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TMI Blog2019 (5) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax (Appeals)-3, New Delhi, qua the assessment years 2004-05, 2005-06, 2006-07, 2007-08 & 2008-09 on the identical grounds inter alia that :- "1. That the CIT(A) erred in passing the order upholding the addition on account of commission to the extent of 2% without examining the facts of the case and the contentions of the appellant company. 2. That the CIT(A) erred in upholding the addition made by the AO. on account of commission to the extent of 2% without appreciating that as per the directions of Hon'ble ITAT vide its order dated 18.10.2013 the precedence available in this regard had to be considered and on that basis the rate of commission ought to have been determined at 0.25%. 3. That the CIT(A) also failed to appreciate that rate of commission at 2% could not be determined on the basis of rough notings in seized papers as the notings under reference could not be relied upon for the reason that neither same were specifically in regard to the rate of commission nor details were corroborated with other material and in any case the rates mentioned therein for a small amount could not be applied to all the cases of the group for determining the rate of commission on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Hon'ble ITAT. Further, all the entries which had been explained by the appellant should also have been excluded and only in respect of balance entries, commission income could be considered. 3. That the CIT(A) also erred in upholding the commission income @ 2.25% disregarding the direction of Hon'ble ITAT to apply the rate considering the precedence in this regard, for which necessary evidence had also been provided before CIT(A). 4. That the CIT(A) also erred in observing in the order that the appellant had only submitted a tabular chart giving summary of credit entries alongwith affidavit of directors without adducing necessary details and relevant documentary evidences in respect of credit entries. The appellant was willing to submit documentary evidences in support of all bank entries. It was only on the suggestion of CIT(A) that same were not submitted. The CIT(A) had expressed his view that it would not be possible for him to examine the voluminous record and, therefore, same could be submitted before Assessing Officer, pursuant to his directions." 5. The Appellant, M/s. Tejasvi Investments (P) Ltd. (hereinafter referred to as the 'assessee') by filing the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide its order dated 18.10.2013. 2. That the CIT(A) failed to appreciate that the appellant company is part of Tarun Goyal Group and, therefore, all intergroup entries in the bank account ought to have been excluded as per the direction of Hon'ble ITA T. Further, all the entries which had been explained by the appellant should also have been excluded and only in respect of balance entries, commission income could be considered. 3. That the CIT(A) also erred in upholding the commission Income @ 2.25% disregarding the direction of Hon'ble ITAT to apply the rate considering the precedence in this regard, for which necessary evidence had also been provided before CIT(A). 4. That the CIT(A) also erred in observing in the order that the appellant had only submitted a tabular chart giving summary of credit entries alongwith affidavit of directors without adducing necessary details and relevant documentary evidences in respect of credit entries. He failed to appreciate that the appellant submitted a chart giving nature of each of the credit entries and the details so given have been duly supported by the affidavit of the Director and, accordingly, the appellant had discharged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Rs. 1,64,01,670/-, Rs. 93,51,252/-, Rs. 36,00,386/-, Rs. 3,01,56,000/- & Rs. 50,00,000/- for assessment years 2004-05, 2005-06, 2006-07, 2007-08 & 2008-09 respectively remained unverifiable/unexplained cash credit and added to the income of the assessee under section 68 of the Act and thereby made addition thereof to the income of the assessee. AO also made addition of Rs. 2,08,125/-, Rs. 1,56,373/-, Rs. 58,500/-, Rs. 2,47,500/- & Rs. 56,250/- for assessment years 2004-05, 2005-06, 2006-07, 2007-08 & 2008-09 respectively on account of commission charged as per original assessment order @ 2.25% on the basis of Annexure A-12 page 13. 12. Assessee carried the matter by way of appeals before the ld. CIT (A) who has partly allowed the appeals. Feeling aggrieved, the assessee as well as Revenue have come up before the Tribunal by way of filing the present appeals. 13. We have heard the ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case. 14. Undisputedly, in the first round of appeals before the Tribunal, the only issue to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision rendered by Hon'ble Punjab and Haryana High Court in Kartar Singh vs. CIT - (1978) 111 ITR 184 (P&H). 18. Hon'ble Supreme Court in case of Mcorp Global P. Ltd. vs. CIT - (2009) 309 ITR 434 (SC) also decided the identical issue in favour of the assessee by returning following findings :- "6. In the case of Hukumchand Mills Ltd. v. CIT reported in [1967] 63 ITR 232 this court has held that under section 33(4) of the Income-tax Act, 1922 (equivalent to section 254(1) of the 1961 Act), the Tribunal was not authorized to take back the benefit granted to the assessee by the Assessing Officer. The Tribunal has no power to enhance the assessment. Applying the ratio of the said judgment to the present case, we are of the view that, in this case, the Assessing Officer had granted depreciation in respect of 42,000 bottles out of the total number of bottles (5,46,000). By reason of the impugned judgment, that benefit is sought to be taken away by the Department, which is not permissible in law. This is the infirmity in the impugned judgment of the High Court and the Tribunal. 7. There is one more aspect which needs to be mentioned. According to the impugned judgments of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2005 dated 06.01.2016 also decided the issue in favour of the assessee by returning following findings :- "18. Ground No 11 is in respect of request for enhancement to CIT(A) to enhance the income of the assessee by Rs. 59,70,000/- on account of shortage of binola bags. The DR submitted that CIT(A) should have enhance income on account to binola bags. The counsel submitted that this issue was never subject matter of appeal before ITAT hence CIT (A) has rightly refused to entertain the fresh issue raised by AO in remand proceedings. After hearing both the parties we are of the view that the CIT(A) is right in holding that what was not the issue before ITAT cannot be raised by the AO in remand proceedings. The ground no 11 is dismissed." 21. So, in view of the matter, we are of the considered view that the AO has exceeded his powers during remand proceedings, made by the Tribunal by making addition under section 68 of the Act on account of credit entries appearing in the bank statement and as such, the addition made by the AO is not sustainable, hence the ld. CIT(A) has rightly deleted the addition. Consequently, question framed is answered in the negative. 22. So far as que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entries were to be excluded. Perusal of remand order dated 18.10.2013 passed by the Tribunal was required to exclude the inter-group entries in the bank account in order to calculate the commission income. So, the AO is directed to exclude all intergroup entries in the bank account as per directions of the Tribunal and then calculate the commission income @ 0.50%. Consequently, this issue in the case of Bhawani Portfolio Pvt. Ltd. and Geefcee Finance Ltd. is determined in favour of assessee for statistical purposes. 26. Resultantly, ITA Nos.1565/Del./2017, 1566/Del./2017, 1567/Del./2017, 1568/Del./2017 & 1569/Del./2017 for assessment years 2004-05, 2005-06, 2006-07, 2007-08 & 2008-09 respectively filed by the assessee, M/s. Dwarka Impex Pvt. Ltd., are allowed; ITA Nos.2436/Del./2017, 2437/Del./2017, 2438/Del./2017, 2439/Del./2017 & 2440/Del./2017 for assessment years 2004-05, 2005-06, 2006-07, 2007-08 & 2008-09 respectively filed by the Revenue are dismissed; ITA No. 6516/Del./2015 for AY 2005-06 filed by the Tejasvi Investment (P) Ltd. is allowed and ITA Nos.484/Del./2015 & 6710/Del./2016 for AYs 2009-10 & 2005-06 filed by Bhawani Portfolio Pvt. Ltd. and Geefcee Finance Ltd. res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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