TMI Blog2020 (7) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, while deciding identical issue in assessee s own case in assessment year 2010 11, the Tribunal, in the order referred to above, has upheld estimation of commission income @ 1% of the total turnover. However, to be fair to the assessee, the aforesaid decision of the Tribunal was not available before learned Commissioner (Appeals) while deciding the appeals for the impugned assessment years. We set aside the impugned orders of learned Commissioner (Appeals) and restore the issue back to his file for fresh adjudication keeping in view the order passed by the Tribunal in assessee s own case for the assessment year 2010 11, as referred to above. The assessee must be provided a reasonable opportunity of being heard before deciding the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s filed by the Revenue and cross objections by the assessee arise out of separate orders passed by the learned Commissioner of Income Tax (Appeals) 18, Mumbai, for the assessment year 2006 07, 2007 08 and 2011 12. ITA no.2991/Mum./2017 A.Y. 2006 07 ITA no.2992/Mum./2017 A.Y. 2007 08 Revenue s Appeal 2. The grounds raided by the Revenue in both the assessment years under appeal are only on the common issue of partial relief granted by the learned Commissioner (Appeals) with regard to estimation of commission income on accommodation entries. 3. Brief facts are, the assessee company is stated to be engaged in trading in merchandise goods. The returns of income filed for the assessment years under consideration we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e treated the entire transaction as non genuine. After rejecting the books of account by invoking the provisions of section 145(3) of the Act, the Assessing Officer proceeded to estimate the commission income @ 1% of both purchase and sale turnover shown by the assessee in all the assessment years under appeal. Being aggrieved with the assessment orders so passed, the assessee preferred appeals before the first appellate authority. 4. After considering the submissions of the assessee and other material on record, though, learned Commissioner (Appeals) agreed with the Assessing Officer that the assessee has not carried out any genuine purchase and sale transaction and is only an entry provider, however, he restricted the rate of commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s cannot be accepted as genuine. In fact, learned Commissioner (Appeals) has also accepted the aforesaid factual position while interfering only with regard to rate of commission. Therefore, the contention of the assessee that it is carrying on genuine purchase and sale transaction is unacceptable. Thus, in these circumstances, the assessee being engaged in providing accommodation bills / entries, estimation of commission income on the basis of its turnover is just and proper. Therefore, the only issue which needs to be decided is what is the reasonable rate of commission which can be estimated on such accommodation transaction and whether such commission can be charged on both purchase and sale turnover shown by the assessee. It is evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is common for all the years. It is stated by the assessee that before learned Commissioner (Appeals) the case was represented by a different Counsel and purportedly on his advice to file the cross objections after obtaining second opinion from another Counsel, the assessee kept quite as he was of the impression that the earlier Counsel would be obtaining second opinion from some other Counsel. Whereas, it is stated that the earlier Counsel was carrying an impression that the assessee would be obtaining a second opinion and thereafter the cross objection would be filed. It is stated that in view of the confusion arising out of obtaining of second opinion, the filing of cross objections got delayed. Thus, it is requested that the delay b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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