2016 (10) TMI 1127 - AT - Income Tax

Estimation of Commission income - Addition made at 2% of gross deposits as against 0.15% offered by the assessee - Held that - The assessee submitted that no proper opportunity was given and hence assessments should be set aside to the Assessing Officer for fresh adjudication and he further submitted that the issue in appeal is squarely covered by various decisions of the Co-ordinate benches wherein it was held that the commission income from the business of accommodation entries should be assessed at 0.15% as against 2% assessed by the Assessing Officer. Taking note of all the decisions and submissions of the Ld. Departmental Representative we are of the view that the Assessing Officer should examine all these submissions of the Ld. Departmental Representative and the case laws relied on by the Ld. Counsel for the assessee and decide the issue afresh in accordance with law. Penalty levied u/s. 271(1)(c) - Held that - As the commission income assessable in the hands of the assessee has been on estimate basis no penalty is attracted on the additions/disallowances made on estimate basis.

Summary

Issues Involved:
1. Adequate opportunity of hearing provided to the assessee.
2. Validity of additions made by the Assessing Officer at 2% on gross deposits.
3. Confirmation of penalty levied under section 271(1)(c) of the Income Tax Act.

Detailed Analysis:

1. Adequate Opportunity of Hearing Provided to the Assessee:
The assessee contended that the Assessing Officer (AO) passed assessment orders without providing sufficient opportunity for hearing. It was argued that identical additions were made in 70 cases on a single day without adequate opportunity. The Departmental Representative countered this by stating that the assessee had filed written submissions and furnished evidence during the assessment proceedings, indicating that proper opportunity was provided.

2. Validity of Additions Made by the Assessing Officer at 2% on Gross Deposits:
The primary issue on merits was the addition made at 2% of gross deposits as opposed to 0.15% offered by the assessee. The assessee's counsel cited various decisions where it was held that commission income from accommodation entries should be assessed at 0.15% instead of 2%. The Departmental Representative argued that the decisions cited were based on specific facts of those cases and may not be applicable to the present case. The Tribunal acknowledged the need for the AO to re-examine all submissions and case laws and decide the issue afresh, ensuring adequate opportunity for the assessee to be heard.

3. Confirmation of Penalty Levied Under Section 271(1)(c) of the Income Tax Act:
The appeals for the Assessment Years 2004-05 and 2009-10 involved the confirmation of penalties levied under section 271(1)(c). The assessee's counsel referenced a similar case (Alpha Chemie Trade Agencies Pvt. Ltd.) where the penalty was deleted by the Tribunal. The Tribunal noted that in cases where commission income from accommodation entries was estimated at 0.15% instead of 2%, penalties were deleted. It was emphasized that penalties should not be levied based on estimated additions, as established in various precedents. Consequently, the Tribunal decided to delete the penalties levied under section 271(1)(c) in the present cases as well.

Conclusion:
The Tribunal restored the assessments to the AO for fresh adjudication, ensuring adequate opportunity for the assessee to be heard. The appeals for the Assessment Years 2005-06 to 2007-08 and 2010-11 were allowed for statistical purposes, and the appeals for the Assessment Years 2004-05 and 2009-10 were allowed, leading to the deletion of penalties under section 271(1)(c).