TMI Blog2023 (5) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... mmission income as unexplained cash credit, we respectfully following the decision of Tribunal allowed ground No.1 of the assessee Estimation of income of assessee - HELD THAT:- We find that neither the assessee has shown his true source of income nor the assessing officer brought on record the evidence regarding source of income of assessee. The only evidence, on the basis of which the income of assessee is estimated in the school admission form. It is settled position under law that only real income accrued or earned by individual, can only be brought to tax. Considering the decision of Hon ble Supreme Court in Kishan Chand Chellaram [ 1980 (9) TMI 3 - SUPREME COURT] and Andaman Timber [ 2015 (10) TMI 442 - SUPREME COURT] there grounds of appeal is restored back to the file of assessing officer with the direction to grant opportunity to the assessee to explain the nature and relevance of school admission form and to lead any other evidence if so desired by the assessee to disprove the contents of such school admission form. It is made clear that as the copy of said school admission form is scanned by assessing officer in the assessment order the assessee shall not insis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sory, misconceptual, irrational inferences based on scanty information gathered at the back of the appellant, by invoking the provisions of Section 69A of the Act is without jurisdiction, illegal, bad in law, perverse and hence, deserves to be set aside. (5) On the facts and in the circumstances of the case as well in law, both the lower authorities have grievously failed to consider in the right and proper perspectives the detailed explanations furnished for the brokerage income earned, the expenditures incurred there from and the household expenses incurred from the genuine and explained sources and hence, not justified. (7) On the facts and in the circumstances of the case as well in law, both the lower authorities ought to have found that the expenses claimed u/s 37(1) of the Act for the income earned out of the brokerage activities for which the crucial and credible evidences furnished by the appellant and therefore, the addition of Rs.48,00,000/- confirmed without appreciating the very nature of brokerage activity and the past history of the appellant is ultra wires, bad in law, unjustified and deserves to be set aside. 2. Brief facts of the case are that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed written statement. The submission of assessee are recorded in para-9.1 of the order of Ld. CIT(A). In the written statement, the assessee on the addition under section 69A of the Act, the assessee stated that Assessing Officer solely made addition on the basis of copy of form filled up by assessee to get the admission of children in G D Goenka School. The information was gathered by Assessing Officer directly from the school. There is no tangible evidence that assessee actually earned this much income. The entry in the form was filled up under the instruction of school management to show the income truly on estimated basis. The prime object of assessee at the time of filling applications for was got the admission only. The Assessing Officer ignored the books of account and all expenses incurred on the education of children is Rs.4,82,800/-. It is not a case that the assessee has not shown in the books of account, the actual educational expenses incurred for the relevant year. From his books of account, the assessee explained that total household expenses were of Rs.6,49,479/-, his family consists of himself, his wife and two children. The assessee further stated that there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee has filed present appeal before us. 6. We have heard the Ld. Authorized Representative (AR) of the assessee and the Ld. Departmental Representative represented CIT-DR for Revenue. Ground No.1 relates to addition of Rs.9,35,20/- in treating the commission income as unexplained cash credit. The Ld. AR of the assessee submits that this ground of appeal is covered by the decision of Tribunal in assessee s own case for AYs 2011-12 and 2012-13 in IT(SS)A No.67-68/AHD/2017 dated 04.03.2021. The Ld. AR of the assessee furnished the copy of order of Tribunal. 7. On the other hand, Ld. CIT-DR of the Revenue supported the order of lower authorities 8. We have considered the rival submission of the parties and have gone through the order of lower authorities. We have also seen the contents of order of Tribunal in assessees own case for AYs 2011-12 and 2012-13 (supra). We have noticed that on similar treatment of commission income, the coordinate bench of Tribunal passed the following order:- 13. We have considered the rival submission of both the parties and have gone through the orders of authorities below. We have also deliberated of various case laws relied by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission 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. In view of the aforesaid factual and legal discussion, we do not find any justification in treating the commission income as unexplained cash credit, accordingly appeal of the assessee is allowed. No contrary law is brought to our notice. 16. In the result the appeal of the assessee is allowed. IT(SS)A No.88 89/AHD/2017 for A.Y. 2012-13 13-14 and IT(SS)A.No.61, 67 68/AHD/2017 for A.Y. 2011-12, 11-12 12-13 respectively: 17. As noted above the facts in IT(SS)A No.87/AHD/2017, the assessee s have raised identical grounds of appeal from facts in this appeal is also identical, therefore, following the principal of consistency, these five (05) appeals i.e. IT(SS)A No.88 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded cross-examination of the person from whom such information was gathered and violated of principle of natural justice. To supports his submission, the Ld. AR of the assessee relied upon the decision of Hon'ble Supreme Court in the case of Kishanchand Chellaram Vs CIT (1980) 125 ITR 713 (SC) and Andaman Timber vs. CIT 62 taxman.com 3 (SC) and decision of Hon'ble Rajasthan High Court in the case of CIT vs. Sunita Dhadda 100 taxmann.com 525 (Raj). 11. On the other hand, Ld. CIT-DR of the Revenue supported the order of lower authorities. Ld. CIT-DR for the Revenue further submits that the search was conducted on Dalia group and the case of assessee was also covered. The statement of assessee was also recorded under section 132(4) of the Act. In reply to the Q.No.5 the assessee stated that his household expense is at Rs.14 lakh. During search five luxurious cars model of i-10, Mercedes, jaguar as recorded in Q.No. 8 were found. In answer to a specific question, the assessee stated that he does not know in whose name or vehicle are registered .Further the assessee admitted that he is of all five vehicle were found at the house of assessee. However, the assessee tried to exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng material. The Assessing Officer gathered information directly from the school, thereto at the back of assessee. The assessee has incurred educational expenses of Rs.4,82,800/- only which is shown in the return of income. 13. We find that neither the assessee has shown his true source of income nor the assessing officer brought on record the evidence regarding source of income of assessee. The only evidence, on the basis of which the income of assessee is estimated in the school admission form. It is settled position under law that only real income accrued or earned by individual, can only be brought to tax. Therefore, considering the decision of Hon ble Supreme Court in Kishan Chand Chellaram Vs CIT (supra) and Andaman Timber Vs CIT (supra) there grounds of appeal is restored back to the file of assessing officer with the direction to grant opportunity to the assessee to explain the nature and relevance of school admission form and to lead any other evidence if so desired by the assessee to disprove the contents of such school admission form. It is made clear that as the copy of said school admission form is scanned by assessing officer in the assessment order the assessee sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
