TMI Blog2021 (12) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... e is allowed. - I.T.A. No. 6719/DEL/2016 - - - Dated:- 15-11-2021 - MS SUCHITRA KAMBLE, JUDICIAL MEMBER AND SH. PRASHANT MAHARISHI, ACCOUNTANT MEMBER Appellant by : Sh. V. P. Gupta, Adv Sh. Anunav Kumar, Adv Respondent by : Sh. Gaurav Pundir Sr. Dr. ORDER PER SUCHITRA KAMBLE, JM This appeal is filed by the assessee against the order dated 07/10/2016 passed by CIT(A)-36, New Delhi for assessment year 2009-10. 2. The grounds of appeal are as under:- 1. That the CIT(A) erred in upholding the order of the Assessing Officer determining the commission income at ₹ 53,91,000/- as against income of ₹ 42,33,526/- determined in the original order of assessment, which order had been subject matter of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission inspite of the fact that the Hon ble Tribunal had directed to determine the rate of commission taking into consideration the precedence available in this regard. 6. That the CIT(A) also erred in upholding the order of Assessing Officer determining commission @ 2.25% on the basis of rough notings in seized papers without appreciating that the notings under reference could not be relied upon as neither same were specifically in regard to 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 in all the cases of the Group for determining the rate of commission on total amount of accommodation entries and the notings under reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion income in respect of all the entries given outside the Group @ 2.25% disregarding the claim of Mr. Tarun Goel that commission income is to be taxed only in the case of Mr. Tarun Goel and at the rate of 25 paisa per 100 rupees. Thus, the Assessing Officer made addition of ₹ 53,93,144/- on account of unexplained commission. 4. Being aggrieved by the assessment order, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee. 5. The Ld. AR submitted that the appeal before CIT(A) was filed by the Company against order dated 19.03.2015 passed by Assessing Officer pursuant to directions of this Tribunal vide order dated 18.10.2013 passed in 94 appeals of the group, including the appeal of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd have already been considered and adjudicated by the B Bench of the Tribunal in the cases of the group and a consolidated order dated 23.01.2019 has been passed in 86 appeals, out of which 64 appeals were against orders in second round. The Tribunal has mentioned the facts regarding the second round of litigation in para 4 of the order. Vide the aforesaid order the Tribunal has held as under: - 1. Rate of commission is to be taken at 0.50% or 0.50 paise (refer para 16). 2. Transactions with outside parties only have to be considered to compute the profit i.e. commission income (para 17). Thus, the Ld. AR prayed that in view of above order of the Tribunal in the cases of the group this bench may be pleased to hold that rate of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aimed 25 paise or 0.25% on the strength of the statement of kingpin Shri Tarun Goyal, who in his statement recorded under oath u/s 132(4) of the Income tax Act, 1961 has categorically stated that the rate of commission charged on accommodation entries provided through various companies was 0.25%. 13. However, the statement of Shri Tarun Goyal recorded u/s 132(4) of the Act can be a good piece of evidence in the case of Shri Tarun Goyal only. 14. The Id. counsel for the assessee also relied heavily on various decisions of the co-ordinate bench wherein the Tribunal has adopted rate ranging from 0.15 paise to 0.50 paise i.e 0.15% to 0.50%. 15. As mentioned elsewhere, in such illegal activities, there cannot be any precedence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the respondent had earned a similar rate of commission. 8. Further relying upon past decisions by a number of Coordinate Benches of the Tribunal adopting a commission rate ranging from 0.15% to 0.50%. in similar matters, the Tribunal passed the impugned order. 9. This Court is of the view that none of the aforesaid findings are so perverse that they warrant an interference in appeal jurisdiction under Section 260A of the Income Tax Act, 1961. This Court is also of the view that the Tribunal, being the last fact finding authority, was entitled to guess work and arrive at a ballpark rate of commission. Consequently, no substantial question of law arises in the present appeals. Accordingly, the appeals along with pending applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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