TMI Blog2021 (4) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee has shown commission income in original return of income. We find convincing force in the submissions of learned AR of the assessee that the assessee has already filed Return of Income under section 139 of the Act before the date of initiation of assessment proceeding and much less after completion of investigation carried out by Investigation Wing of Revenue, it could not in any way be termed as unexplained income, the addition of unexplained income is purely guess work of assessing officer. No justification in treating the commission income as unexplained cash credit, accordingly appeal of the assessee is allowed - I.T(SS)A No’s.87, 88 & 89/AHD/2017, I.T(SS)A No.61/AHD/2017, I.T(SS)A No’s.67 & 68/AHD/2017 - - - Dated:- 4-3-2021 - Shri Pawan Singh, Hon'ble Judicial Member And Dr. Arjun Lal Saini, Hon'ble Accountant Member For the Assessee : Shri Mitish Modi CA For the Revenue : Shri Ritesh Mishra CIT(DR) ORDER PER PAWAN SINGH, JUDICIAL MEMEBER: 1. This set of six appeals by three assessee against the separate orders of learned Commissioner of Income Tax (Appeals)-4, Surat, hereinafter referred as Ld. CIT(A) . In all appeals t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the CIT (Appeals) and the AO through the written submissions, the entire addition of tax of ₹ 3,10,200/- respectively ought to have been deleted in toto especially in view of the appellant's various submissions with AO including the written submission dtd. 21-11-2016 filed with the CIT (Appeals), which form part of statement of facts along with various submissions to be filed before Hon'ble ITAT, Ahmedabad and the appeal of the appellant be allowed in full as prayed for. 2. The Authorised Representative (AR) of the assessee submits that there is delay of two (02) days in filing appeal in ITA No.87, 88 89. The impugned order was passed by the ld. CIT(A) on 25.11.2016 and it was served upon the assessee on 22.12.2016. The assessee filed appeal on 22.02.2017. Thus, the delay of two (02) days occurred in filing the appeals due to miscalculation of time period for filing appeal. The delay in filing appeal was neither intentional nor deliberate, but due to miscalculation on the part of the Counsel of assessee. The assessee would not be benefited by causing delay in filing appeal. The Ld. AR for the assessee preyed that the bench may take liberal view for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, in para 5 of the assessment order, the AO noted that assessee failed to submit details regarding commission income received during the relevant financial period and that assessee failed to prove with supporting evidences from whom the commission was received. The ld.AO concluded that assessee received commission income from unknown source and treated the same as cash credit under section 68 of the Act. 6. On appeal before the ld.CIT(A), the action of the AO was upheld. The ld.CIT(A) while sustaining /upholding the addition held that no record of any consignment sale was found during the search. No discovery of record or stock is found in the search. No details of percentage commission was given by assessee. Name and address of the persons were not provided. Further aggrieved, the assessee was filed present appeal. 7. Similarly in case of Ankit Manubhai Kachhadiya and Shri Bharatbhai Manubhai Baldha the treated the similar commissions income as unexplained cash credit in absence of evidence. Likewise, on appeal, the action of AO was upheld. As noted above, in all cases, the assessee s have raised common grounds of appeal. 8. We have heard the submission of the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of loose diamond chura. 10. The learned AR for the assessee further submitted that AO has not doubted the expenditure claimed for relevant year and not at all doubted as to its the nature and source of expenditure. There is nothing on record to support the baseless and arbitrary presumption drawn by the assessing officer by treating the commission income as cash credit under section 68 of the Act. The ld.CIT(A) also failed to appreciate that in whole of the assessment made by the assessing officer in absence of any tangible material seized during the search, the whole assessment is without jurisdiction of law void ab initio. 11. In support of his submissions, the A of the assessee relied upon the decision of Hon'ble Gujarat High Court in PCIT Vs Rameshbhai Jivraj Desai [2020] 120 taxmann.com 82 (Guj), Bombay High Court in CIT Vs Deepak Agarwal [2017] 86 taxmann.com 3(Bom) and Allahabad High Court in CIT Vs RML Malhotra 320 ITR 403/86 taxmann.com 137 (Allahabad). The learned AR of the assessee submits that facts in other group case are identical except in variation of figure of commission income. 12. On the other hand, the ld.Sr.DR for the Revenue supported the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on available address was carried out. Moreover, the assessing officer nowhere in the assessment order recorded that any incriminating material for non-genuine commission income was seized during the search carried out on the premises of assessee. Further, we have noted that similar addition was made against the assessee for A.Y. 2007-08 to 2010-11 and on appeal before the Tribunal, the Co-ordinate Bench deleted additions/ reverse the treatment in ITA No.83 to 86/AHD/2017 dated 14.05.2019. The Co-ordinate Bench further held in the order dated 14.05.2019 that no incriminating material was found during the course of search to make addition under section 68 of the Income Tax Act. 15. The assessee has shown commission income in original return of income. We find convincing force in the submissions of learned AR of the assessee that the assessee has already filed Return of Income under section 139 of the Act before the date of initiation of assessment proceeding and much less after completion of investigation carried out by Investigation Wing of Revenue, it could not in any way be termed as unexplained income, the addition of unexplained income is purely guess work of assessing office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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