TMI Blog2021 (7) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld CIT(A) has rightly upheld the reopening of assessment u/s 147 and passing of assessment order u/s 144 of the Act. - Decided against assessee. - ITA. No. 661 & 662/JP/2019 (Assessment Years : 2009-10 & 2010-11) - - - Dated:- 30-4-2021 - SHRI SANDEEP GOSAIN, JM AND SHRI VIKRAM SINGH YADAV, AM Assessee by : None Revenue by : Shri Amar Singh Nehra (Add. CIT) ORDER PER: VIKRAM SINGH YADAV, A.M. These are two appeals filed by the assessee against the orders of the ld. CIT(A), Ajmer both dated 27.02.2019 for the assessment years 2009-10 2010-11 respectively. Since common issues are involved, both the appeals were heard together and disposed off by this common order. 2. In ITA No. 661/JP/2019 for A.Y 2009-10, the assessee has taken the following grounds of appeal:- 1.1 The impugned addition and disallowances made in the order u/s 144/147/148 dated 27.12.2016 are bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same kindly be deleted. 1.2 The very action taken u/s 147 r/w 148 is bad in law without jurisdiction and being void ab-initio, the same kindly be quashed. Consequently the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sclosed sources and to complete assessment U/s 144 of the Act. There was no response from the assessee to the show-cause notice and thereafter, the assessment was completed ex-parte U/s 144 of the Act basis material/information available on record which reveals that the assessee was doing the business of goods as licensee as evident from bank statements and copy of licensee agreement available on record. The AO held that it would be fair and reasonable to consider net profit @ 8% of the total credit entries/deposits of ₹ 61,13,51,505/- and ₹ 4,89,08,120/- was determined as income from undisclosed sources and brought to tax in hands of the assessee. On appeal by the assessee, the ld CIT(A) has confirmed the addition of ₹ 10,72,934/- and remaining addition of ₹ 4,78,35,186/- was deleted. Against the said findings of the ld CIT(A), the assessee is in appeal before us. 5. We have heard the ld. DR and considered the material available on record. We have gone through the findings of the ld. CIT(A) which are contained at para 5.3 of his order which read as under:- 5.3 I have gone through the assessment order, statement of facts, grounds of appeal, written s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flecting in his bank accounts are relating to his Diamond business which he was doing on the commission basis and he was getting commission @ 0.10 paisa to 0.15 paisa per transaction, it was cleared by him that he was getting only 0.10% to 0.15% of gross commission on the said transaction which are reflecting in his bank statements. It was also submitted by the assessee in his statement that during the F Yrs. most of the trading of diamond business was deal with M/s Excellent Diamond Pvt. Ltd., Surat and branch at Mumbai. Accordingly, Notice u/s 133(6) of the I.T. was issued through Mail to M/s Excellent Diamond Pvt. Ltd, Surat to confirm the transaction with the assessee and send the copy of ledger account of the assessee, bank statement, copy of purchase bills and copy of seale bills etc. In compliance to the above M/s Excellent Diamond Pvt. Ltd, Surat sent the desired information through Mail. It was also submitted by the assessee that during the E. Y. 2010- 11 which is pertains to the A.Y. 2011-12 are not business entries which are only debtors creditors entries of his last business years. In this regard the Alt of the assessee submitted a copy of list of debtors an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee to finalize the assessment as an Ex- Party u/s 144 of the IT act 1961 on the basis of material available on record regarding various deposit entries /credit entries in his various bank account maintain with Axix Bank and Kotak Mahindra Bank treating as unexplained investment as undisclosed sources of income. But this show case letter was also returned back by the postal authority with the remarks NOT K_NOW'23-A. Again a show cause letter was issued on the assessee's Thane, Maharashtra address but the same was also returned back with the postal authority remarks that LEFT RETURN TO SENDER . As per KYC and opening forms of bank account of the assessee obtained u/s 133(6)0 the I.T. Act, 1961 by the undersigned from the Axis Bank and Kotak Mahindra hank of the persons regarding the business activities and outstanding balances. Accordingly. during the assessment proceedings letters were issued to all the live concerned persons but all the letters were also returned back by the postal authorities remarks L111 NOT KNOWN return to sender. In view of the totality of the facts and considering the material available on records and after gathering the inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, during the course of appellate proceedings the appellant has furnished complete details of the purchase and sales recorded by him in the books of accounts along with Audit Report explaining that entries appearing in the bank accounts of the appellant were only transactions related to the diamond business carried on by him on commission basis. The appellant himself has admitted in the statement recorded u/s 131 that he was getting commission @0.15% to 0.20%. The appellant in the rejoinder dated 27.02.2019 has also given comparative rates of gross profit of different concerns doing same kind of business which is reproduced hereunder: S. No. Name of the Assessee PAN A. Y. G.P. to Sales (In percentag 1. Mahak Diam Priavte Limited AAGCM9673E 2017-18 2018-19 0.03 -1.59 2. Darsh Exim Private Limited AAFCD0287N 2017-18 2018-19 -0.05 -1.15 3. Yashika Jewels Private Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the commission @ 0.20% on total turnover of ₹ 53,64,67,051/- taking into account statement of assessee u/s 131 recorded during the remand proceedings before the AO admitting receipt of commission in range of 0.15% to 0.20% and comparative third party cases engaged in similar line of business as referred by the assessee himself during the appellate proceedings. Accordingly, addition of ₹ 10,72,934/- was confirmed and remaining addition of ₹ 4,78,35,186/- was deleted. We therefore don t see any infirmity or perversity in the said findings of the ld. CIT(A) who has taken into consideration the entirety of facts and circumstances of the case including the additional evidence, statement of the assessee u/s 131, besides the submissions made by the assessee during the appellate proceedings. Further, the ld CIT(A) has rightly upheld the reopening of assessment u/s 147 and passing of assessment order u/s 144 of the Act. Accordingly, we are of the considered view that there is no legal or factual basis for us to interfere in the findings of the ld CIT(A) and the same are hereby confirmed and the grounds of appeal so taken by the assessee are thus dismissed. In the result, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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