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2021 (1) TMI 727 - AT - Income TaxAddition for commission earned on the bogus sales - notional 2% addition for commission - HELD THAT:- We find that pursuant to search and seizure action, the authorities below upon noting that there were bogus sales entry given by the assesses, have made notional 2% addition for commission earned on the said bogus sales - As noted that the said sales have been included in income and the income so derived has also been taken into account in the assessment. We find that the assessee is correct in this regard that when the sale is taken into income, there cannot be a further addition of 2% notional addition for bogus sales. The same sale cannot be genuine and bogus at the same time. In this view of the matter the notional addition of 2% as bogus sales commission is not a sustainable. When the sales have been accepted and taken into account in determining the income of the assessee there cannot be at the same time a notional 2% disallowance for commission on bogus sales, resulting in a double prejudice unsustainable in law - sales cannot be correct and bogus at the same time. This follows the common law maxim of approbate and reprobate. When the addition has already been deleted by us on merits, in our considered opinion the challenge to addition on other aspects are now only of academic interest. Hence we are not engaging in to the same. In the result we set aside the orders of authorities below and delete the addition. - Decided in favour of assessee.
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