and duly served 2244, 2245 & 2248/DEL/2025 upon the assessee. In response, ld. AR of the assessee, attended and filed details and documents as per records.
The assessee company is a group concern of M/s Adam Smith Associates Pvt Ltd, promoted by Sh. Ashish Madan. The Adam Smith Group (in short ‘ASG’) is involved in discounting of bills and letters of credit. The group also provides consultancy in trade financing. The group also provides other services appurtenant to discounting of LCs. Both local and international LCs are discounted by the group. Main concern of the group is M/s Adam Smith Associates Pvt. Ltd. (ASAPL), M/s. SNW Smith Consultants Pvt Ltd (SSCPL) and M/s Adam Smith Consultancy Pvt Ltd (ASCPL). Assessing Officer observed that all of the above concerns are engaged in similar business and also operate from the same premises and all of the above concerns are under command and control of Shri Ashish Madan. During the search, it was found that the group under-reports its consultancy and LC discounting receipts and reported commission income was found to be much lower as compared to the actual receipts. During the search, many Account Settlement Sheets (ASS) were found and seized from the premises of the assessee and ASSs seized contained details of parties to transaction, LC amount, Hundi Amount, cash collected and distribution of cash to various parties. During the course of search and seizure, digital data and documents were found and seized. It 2244, 2245 & 2248/DEL/2025 was found that ASG is maintaining two parallel sets of accounting servers in its office premises i.e. one is the Tally Server that is used by ASG to show all the accounted income as per the books of accounts and other was the parallel set of books in software called LC Billing & Discounting (LCBD) System which is maintained in SQL. LCBD system had backend database in SQL format. The SQL system comprised of all the data (Booked/accounted and unbooked/unaccounted for domestic LCs facilitated by ASG from May, 2008 till September, 2016. From September, 2016 to till date, all the booked entries are maintained in tally server and the unbooked LCs are maintained in excel sheets by employees. Assessing Officer observed that analysis of data collected during the course of search and analysis of the seized material revealed that ASG is not booking part of income earned from facilitation of LC discounting in its books of account. It was found that commission on transaction of domestic LC discounting amounting to Rs.4800 crores remained completely unbooked. He further observed that a perusal of data extracted from LCBD software and tally data revealed that average commission rate taken is 0.18% of hundi amount whereas a perusal of ASSs revealed that the rate of commission taken in the books is not correct. A detailed analysis of ASSs seized from the premises of the assessee revealed that average gross commission rate is 1.28% approx.
2244, 2245 & 2248/DEL/2025 After applying the above rate of average gross commission, it was found that the assessee had under reported the income and some of the transactions were completely out of books. The assessee was asked vide notice u/s 142(1) dated 16.11.2019 to explain as to why unbooked amount of commission on LC discounting should be brought to tax and assessed in your total income. The assessee submitted its reply dated 25.11.2019 as under :- “The seized material as mentioned in the questionnaire in respect of LC discounting and hundi discount may kindly be taken and treated in the head company Adam Smith Associates Pvt. Ltd where more than 95% of the total company has been done on an average a sum of amount 0.11 to 0.13% of the gross amount discounted is the income of the assessee company. The commission is on the discounting charges charged by the discounting entity. Applying the average1.28% is totally uncalled for. This figure is derived merely on the basis of very few sheets as against thousands of transactions.”
Further the Assessing Officer vide note sheet entry dated 20.12.2019 show-caused the assessee as to why commission income should not be assessed @ 1.28% of LC amount. In response, the assessee filed response through e-mails dated 23.12.2019 & 25.12.2019 and the same is placed at pages 4 to 7 of the assessment order. After observing the response of the assessee, Assessing Officer observed that following issues were arisen for adjudication :- (a) Whether the case is covered by decision of Hon'ble Delhi High Court in the case of Kabul Chawla 2244, 2245 & 2248/DEL/2025 (b) Whether principles of natural justice were followed and the assessee was confronted with the relied upon documents (c) Whether audited books of the assessee are reliable and the same needs to be accepted as such. (d) Whether gross commission should be recognized as income or benefit of expenses be allowed without any documentary evidences from the assessee to substantiate the same. (e) Whether sample size considered for determination is valid/reliable.
Assessing Officer discussed these issues and the submissions of the assessee on this issue at pages 7 to 16 of the assessment order. Assessing Officer, after taking into account documents on record and submissions of the assessee held that average commission percentage of 1.28% is applicable to the LC discounting transactions carried out by the assessee during the year. Accordingly, Assessing Officer assessed the income of the assessee at Rs.2,56,95,790/-.
Aggrieved, assessee preferred appeal before the ld. CIT (A) and filed detailed submissions placed at pages 3 to 16 of the impugned order. The assessee also filed additional evidences before the ld. CIT (A) and the ld. CIT (A) asked for the remand report from the Assessing Officer which are placed at pages 16 to 19 of the impugned order. Ld. CIT (A) further forwarded the remand report to the assessee for submitting the rejoinder and the same was filed by the assessee which is placed at pages 19 to 26 of the order. After considering the detailed submissions of the assessee, 2244, 2245 & 2248/DEL/2025 remand report and the rejoinder of the assessee, ld. CIT (A) gave his findings in paras 4.1.1 to 4.4.7 in detail and partly allowed the appeal holding the commission at the uniform rate of 0.25% while the net profit should be adopted at the uniform rate of @ 30% on all assessment years covered in the settlement commission determining the net profit of 0.075% (0.25% x 30%).
Aggrieved, the Revenue is in appeal before us.
Ld. DR of the Revenue vehemently relied on the findings of the Assessing Officer and objected to the findings of ld. CIT (A) reducing the average commission percentage from 1.28%.
Considered the submissions of the ld. DR of the Revenue and the material placed on record. We find that the ld. CIT (A) in the impugned order made the detailed findings at pages 28 to 34 of his order. For the sake of brevity, the same is reproduced as under :- “4.11 The appellant has submitted the copy of ITSC order as an additional evidence. It is pertinent to mention here that this order of ITSC/IBS is very important while deciding this issue. In my opinion a liberal approach should be adopted as ordinarily a litigant does not stand to benefit by not submitting the evidence at the time of assessment. If substantial justice and technical considerations are pitted against each other; cause of substantial justice deserves to be preferred as injustice should not be done because a piece of evidence was not submitted in time. If the appellant was prevented by a sufficient cause from producing before the Assessing Officer any evidence which was relevant to any ground of appeal, the same should be admitted during the course of appellate proceedings. Thus in my considered opinion, in this case the additional evidence is allowed to be admitted for further consideration while deciding the appeal. 4.1.2 I have considered the material on record including written submission of the appellant filed in course of appellate proceedings. I have also perused assessment order u/s 153A/143(3) of the Act, remand report of the Assessing 2244, 2245 & 2248/DEL/2025 Officer and rejoinder of the appellant thereon. In the present appeal the appellant has raised four grounds of appeal. 4.2.1 In Ground No.1, the appellant has contended that the order passed by the Assessing Officer is bad in law and is a perverse order 4.2.2 Ground No.1 is general in nature and no specific arguments have been advanced by the appellant. Hence, Ground No.l is dismissed. 4.3.1 In Additional Ground No.1A of appeal, the appellant has contended that the Assessing Officer has erred in facts and in law in enhancing the booked commission by relying upon seized materials pertaining to another entity, such enhancement thus not having arisen from any incriminating material found from and/or relating to the appellant during Search, the assessment for such year stands completed/unabated, rendering the impugned assessment u/s.153A of the Act void in view of settled law in [2023] 149 taxmann.com 399 (SC) 4.3.2 Appellant furnished his original return of income u/s 139 of the Act on 29.09.2012 declaring total income of Rs.8,81,660/- which was processed u/s. 143(1). Search and seizure action u/s 132 of the Act was carried out in the Adam Smith Group of cases on 28.11.2017. Notice u/s l53A was issued on 26.04.2019. Consequent to notice u/s 153A appellant filed its return of income declaring total income of Rs.8,81,660/-. The following additions have been made by the AO while passing the order u/s 153A r.w.s 143(3) of the Act:
S.No. Additional disallowance Amount (in Rs.) 1. Addition on account of additional rate on 2,48,14,134/- booked LC commission income 4.3.3 The appellant argued that the addition is not valid in view of (2023) 149 taxmann.com 399 (SC) since the seized materials were not entity specific, as stated by the AO in the order and have submitted by it's flagship company ASAPL to the Investigation Wing and ITSC. 4.3.4 Various courts have held that no addition could be made in the hands of the appellant where no incriminating material was unearthed during course of search and the assessment of the appellant stood completed on the date of search. 4.3.5 Appellant has relied on the decision of Hon'ble Delhi Court in the case of CIT vs Kabul Chawla [2016] 380 ITR 573 (Delhi) and stated that no regular addition can be made during the assessment proceedings u/s 153A of Income Tax Act. Hon'ble Delhi High Court in that case held that completed assessments can be interfered with by Assessing Officer while making assessment under section 153A only on basis of some incriminating material unearthed during course of search which was not produced or not already 2244, 2245 & 2248/DEL/2025 disclosed or made known in course of original assessment. Operative part of the judgment is reproduced below: “37 On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under : i. Once a search takes place under Section 132 of the Act, notice under Section 153 A(l) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the total income of the aforementioned six years in separate assessment orders for each of the six years In other words there will be only one assessment order in respect of each of the six AYs in which both the disclosed and the undisclosed income would be brought to tax. iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment "can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material." v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess’ in Section l53 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word reassess to completed assessment proceedings. vi. Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A emerges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and another material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered 2244, 2245 & 2248/DEL/2025 in the course of search which were not produced or not already disclosed or made known in the course of original assessment. 4.3.6 Hon'ble Delhi High Court in the case of PCIT vs. Meeta Gutgutia (2017) 395 ITR 526(Delhi) held that invocation of section 153A by revenue for assessment years 2000-01 to 2003-04 was without any legal basis where there was no incriminating material qua each of those assessment years. The operative part of judgment is reproduced below: "69. What weighed with the Court in the above decision was the "habitual concealing of income and indulging in clandestine operations" and that a person indulging in such activities "can hardly be accepted to maintain meticulous books or records for long." These factors are absent in the present case. There was no justification at all for the AO to proceed on surmises and estimates without there being any incriminating material qua the AY for which he sought to make additions of franchisee commission 70. The above distinguishing factors in Dayawani Gupta (supra), therefore, do not detract from the settled legal position in Kabul Chawla (supra) which has been followed not only by this Court in its subsequent decisions but also by several other High Courts.
For all of the aforementioned reasons, the Court is of the view that the ITAT was justified in holding that the invocation of Section 153A by the Revenue for the AYs 2000-01 to 2003-04 was without any legal basis as there was no incriminating material qua each of those AYs. Conclusion “72 To conclude (i) Question (i) is answered in the negative i.e., in favour of the Assessee and against the Revenue. It is held that in the facts and circumstances, the Revenue was not justified in invoking Section 153 A of the Act against the Assessee in relation to AYs 2000-01 to AYs 2003-04. SLP was dismissed by Hon’ble Supreme Court in above case of Pr CIT vs Meeta Gutgutia (2018)96 taxmann.com 468 (SC) vide order dated 02.07.2018. 4.3.7 This issue has attained finality by the judgment of Hon'ble Supreme Court of India in the case of Principal Commissioner of Income-tax, Central-3 v. Abhisar Buildwell (P.) Ltd. [20231 149 taxmann.com 399(SC). The Hon'ble Supreme Court held that in respect of completed assessments unabated assessments, no addition can be made by the Assessing Officer in the absence 2244, 2245 & 2248/DEL/2025 of any incriminating material found during course of search under section 132 or requisition under section 132A of Income Tax Act. 4.3.8 The relevant extracts of the judgment of the case of Principal Commissioner of Income- tax, Central-3 v. Abhisar Buildwell (P.)Ltd., (2023| 149taxmann.com 399 (SC) are as under: “13. For the reasons stated hereinabove, we are in complete agreement with the view taken by the Delhi High Court in the case of Kabul Chawla (supra) and the Gujarat High Court in the case of Saumya Construction (supra) and the decisions of the other High Courts taking the view that no addition can be made in respect of the completed assessments in absence of any incriminating material 14. In view of the above and for the reasons stated above, it is concluded as under: (i) that in case of search under section 132 or requisition under section 132, the AO assumes the jurisdiction for block assessment under section l53A; (ii) all pending assessments/reassessments shall stand abated, (iii) In case any incriminating material is found/unearthed even in case of unabated/completed assessment, the AO would assume the jurisdiction to assess or reassess the ‘total income taking into consideration the incriminating material unearthed during the search and the other material available with the AO including the income declared in the return, and (iv) In case no incriminating material is unearthed during the search, the AO cannot assess or reassess taking into consideration the other material in respect of completed assessments/unabated assessments. Meaning thereby, in respect of completed/unabated assessment, no addition can be made by the AO in absence of any incriminating material found during the course of search under section 132 or requisition under section 132or requisition under section 132A of the Act, 1961. However, the completed/unabated assessment can be reopened by the AO in exercise of powers under section 147/148 of the Act, subject to fulfillment of the conditions as envisaged/mentioned under section 147/148 of the Act and those powers are saved. The question involved in the present set of appeals and review petition is answered accordingly in terms of the above and the appeals and review petition preferred by the Revenue are hereby dismissed. No costs. 4.3.9 In view of the above, the Hon'ble Supreme Court held that in case no incriminating material is unearthed during the search, the AO cannot assess or 2244, 2245 & 2248/DEL/2025 reassess taking into consideration the other material in respect of completed assessments/unabated assessments. Meaning thereby in respect of completed/ unabated assessments, no addition can be made by the AO in absence of any incriminating material found during the course of search under section 132 or requisition under section 132A of the Act. 1961. 4.3.10 Therefore, it is required to be seen whether any incriminating material was found from the appellant during the course of search proceedings or not. As per the assessment order and records, it is seen that the Assessing Officer relied upon incriminating materials seized from Le Meridien and Thapar House. Thapar House is a common premises of all Adam Smith Group of companies. I am of the view that as the seized materials are from common premises and is in incriminating in nature, the above judicial decision are not applicable in this case. Accordingly, Additional Ground No. 1A is dismissed. 4.4.1 In Ground No. 2 the appellant has contended that the Assessing Officer has erred in making an addition of Rs.2,48,14,134/- in the hands of the Appellant, without considering the submission filed by the appellant during the assessment proceeding. 4.4.2 In Additional Ground No, 2A, the appellant contends that the AO has erred in enhancing the Booked Commission of the appellant by applying an ad-hoc gross rate of1.28% of Unbooked Commission determined by the Department in the case of the appellant's Group Company ASAPL, contrary to the findings of the Hon'ble Income Tax Settlement Commission Interim Board for Settlement vide its order dated 28,02.2023 u/s 245D(4) of the Act relating to Unbooked Commission in the case of Adam Smith Associates Pvt. Ltd. (ASAPL). 4.4.3 In Ground No. 3 the appellant has contended that the AO has erred in law by not considering the net commission of the appellant by merely making the additions on the basis of gross rate of commission. 4.4.4 Since Ground Nos.2, 2A and 3 of appeal are interlinked hence all the grounds are adjudicated together. 4.4.5 The appellant is engaged in the business of LC Discounting and financial Consultancy Services. It has similar model as it's flagship company. ASAPL. As mentioned in the assessment order, based on materials seized from Le Meridien and Basement Thapar House offices of ASAPL and all Adam Smith Group of companies, the Investigation Wing determined unbooked commission at an average rate of 1.28% over six assessment years, i.e. in AY 2012-13 to AY 2018-19. The order also mentions that these materials have been submitted by ASAPL before I1SC. There is no independent or specific material in the name of the appellant company which has been relied upon by the AO nor placed on record. 4.4.6 I have perused the records, the assessment order and the ITSC/IBS Orders. The only issue is regarding unbooked commission determined by the 2244, 2245 & 2248/DEL/2025 AO in the hands of the appellant. It is noted from ITRs that the revenues of the appellant were about 15-20% of ASAPL. The appellant has submitted that appellant was an intermediary with referral business from ASAPL. The appellant has further submitted that all the unbooked commission has already been accounted for by the ASAPL, the flagship company, while submitting its application before Hon'ble ITSC. Hon’ble ITSC in the case of ASAPL has adjudicated vide it's order dated 28.02.2023 on all unbooked LC's as per LCBD software surrendered by ASAPL before the Investigation Wing. Hon'ble ITSC has rejected the gross commission rate of l.28% determined by the Department from such seized materials and has directed to adopt the commission at the uniform rate of 0.259% while the net profit should be adopted at the uniform rate of @30% on all assessment years covered in the settlement commission determining the net profit of 0.075% (0.25% x 30%). 4.4.7 In the instant case, Assessing Officer has determined the gross commission @1.28°% with respect to booked commission, which in my opinion is high looking at the gross commission offered by the appellant during the AY 2012-13 to 2016-17. It is pertinent to mention here that appellant has vehemently argued the fact that Assessing Officer could not identify the exact seized material which shows that there was a unbooked commission related to the appellant company. It is also a fact that the appellant company was operating from same premises from where whole incriminating material was found and seized. ASAPL as well as appellant company, both were having the same business model and operating from the same business premises. Seized material also do not have any specific reference to any company. ASAPL being the flagship company, has declared the undisclosed income related to those seized material while submitting the application before ITSC. The ITSC order itself proves that the ASAPL Group of companies were earning the additional income which was not offered to taxation. Accordingly, it is necessary to make a little adjustment in the net profit earning of the appellant company with regard to booked commission as well. Considering all the facts, along with the order of ITSC in the case of ASAPL, I direct the Assessing Officer to adopt the half the rate which has been adopted by the ITSC in the case of ASAPL i.e. the additional net profit rate would be (50/100}* 0.075% (i.e. (0.5*0.25%)*30%) over and above the income disclosed by the appellant in its return of income. In view of the same, Ground Nos. 2, 2A and 3 are partly allowed.
After going through the order of the ld. CIT (A), we find that the ld. CIT (A) gave a detailed finding on all the issues involved in these appeals. Respectfully following the aforesaid order of the ld. CIT (A), we are inclined not to disturb the findings of the ld. CIT (A) and accordingly AY 2012-13 is dismissed. 15. With regard to other appeals being 2245 & 2248/Del/2025, since the facts are exactly similar to are applicable mutatis mutandis in ITA Nos.2244, 2245 & 2248/Del/2025. Accordingly, the appeals filed by the Revenue being ITA Nos.2244, 2245 & 2248/Del/2025 are dismissed. 16. To sum up : all the appeals filed by the Revenue are dismissed. Order pronounced in the open court on this 10th day of September, 2025.