9911796707
TMI Blog2023 (12) TMI 871X X X X Extracts X X X X X X X X Extracts X X X X ..... passed under Section 143(3) r.w.s 147 of the Income Tax Act, 1961 (in short 'the Act') dated 20.03.2014, 21.03.2014, 28.03.2014& 10.03.2014. 2. Since the issues involved in all the appeals of the different assessee for all different assessment years involving identical facts, issues and even the grounds of the revenue being similar for all these nineteen appeals were thus, heard together and are being disposed off by this consolidated order. 3. At the outset, the ld. AR has submitted that the matter pertaining to Smt. Kusum Devi Vijayvargiya in ITA no. 944/JP/2015 may be taken as a lead case for discussions as the issues involved in the lead case are common and inextricably interlinked or in fact interwoven and the facts and circumstances of other cases are identical except the difference in the amount in other assessment year. The ld. DR did not raise any specific objection against taking that case as a lead case. Therefore, for the purpose of the present discussions, the case of ITA No. 944/JP/2015 is taken as a lead. 3.1 Based on the above arguments we have also seen that for these appeals are on similar facts, similar arguments and similar grounds raised, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f cash deposit below the threshold limit were taking placed in the bank account maintained by the assessee in different branches of Kishangarh, the Investigation Wing carried out survey under section 133A of the I.T. Act on 18.01.2011 at the business cum residential premises and also recorded statements u/s 131 for the purpose of making enquiries. Thereafter, the case of the assessee was centralized in the office of ACIT, Central Circle, Ajmer vide CIT, Ajmer's order No. CIT/AJM/2010-11/652 dated 10.06.2011 from ITO, Ward, Kishangarh. The assessments for A.Y 2008-09 to 2010-11 were re-opened u/s 147 and also case for A.Y 2011-12 selected for scrutiny. 5.1 The assessee filed original return of income on 29.10.2012 declaring total income at Rs. 2,32,390/-. The assessee claimed to have earned the income from commission. A notice u/s 148 of the IT. Act was issued on 18.03.2013 and same was duly served upon the assessee on 22.03.2013. In compliance, assessee vide letter dated Nil received in this office on 05.04.2013 has stated that return of income filed on 29.10.2012 may be treated return in response to notice u/s 148 of the IT. Act. The assessee also asked reasons for re-opening the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t through cheque and for balance amount they have been using their confidants ( Facility Providers). The confidents are having multiple bank accounts either in their name or in the name of their family members or concerns / firms. Their bank account numbers are intimated to the buyers who deposit the balance amount, which is actually on money, in the bank account of the confidants. The buyer deposit amount below Rs.50,000 to avoid mentioning PAN on pay in slips. After receipt of the amount in bank account, the confidants, i.e. Facility providers withdraw the amount of on money and handover to the beneficiaries i.e. the sellers. The facility providers claim that they receive Rs. 200/- to 300 per Rs.1,00,000/- received in their bank account by way of Commission. As has been admitted by the assessee during survey u/s. 133A. The assessee is also prima facie found engaged in providing facility of bringing cash payment of the marble traders by allowing them to use her bank accounts. Also this is in conformity with the prevailing market practice in this business in the region. On perusal of balance sheet filed by the assessee along with the return of income, it was surprised by that no ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt withdrawn from these accounts on various dates given. Thus, the contention that commission income was earned by the assessee on deposits made in the banks is not accepted by the ld. AO. In absence of these basic information, the ld. AO did not accept the contention that the assessee was just allowing her bank account to bring the sale proceeds of unaccounted sales of some sellers and for that she used to get commission only. The ld. AO further noted that had the assessee furnished the names and address of depositors as well as beneficiaries to whom payments were made, the assessee's claim could be accepted that she was just a broker earning commission. In absence of these basic details, it is not proved that she was providing facility of bringing unrecorded sales proceeds of any sellers through her bank accounts. In this situation the ld. AO noted that there is no other option except to hold that the deposit in the bank accounts are nothing but assessee's own trading receipts/ sale proceeds and withdrawals were for the corresponding purchase and expenses. Accordingly, the assessment was framed, estimating G.P. rate of 16% on the total turnover of Rs.17,89,78,405/- which came to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the marble traders. Here it is also relevant to note that the AO has also stated in his order about the said market practice in the business of marble trading where there is large scale under invoicing and under billing of sales. The ld. AO has stated that "generally, for obtaining sale consideration of actual transaction from the buyers located outside the hometown or throughout India, the traders obtain part amount through cheques and for balance amount, they have been using their confidants (facility providers). The confidents are having multiple bank accounts either in their name or in the names of their family members or concern/forms. Their bank account numbers are intimated to the buyers who deposit the balance amount which is actually on-money, in the bank account of the confidants. The buyers deposit amount below Rs. 50,000/- to avoid mentioning PAN on pay-in-slips. After receipt of amount in bank account, the confidants i.e, facility providers withdraw the amount of on-money and hand over to the beneficiaries i.e. sellers." The AO has therefore, given his prima facie finding that the assessee is found prima facie engaged in providing facility to bring cash payments of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial in this respect and the High Court relied on the same which stipulates that when the question is whether any person is owner of any-thing of which he is shown to be in possession, the onus of proving that he is not the owner is on the person who affirms that he is not the owner. In other words, it follows from the well-settled principle of law that normally, unless the contrary is established, title always follows possession. In the facts of this case, indubitably, possession of the wrist-watches was found with the petitioner. The petitioner did not adduce any evidence, far less discharge the onus of proving that the wrist-watches in question did not belong to the petitioner. Hence, the High Court held, and in our opinion rightly, that the value of the wristwatches is the income of the assessee. In this connection, reference may be made to the views expressed by Justice Tulzapurkar, as his Lordship then was, of the Bombay High Court in the case of J.S. Parkar vs. V.B. Palekar (1974) 94 ITR 616 (Bom) : TC42R.1775, where, on a difference of opinion between Justice Deshpande and Justice Mukhi, Justice Tulzapurkar agreed with Justice Deshpande and held on the question whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the course of assessment proceedings. There is nothing on record to suggest that the assessee was not having access to the said information or was prevented by sufficient cause from sharing these information with the AO. It is not the plea of the assessee all these documents were seized during the course of survey and she was not having access to all these documents which were admittedly maintained by her while transacting through her bank accounts. In our view it is for the assessee in whose bank accounts the money has been found deposited to explain the nature and source of such deposits and it is in respect of every such transaction, the assessee has to provide the necessary explanation to the AO. Similarly, the claim of the asseseee that the money was withdrawn and given to the various beneficiaries has to be explained for each of the transactions and the necessary linkage/nexus has to be established by the assessee. The same is in conformity with the proposition of law laid down by the Hon'ble Rajasthan High Court in the case of R.S. Rathore 212 ITR 350 (Raj.). In that case, even though the decision were rendered in the context of section 68, to our mind the same is equally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a position to feel satisfied with regard to the explanation submitted and observed that some of the investments were not genuine. It was not justified on the part of the Tribunal in such a case to uphold the order of the CIT(A). While explaining the various credits and investments, it may be possible that the assessee may be successful in explaining some of them, but that does not by itself mean that the entire investments have to be considered as explained. Even lapse of time or inability of the assessee would not make the unexplained investment an explained one. It is each and individual entry on which the mind has to be applied by the taxing authority when an explanation is offered by the assessee. If no explanation has been offered in respect of a particular entry, the taxing authority will be justified in coming to the conclusion that the said investment is unexplained. It is not the totality of the credit entries which are to be allowed or to be disallowed. This work has to be done on the basis of the explanation offered for different entries and if the explanation of the assessee is acceptable on the basis of the evidence produced before the taxing authority, the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtained by the AO by issuing notices calling for the information from the various banks. It seems to us that the reason for inaction on the part of the AO is account of AO not having necessary records of survey maintained by the Investigation Wing. There thus seems to be a clear lack of co-ordination between the Investigation wing and the Assessing Officer handling the assessment. We do not see a justifiable reason especially where the case of the assessee alongwith other similar assesses were centralized before a single assessing authority, why the survey records cannot be shared with the said authority so that the efforts initiated through survey can lead to a logical conclusion by arriving at the appropriate assessment in the hands of right persons. The fact is that huge cash has been found deposited in the bank accounts maintained by the assessee and it is the assessee's plea that money does not belong to her and it belongs to some other beneficiaries. The money therefore belongs to someone who should be brought to tax as per law where the plea of the assessee is accepted. 2.11 Now looking at the order of the ld CIT(A), we find that even ld CIT(A) has merely gone through the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able opportunity and they shall equally cooperate and shall submit necessary explanation/information/documents as available and required by the ld CIT(A). 2.13 With the above directions, we set-aside the matter to the file of the ld CIT(A) for a fresh examination and the appeal of the Revenue is allowed for statistical purposes. 2.14 In ITA No. 943-945/JP/15 in case of Smt Kusumdevi Vijayvargia, ITA No. 932-935/JP/15 in case of Smt Sudarshna Somani and ITA No. 940-941/JP/15 in case of Shri Naresh Kumar Agarwal, both parties agreed that the facts are parimateria and similar grounds of appeal have been raised by the Revenue as in ITA No. 942/JP/15 decided supra. In view of the same, our observations and decision in ITA No. 942/JP/15 shall apply mutatis-mutandis to these appeals as well. 8. Feeling dissatisfied with the above finding of the Income Tax Appellate Tribunal, the assessee preferred an appeal before the Hon'ble Rajasthan High Court. The dictum of the jurisdiction high court in all these group of cases is reproduced here in below : "1. Since in all these appeals, common question of law and facts are involved, they are decided by this common judgment. 2. This court w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he survey reports and statements of the appellants of Madan Gunj, Kishan Garh. 6.1 From the perusal of the reasons for reopening of the assessment that has been enclosed with the remand report the undisputed fact at a glance is that the action u/s 148 was taken for assessing the commission income from the transactions facilitated by the appellant "Money withdrawn by taxpayers was given in cash to Marble traders and which is against the provision of income tax Act. 1961..... .... and looking to this extra income tax can be recovered" This is also an admitted fact by the AO and the relevant part of the remand report No. DCIT/CC/AJM/2015-16/ Dated: 09-03-2015 read as under: "6. Reasons for reopening assessments were recorded for escapement of income on account of commission on amount of unaccounted sale consideration of beneficiaries received in their bank account." 6.2 The intentions of assessing the commission income from the transactions facilitated by the appellant like persons is established from the fact that only commission income was taxed in cases of the Shri Prakash Chand Vijayvargiyaand Shri Manoj Kumar Agarwal AY 2009-10 and that action of the AO was ratified by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant neither have establishment nor infrastructure to conduct business of marble trader as argued in para 5.3. This is also an admitted fact by the AO and the relevant part of the remand report No. DCIT/CC/AJM/2015-16/ Dated: 09-03-2015 read as under: "7. In the first part of assessment order, assessees are termed as facility provider on the basis of their submission. They claimed that they were getting commission on the amount of deposits made by the customers of beneficiaries Kishangarh in their bank accounts and handed over amount after making withdrawal to the beneficiaries. In the later part of assessment order they were treated as marble traders as gross profit on turnover in their bank accounts was applied for the reasons that they have not made available details as discussed in the fore going para-6. Smt. Kusum Devi Vijayvargiya a) Assessee is not registered with sales tax department and not filed Sales tax return. b) Assessee is not registered with Central Excise and not filed excise Return. c) Assessee has not shown Debtors and creditors. d) Assessee has no Purchase and Sales account. e) Assessee has no depreciable assets. f) No books of accounts maintaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toto. Here, taking the cue from the cases of Manoj Agarwal reported at 117 TTJ (Del SB) 145 and Sanjay Kumar Garg reported at 114 TTJ 77 (Del) where in as much as 20% to 30% of the commission income is allowed as expenses, I think it would be close to justice if an expenses of 25% of commission income is allowed. In other words expenses of Rs. 75 per Rs. 1 Lac of transaction facilitated could be allowed. 6.7 The combined finding of above para 6.5 and 6.6 is that a net commission of Rs. 225 per Rs. 1 Lac of transaction facilitated could be taxed on the bank deposits taken by the AO as turnover on page 11/12 of last sub-para of para 6 of the assessment order as under: AY the bank deposits taken by AO as turnover on page 10 of last sub-para of para 6 2008-2009 Rs. 1,97,17,470/- 2009-2010 Rs. 11,37,60,458/- 2010-2011 Rs. 17,89,78,405/- 2011-2012 Rs. 18,28,77,979/- "With the above finding, the GP addition made by the AO on transaction facilitated by appellant is modified for upholding only net commission income as concluded in para 6.7. Thus, these grounds are treated as partly allowed. 7. The ground no. 4 of these appeals is general nature and need not be adjudicated. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... During the assessment proceedings the assessee vide letter dated 03.03.2014 was asked as to why gross profit on undisclosed turnover to the tune of Rs.11,37,60,458/- should not be added to the total income. The assessee has not furnished any explanation or clarification. It is to mention that she gets only commission of Rs. 100/- to Rs. 300/- pm Rs. 1 lac of cash received in the bank account maintained for the purpose of bringing unaccounted receipt against sales made by the beneficiaries and deposited by the customers located in different part of the country. The contention of the assesse that she received commission of Rs. 100 tp Rs. 300 pm Rs. 1 lac can only be considered if complete details of cash deposits and withdrawals alongwith exact names and addresses of depositors and beneficiaries to whom payments were submitted to the AO. But, the assessee has failed and expressed her inability to provide names and addresses of all the beneficiaries and to produce them for identification and confirmation. Therefore, it is confirmed that the assessee is engaged in the business of Marble Trading and the deposits in bank accounts on different dates represent the sale proceeds and hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 [2020] 118 taxmann.com 166 (Delhi) Ravinder Kumar Vs ITO 25-30 6 [1963] 50 ITR 1 (SC) Kale Khan Mohammad Hanifv.Comnnissioner of Income-tax 31-37 11.2 The ld. DR vehemently relying on the finding of the ld. AO submitted that had the assessee furnished the names and address of depositors as well as beneficiaries to whom payments were made, the assessee's claim could be accepted that she was just a broker earning commission but in the absence of these important evidence the story advanced by the assessee is not acceptable and the same is advanced just to avoid the offering of the profit earned on the unaccounted transaction of purchase and sale of marble done by the assessee. The ld. DR further relying on the order of the ITAT in the earlier round of litigation submitted that the bench has directed the assessee to submit the following documents for examination : 2.12 In our view, the matter requires a deeper and a coordinated examination by the authorities at the higher level to bring the correct facts on record which should conclusively establish that either the assessee is the owner of the money found deposited in her bank accounts as claimed by the AO or the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace for several years. Later on the cases of the assessee were centralized on dt.10-6-2011 from ITO, Kishangarh to ACIT, Central Circle, Ajmer. The case for the year under consideration was reopened by issuing notice u/s 147 on dt.18-3-2013. In response to the notice, the assessee stated on dt.5-4-2013 that the original return filed on dt.29-10-2012 may be treated as the return filed in response to the reassessment notice. For the year under consideration an amount of Rs.178978405/- was determined by the Id. AO as unaccounted bank transactions. During the course of reassessment proceedings, the assessee has repeatedly stated that it has only earned commission income out of the banking transactions. Initially the Id. AO appears to have agreed with the contentions of the assessee that money was deposited and withdrawn on account of beneficiaries as in the entire assessment proceedings, it insisted to disclose the names and addresses of the beneficiary as would be seen from the assessment order. Specifically please refer Page 3 of assessment order wherein mention of two questionnaire dt.17-1-2014 is appearing where the ld. AO enquired about the names and addresses of beneficiaries. Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h various documents were recovered from the assessee but not in a single paper or slip any sort of quantitative or other details were found so as to suggest that the assessee was involved in trading in marble. 1.1.3 Reasons Recorded Itself do Not Suggest any Trading in Marble by the Assessee: Reasons recorded by the ld. AO is appearing at page 10 para 5.2 of CIT(A) order and from the same it will be gathered that the department could not find any evidence or material with regard to trading in marble by the assessee and therefore, very vague reasons were taken by the Id. AO for reopening of assessments. The reasons essentially states that the assessee was in the business of depositing and withdrawing of money from bank account and in the entire reasons there is no mention of any sort of trading in marble by the assessee. It is pertinent to note that the Id. AO itself has stated in the remand proceedings that initially the reasons were recorded for escapement of commission income and the relevant extract of the same is appearing below: "6. Reasons for reopening assessments were recorded for escapement of income on account of commission on amount of unaccounted sale consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. AO suggested that if someone has intention to make unaccounted transactions then it need not to have the above. We may submit that this observation of the ld. AO is grossly incorrect as the department intended to tax the turnover not in lacs but in several crores. For trading in marble, at least one would need a place where the buyer could choose the marble of their choice, at least it would need bare minimum infrastructure like table, chair etc., at least it would need some account books to enter the quality, quantity or weigh of marble etc., at least it would need some employees, at least it would need some power connection etc. These all were missing in the present case so by no stretch of imagination it could be assumed that the assessee was in the business of trading in marble and therefore, the ld. CIT(A) was right in assessing only the commission income. 1.2.1 The ld AO itself Have Agreed of Prevalent Practices of Facility Provider: it is important to note that the ld AO itself has mentioned at more than one place in the assessment order of such activities of providing bank account facilities to deposit and withdraw the cash by various persons like assessee. At pag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions at the very fag end of limitation i.e. on dt.3-3-2014 (see AO page 8 point no.6). This change of mind was without any basis or change in facts and circumstances. The only reason given by the Id. AO was that the assessee could not provide the names and addresses of all the beneficiaries with party wise amount and also failed to produce them (this is explained in later paras). In fact, similar situation was there in the entire assessment proceedings and therefore, the change of stand was without any logical basis or incremental evidence on record. Therefore, the ld. AO was totally incorrect and unjustified in its approach and as such the conclusion reached by the ld. AO was without any valid basis. 1.3.1 No Ways and Means with the Assessee to Produce the Beneficiaries: The ld AO denied the submission of the assessee only on the ground that it could not produce the beneficiaries or give confirmation from them. In this regard we may submit that what the Id AO was expecting from the assessee was beyond the possibility of fulfilment. The modus operendi itself suggest that the assessee has no control over the beneficiary and the assessee merely was acting as facilitator. After ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk account and the entire bank deposit could not be considered for making of additions. The fact in the present case is also similar to a great extent. 1.6.1 Commission Rightly Assessed @Rs.225/- per Lac by the ld. CIT(A): In the instant case, survey was carried out at various unrelated parties at the same time. It would be clear from the statement of the assessee that the assessee was earning commission to the tune of Rs.150/- to Rs.300/- per lac. It is pertinent to note that similar statements have been given by several other parties in the course of survey. The ld. CIT(A) has taken the commission at the higher end of such range i.e. @Rs.300/-. Thus the same was taken on the basis of prevalent practices as well as the statement of the assessee. 1.6.2 Expenses @25% out of Commission Rightly Allowed by the ld. CIT(A): It is also submitted that the assessee has also to incur certain expenses like conveyance, telephone, stationary, light, bank charges etc. for follow up, verification, documentation of deposit and withdrawal etc. The ld. CIT(A) has rightly considered all this and allowed @25% of the commission received. This fact of incurring of expenses has been approved in other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 Affidavit as per direction of Hon'ble ITAT 39-41 The above affidavit is being submitted as per the direction given by the Hon'ble ITAT CONSOLIDATED PAPER BOOK INDEX Sr. Particulars Pages 1 Report submitted u/s 250(4) by the ld. DCIT, Central Circle, Ajmer before the ld. CIT(A) on dt. 07-08-2015 1-2 2 Remand report of the ld. DCIT, Central Circle, Ajmer submitted before the ld. CIT(A) on dt. 09-03-2015 3-12 3 Copy of communication from ITO Ward-2 & Ward-1, Kishangarh to the ld. DCIT which was submitted before the ld. CIT(A) 13-20 4 Copy of statement of the husband of the assessee taken during the course of survey 21-34 5 Copy of reason recorded 35 6 Copy of assessment order for AY 2009-10 36-38 1. Certified that all the above papers were before both the lower authorities. 2. Papers placed at sr. no. 1-6 were submitted by the ld. AO before the ld. CIT(A) in the course of remand proceedings. 12.2 The ld. AR of the assessee also filed submissions as per the direction of the bench and has clarified the following points which we consider it fit to reiterate here in below: Reg.: Kishangarh matters as per the list enclosed Sub.: 1. Submissions as per t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvance the submission or further evidence as per rule 29 of ITAT Rules to decide the appeal read with the direction given by the bench in the earlier order which has been quashed by the High Court. In consequence revenue has relied upon the finding of the assessing officer and has submitted that the assessment has been framed in accordance with the records available and the revenue do not intend to file any further evidence. Whereas the assessee also filed an affidavit. The content of the affidavit reads as follows: Affidavit Before the Hon'ble Income Tax Appellate Tribunal, Jaipur Bench, Jaipur 1.Kusum Devi Vijayvargiya, daughter of Shri Goverdhanlal Vijayvergia resident of Near Ram Mandir, Chhabra Colony, Madanganj, Kishangarh, Ajmer 305801 aged 57 years do hereby solemnly affirm as under: 1. That my appeal before the Hon'ble ITAT is pending with i. Appeal No. 944/JP/2015 for AY 2010-11 ii. Appeal No. 945/JP/2015 for AY 2011-12 2. That Hon'ble ITAT has required to furnish an affidavit in terms of order of Hon'ble High Court to allowed submission of any further material by appellant or respondent now I submit as under: 3. That I have submitted a pape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se or details of sundry debtor or credit found at the time of survey. Thus, all these confirmations suggest that assessee has not done any business of marble and therefore, the estimation of profit by the ld. AO was not in accordance with the law and therefore, he supported the order of the ld. CIT(A) who has in consonance with the income estimated in other case and in accordance with the reasons recorded estimated income is required to be sustained and the appeal of the revenue has no merits. 13. We have heard the rival contentions and perused the material placed on record. In these bunch of appeal the Hon'ble Jurisdictional High Court has quashed the order of the ITAT in the first round and directed to decide the issue based on the material available on record. Therefore, both the parties were given sufficient time and opportunity to advanced the evidences or argument in support of their claim. But both the parties though agreed before the High Court to provide the details has not placed on record any further information / evidences and therefore, we do not have any option but to decide the issue based on the material available on record. The bench in the first found given the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e owner of the money found deposited in her bank accounts as claimed or the assessee is merely a facilitator and earns commission income. The revenue has not placed on record any subsequent factural report on the action taken after the survey carried out at the premises of the assessee. Therefore, the bench has not reason to look at the arguments of the revenue that the matter requires further examination. Even the ld. AR of the assessee that based on the survey the revenue has already taken against many of the marble traders and they have surrendered the profit this important information is not shared by the revenue. Thus, this plea of the revenue in absence of the proof has no merits. As the assessment was reopened to tax the commission income as per the reasons record the same is thus now dealt with by the bench based on the further questions / enquiry posed by the bench. 13.2 The earlier question posed and our findings based on the records available before us are as under: Issue posed. (1) "the assessee shall provide all the requisite details in terms of names and address and other requisite particulars of the depositors as well as of the beneficiaries;" At page 5 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e found force in the arguments that the assessee is merely facility provider and she should be charged for the commission income and thus the assessee has provided linkage of sale of marble traders and based on these information some of the marble traders have surrendered the profit as argued by the ld. AR of the assessee. The revenue could not controvert the averments of the ld. AR of the assessee. Therefore, in the absence of the controverted evidence placed on record by the revenue we accept the averment of the assessee which is also found recorded in the order of the assessment. Issue posed. 3) The ld CIT(A) shall call for the records maintained by the Investigation Wing in respect of the survey proceedings and confront the same to the assessee to provide her a suitable opportunity; & 4) The beneficiaries to be confronted with the details submitted by the assessee and call for their confirmation and/or personal appearances and/or coordinate with their respective CITs/Assessing officers; Even though there was direction of the bench the revenue has not placed on record the report or the records of the investigation wing. Therefore, we believe that the assessee has already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income on the transactions facilitated by the appellant for the marble traders of Kishangarh. This aspect of the reasons recorded by the revenue has not been controverted. Therefore, considering the decision of the apex court in the case of Sun Engineering [ 198 ITR 97(SC)] while assessing the income of the assessee reasons recorded are to be considered. 14.3 The bench also noted that in the case of Prakash Chand Vijayvargiya and Shri Manoj Kumar Agarwal for A. Y. 2009-10 the assessment orders has been placed on record wherein the commission income is determined on the same set of facts and Shri Prakash Chand Vijayvargiya is the husband of the assessee. The bench also noted from the order of the ld. CIT(A) that the intention of assessing the commission income from the transactions facilitated by the assessee like persons is established from the fact that only commission income was taxed in case of Shri Prakash Chand Vijayvargiya and Shri Majorkumar Agarwal for A. Y. 2009-10 and that action of the AO was ratified by the PCIT (Central) in rejecting the reopening proposal submitted in March 2015. The relevant part of the remand report is reproduced in the order of the ld. CIT(A) at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acilitated by the appellant to estimating gross profit as marble trader. The ld. CIT(A) also noted that none of the corroborative factors that were inquired into through remand report proceeding support such imaginary action of the ld. AO. In the remand report the ld. AO admit that the assessee neither have any establishment nor infrastructure to conduct business of marble trading. The relevant part of the remand report is also persuaded and the relevant part is reproduced here in below : "7. In the first part of assessment order, assessees are termed as facility provider on the basis of their submission. They claimed that they were getting commission on the amount of deposits made by the customers of beneficiaries Kishangarh in their bank accounts and handed over amount after making withdrawal to the beneficiaries. In the later part of assessment order they were treated as marble traders as gross profit on turnover in their bank accounts was applied for the reasons that they have not made available details as discussed in the fore going para-6. Smt. Kusum Devi Vijayvargiya a) Assessee is not registered with sales tax department and not filed Sales tax return. b) Assessee i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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