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TMI Blog2016 (10) TMI 1129X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004-05 & 2008-09 in ITA 6559 & 6563/MUM/2012 have been set aside to the Assessing Officer for re-computing the commission income at 0.15% as against 2% applied by the Assessing Officer on the assessee's activity of providing accommodation entries. He further submitted that in identical circumstances in other cases were similar activity of providing accommodation entries carried on by the assessee, the commission was estimated and the penalty levied on such estimate was deleted by the I.T.A.T., Mumbai Bench in various cases. Therefore, he pleaded deletion of penalty in assessee case also. 3. Departmental Representative supported the orders of the authorities below. 4. We have heard rival submissions, perused the orders of the authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6559 & 6563/MUM/2012 by following various decisions in similar facts, directed the Assessing Officer to re-compute the commission income at 0.15% instead of 2% applied by the Assessing Officer. The Assessing Officer levied penalty for the addition made on account of commission income. The matter was carried out to the ld. CIT(A), who sustained the penalty by following the cases where similar additions were made and in the cases of Goldstar Finvest Pvt. Ltd., M/s. Kaycee Shares Broking Pvt. Ltd., M/s. Mihir Agencies Pvt. Ltd. and finally the assessee for the Assessment Year 2009-10 & 2010-11. We have also perused the coordinate Bench decisions in the case of Goldstar Finvest Pvt. Ltd., M/s. Kaycee Shares Broking Pvt. Ltd., M/s.Mihir Agencie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estimated the income from the accommodation entries @ 2% of the total transactions appearing in the bank accounts of the assessee, that the then FAA confirmed the quantum addition made by the AO, that in the case under consideration the Tribunal had held that commission income should be taken at the rate of 0.15% (ITA /6435/Mum/2012 - AY-2004-05 and other six appeals dt.6.1.16). The undisputed fact is that there is difference of opinion as to how much income should be estimated for the hawala entries-the AO estimated at a particular percentage, whereas the assessee had shown the income at a different percent. The addition made by the AO and confirmed by the FAA in quantum addition may or may not be. But, levying penalty on the basis of an e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the AO on the basis of estimated profit could not be a subject-matter of penalty for concealment of income. The Tribunal confirmed this order. On appeal, the AO dismissed the appeal and held that the finding arrived at by the Tribunal did not warrant interference as it was purely a finding of fact. In the case of Durga Kamal Rice Mills(265 ITR 25)the Hon'ble Calcutta High Court has held as under: "When two views are possible and when no clear and definite inference can be drawn, in a penalty proceeding, penalty cannot be imposed.......In quantum proceedings, a particular provision might be attracted for addition to the income of the assessee. But when it comes to the question of imposition of penalty, then independent of the fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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