TMI Blog2016 (2) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... so not confronted to the assessee. We also find that the assessment order was framed in a hurry, possibly due to constraint of time. Though the notice u/s 153A was given on 1.5.2012, show cause notices were issued only on 5.2.2013, 8.2.2013 and 14.2.2013. The assessee gave a reply on 8.3.2013 and the assessments were framed on 28.3.2013. Though the AO had written a very detailed order, we find that the contention of the assessee that, material relied upon by the AO in his orders were not confronted to the assessee is correct. The contents of the show cause notices does not conform to the reasoning in the assessment order. Similarly, the first appellate authority has converted the protective addition made by the AO into a substantive addition without specifically confronting the assessee with such a proposal. The commission income was also bifurcated on ad hoc basis by the ld.CIT(A) without giving any opportunity to the assessee. Though the assessee has pleaded violation of principles of natural justice, the ld.CIT(A) did not address the objection by providing adequate opportunity by furnishing the evidences and by calling for the remand report on these issues from the AO. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessment Year 2005-06 such total income has been determined as follows which is extracted for ready reference:- Shri Virendra Jain owned up the documents, the amount of commission of ₹ 12375395/- received at the rate of 1.8% assessed in the hands of assessee on substantive basis and the amount of ₹ 68,75,21,969/- being the total amount credited but not explained on protective basis. 5. Similarly, for all the assessment years, the AO made addition of commission on substantive basis and cash credits on protective basis. The assessee carried the matter in appeal. The ld.CIT(A) in the impugned common order converted the protective assessment made by the AO u/s 68 into a substantive addition while upholding the income assessed on commission. He dismissed the appeals of the assessee. Aggrieved, the assessee is before us in all these appeals on the following grounds:- 1. That on the facts and in the circumstances of the case and in law Ld AO erred in passing impugned assessment order in strangulation of principles of natural justice and without giving adequate opportunity to assessee to plead his case and without making requisite independent enquiry and without c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee should be given adequate opportunity. He further prayed that the AO should apply the propositions laid down by the Tribunal in the case of Tarun Goyal (supra) and by the Hon ble Delhi High Court in the case of Vijaya Conductors Pvt. Ltd. and others (supra) and complete the re-assessment proceedings. 7. The ld. DR Ms Nirupama Kotru, on the other hand, strongly opposed the contentions of the assessee. She submitted that adequate opportunity has been granted to the assessee. She submitted that the AO has only made an addition of commission income earned by these people by providing accommodation entries and had made a protective addition of the cash credits. She further pointed out that the ld.CIT(A) after giving adequate opportunity to the assessee had converted the protective addition u/s 68 as a substantive addition. She strongly supported the order of the first appellate authority. On a query from the Bench as to whether the same amount has been taxed more than once, wherever there were chain and circuitous transactions between intermediary companies, she submitted that it was for the assessee to lead evidence and in the absence of the same these amounts can be adde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout specifically confronting the assessee with such a proposal. The commission income was also bifurcated on ad hoc basis by the ld.CIT(A) without giving any opportunity to the assessee. Though the assessee has pleaded violation of principles of natural justice, the ld.CIT(A) did not address the objection by providing adequate opportunity by furnishing the evidences and by calling for the remand report on these issues from the AO. 10. In view of the above discussion, we are of the considered opinion that there is violation of principles of natural justice in this case and, hence, all these appeals should be set aside to the file of the AO for fresh adjudication in accordance with law. Needless to say, the AO shall give adequate opportunity to the assessee. The AO shall confront the assessee with all the material/evidences/statements, etc. that he chooses to rely upon while making the assessment. The AO is also directed to take into consideration the principles laid down by the jurisdictional High Court and the Tribunal in various cases and dispose off the case by applying these principles some which we extract in this order for ready reference. The Delhi Bench of ITAT in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Vijay Conductors India Pvt. Ltd. in ITA No.683/2015 vide judgment dated 29.9.2015 upheld this order in the case of M/s Vijay Conductors India Pvt. Ltd. and others in the following words:- The common issue in all the appeals issues concerns the additions made under Section 68 of the Income Tax Act ( Act ) which was directed to be deleted by the ITAT. The ITAT referred to the order dated 28th December 2010 of the Settlement Commission which records inter alia that Mr. Gupta was an entry provider and that in his case only the amount of premium /commission received by him after reducing expenses incurred would be his additional income. The Assessing Officer (AO) gave effect to the order of the Settlement Commission and determined the income of Mr. S.K. Gupta without making any addition for unexplained cash credit. During the course of assessment Proceedings of the intermediary companies, including the Respondent Assessees, the AO sought directions from the Additional Commissioner of Income Tax under Section 144-A. The Additional CIT passed an order in which after discussing the facts he inter alia directed that it would be in the best interest of the Revenue to tax these tra ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
