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TMI Blog2013 (12) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... n the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that Pooja industrial Corporation is operated by Shri Naresh B. Vora. c. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in ignoring the fact that commission of 4% is worked out on 2,59,65,000/- i.e. Rs.10,38,600/- which is deposited in Pooja Industrial Corporation and in the case of Shri Naresh B Vora commission, is worked out 4% on Rs.10,39,98,162/- i.e.Rs.41,55,926/- and considered in his hands. d. "On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in holding that the entries in seized item No.a-15 pertains to sale of chemical SBPS and not sale of Naptha unlike held by the A.O." 3. The assessment was framed u/s 144 of the Income Tax Act as the assessee did not file the requisite details. A survey u/s 133A was carried out in Vora Group cases on 24.9.1998. Subsequent to survey the books of accounts identified and inventories were impounded by the DDIT, Mumbai. It was found that the assessee and his brother Shri Naresh Vora were engaged in the activity of hawala bills and accommodation as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord filed by the assessee, the submissions as well as assessment framed in the case of Shri Naresh Vora the brother of the assessee the CIT(A) deleted the addition. 4. We have heard the Ld. AR as well as Ld. DR and considered the relevant material on record. The Ld. DR has submitted that since the deposit was found in the bank account of the assessee therefore, the AO has rightly made an addition on account of commission income which has not been disclosed by the assessee. He has further contended that there is no dispute about the fact that the assessee and his brother are engaged in providing hawala entries to the Naphtha dealers against the cash which was being deposited in the bank account and after deducting their commission income the amount was released to the dealers in the garb of sales. He has relied upon the order of the AO. On the other hand, the Ld. AR has submitted that the relevant document were filed before the CIT(A) which show that the assessee's bank account was operated by Shri Naresh Vora the brother of the assessee. He has further submitted that the deposit found in the assessee's bank account has been considered in the assessment of assessee's brother Shri N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pectively. The average rate works out to 3.07%. In principle, the data relevant for the AY 1998-99 cannot be extrapolated beyond that year. Therefore, we reject the 4% based estimation for the current years. Nevertheless, the said minimum and maximum % emanating from the said book conveys some whispers about the assessee business affairs and in the commissions percentages. Therefore using the said data with necessary modification, we proceed to estimate the profits of the assessee 3.07% being the average commission of the mm and mix percentages, we proceed to adopt the same as gross commission for this years under consideration and we apply to the undisputed turnover of Rs.10,39,98,162/- for AY 1999-00 accordingly. Out of the same, in our opinion, assessee should be entitled to some expenditure towards running of the business and other hidden expenses, if any. This kind of estimation, in our opinion, constitutes reasonable and therefore, AO is directed to adopt the above working for determination of the taxable income. In our opinion, the deduction out of the above towards the unaccounted and hidden expenses @ 0.5% and the net commission income earned on the above turnover should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the aggregate of cash deposits as computed in the hand of Shri Naresh Vora. We further note that neither the AO nor the CIT(A) has considered and given any finding on this issue that out of the total cash deposit in the bank certain amount is regarding the sales made by the assessee during the year on which the net profit has been declared in the return of income. Having regard to the facts and circumstances of the case in the interest of justice we direct the AO to verify this fact and then decide the issue accordingly. For the Assessment Year 1995-96 10. The assessee has raised the following grounds as under: "1. One the facts and in the circumstances of the case, the Learned CIT(A) erred in confirming the action of the Assessing Officer in taxing Rs.55,360/- as undisclosed commission income in the hands of the appellant. 2. On the facts and in the circumstances of the case, the Learned CIT(A) erred in confirming the action of the Assessing Officer in taxing loans of Rs.3,29,342/- of u/s 68 of IT Act, 1961." 11. Ground No. 1 regarding undisclosed commission income. In view of our finding in the revenue's appeal this issue is set aside to the recor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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