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TMI Blog2014 (4) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... onvenience, these appeals are being disposed of by way of this consolidated order. However, in order to understand the implication, it would be necessary to take note of the facts of one appeal. We are, accordingly, narrating the facts, as they appear in the appeal in ITA no. 8932/Mum./2010, for assessment year 1996-97. 3. The sole issue involved, which is common in all the years under appeal, is determination of correct hawala income in the hands of the assessee. For the sake of ready reference, the grounds raised by the assessee in the assessment year 1996-97, are reproduced herein below:- "(a) The Assessing Officer as well as Commissioner of Income tax (Appeal) has failed to determine the correctly the hawala Income. The appellant has issued Bills i.e. Sales Bills to the commercial world i.e. the needy persons. Who has paid the appellant the Hawala Commission. (b) The Appellant Tribunal has given clear direction to compute Hawala Income and one can not earn Income from own concerns or Sister concerns or groups concerns and transaction of such concerns and or groups be excluded from the turnover. (c) The AO as well as CIT(A) ought to determine turnover as the transactions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bills without actually delivering the goods, except in a very few transactions. In other words, the assessee was mainly involved in hawala transactions i.e., accommodation entries. The Assessing Officer, vide original assessment order dated 26th March 2002, has taken the sales at Rs. 15,57,00,478. However, for the purpose of calculating net commission, he has estimated the income @ 1% of the sales in the following manner:- Total sales as per Profit & Loss account Rs.15,57,00,478 Less: Sales to sister concern Rs.16,05,068 Net turnover for estimating commission @ 1% Rs.15,40,95,410 Amount of 1% commission worked out Rs.15,40,954 5. The learned Commissioner (Appeals), during the course of first appellate proceedings, directed the Assessing Officer to estimate the income of commission from hawala transaction @ 0.4% of gross turnover. 6. In the second appeal, the Tribunal, vide order dated 31st March 2005, directed the Assessing Officer to estimate the income @ 1% of the total turnover and also directed to allow certain administrative expenses therefrom. The relevant observations and the findings of the Tribunal in the first round as given in Page-150 and 151, ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the file of the Assessing Officer for re-compute the profit on the above line. 8. We may mention that parties have addressed us at length on other peripheral aspects of the matter, but, in view of the estimation basis explained above, which we consider to be fair and reasonable, we see no need to deal with those issues in detail. The matter stands restored to the file of the Assessing Officer with the above directions. 7. In pursuance of the above, the Assessing Officer passed assessment order dated 30th November 2006, determining the total income of the assessee at Rs. 13,73,980, after allowing certain expenditure. Aggrieved by the said order with regard to allowability of certain expenditures, the assessee preferred an appeal before the learned Commissioner (Appeals), who vide order dated 14th August 2007, dismissed the appeal of the assessee. On further appeal before the Tribunal, the co-ordinate bench, vide order dated 11th September 2008, in the second round, again set aside the matter to the file of the Assessing Officer after observing and holding as under:- "3.1 We have perused the records and considered the matter carefully. The dispute is regarding estimation of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ragraphs. 9. The Assessing Officer, in pursuance of the aforesaid observations, finally computed the income at Rs. 12,28,020, after analyzing and verifying the various administrative expenses debited to the Profit & Loss account. Against the said order, the assessee preferred first appeal before the learned Commissioner (Appeals), wherein a plea was raised for the first time, that major part of the turnover constitutes sales to sister concern on which the assessee has not earned any income and, therefore, the turnover of the sister concern should be excluded for computing the commission income by applying the rate of 1%. In support of this contention, reliance was placed on the decisions of the Tribunal, Mumbai Benches, in Maganlal B. Jain and Palrecha and Co., ITA no.905/Mum./1981. 10. The learned Commissioner (Appeals) held that the Assessing Officer has only followed the directions of the Tribunal and has considered the expenditure after verifying the details as mandated by the Tribunal. These disallowances, as made by the Assessing Officer, have not been seriously agitated before him and the only plea taken before him is that the turnover relating to sister concern amounting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aising bank finances and these entries, therefore, cannot be viewed as source of revenue being generated. 6. As far as this plea is concerned, we are of the view that since matter is required to be restored to the file of the Assessing Officer for adjudication de novo in the light of directions, contained in Tribunal's order dated 31st march 2005, the Assessing Officer is to be directed to consider this plea as well. We accordingly direct the Assessing Officer to deal with this contention in accordance with the law and by way of a speaking order." 13. Thus, this matter needs to be looked into by the Assessing Officer as the Tribunal has admitted that intra group accommodation entries may not be the source of revenue. He also referred to various affidavits filed by the sister concern stating that on the sale bills issued to them, the assessee has not earned any commission income nor they have paid any such commission to the assessee. He submitted that these affidavits were also filed before the Assessing Officer. Thus, the sum and substance of the learned Counsel is that while estimating the income @ 1% as commission on the total turnover, the turnover pertaining to sister concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avel beyond the scope and ambit of the directions of the Tribunal. The plea which has been taken by the assessee before the learned Commissioner (Appeals) or may be before the Assessing Officer, cannot be entertained in the third round of the proceedings. If the assessee had taken such a plea before the Tribunal in the first round of the proceedings and the Tribunal has not dealt with such an issue, then the only course left was to file misc. application or seek legal remedy before the High Court. Once there was no such direction either in the first round or in the second round of the proceedings, then such a plea cannot be entertained now as the scope of set aside proceedings by the Tribunal is strictly circumscribed by the directions of the Tribunal. Hence, the place and the ground raised by the assessee before us is not maintainable and are rejected. 16. Now, coming to the decision of the Tribunal in Anil Goel Exim Pvt. Ltd. (supra), as relied upon by the learned counsel, it is seen that this decision has been rendered in the case of a different assessee, may be in the case of a sister concern, however, the same has no relevance or bearing in the present case, as in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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