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TMI Blog2020 (12) TMI 1399X X X X Extracts X X X X X X X X Extracts X X X X ..... t at a total income of Rs. 7,60, 81,463/- as against the returned income of Rs. 1,14, 400/- and the various findings & conclusions drawn are based on incorrect appreciation of facts on record and on non-existent facts, only on the basis of assumptions & hypothecations and the submissions of assessee have not been considered in right perspective thereof. 2. That the Id. CIT(A) grossly erred in confirming the protective addition of total bank credits amounting to Rs.7, 37,54, 430/- without even affirming the basic fact about the fate of the assessments of beneficiaries about the same despite a specific assertion to the same in A. order, beside Id. authority further erred in treating the addition as substantive without any new fact or mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Id. CIT(A) has erred in law by passing a non-speaking and cryptic order in total disregard of the material and facts on the record just relying upon the order of the GIT(A), Ghaziabad in the case of appellant for A.Y. 2011-12. Therefore, total addition of Rs. 7,59, 67,063/- is prayed to be deleted." 3. The moot issue involves assessment of cash deposits found in the bank account of the assessee of Rs.7.37 Crs. and commission earned at the rate of 3% on the said amount of Rs.7.37 Crs. to the tune of Rs.22.12 lacs. The assessee has been alleged to be an entry operator providing bills of purchase & sales without any actual business transactions. 4. The amount of Rs.7.37 Crs. has been added on protective basis and information regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of the Tribunal in the case of Sh. Sanjay Vs. ACIT made vide ITA No.162 to 168/Del/2010 order dated 30.04.2013 he submitted that the Tribunal while adjudicating the penalty appeal has mentioned that vide order dated 12.11.2008 the commission @ 0.5% on the value of bogus accommodation entries was added in the hands of the assessee. Referring to the decision of the Mumbai Bench of the Tribunal in the case of Ramesh Kumar Vs. ACIT vide ITA No.3512/Mum/2013 to 3513/Mum/2013 order dated 22.04.2015 he submitted that the Tribunal in the said decision has held that commission rate of 0.25% is reasonable. Referring to the decision of the Mumbai Bench of the Tribunal in the case of Gold Star Finvest Vs. DCIT vide ITA No.74/Mum/2015 order dated 29.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that there may be substantive assessment without any protective assessment, however, there cannot be any protective assessment without there being a substantive assessment. He also relied on the decision of the Mumbai Bench of the Tribunal in the case of MP Ramchandara Vs. DCIT reported in 32 SOT 592 and Suresh K. Jajoo Vs. ACIT reported in 39 SOT 514 and various other decisions and submitted that since no substantive addition has been made in the hand of any other person, therefore, there cannot be any protective addition in the hands of the assessee. 16. The Ld. DR on the other hand heavily relied on the order of the Ld. CIT(A) sofar as the addition of Rs.23,56,61,265/- is concerned she submitted that the assessee was unable to gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of commission varying from @ 0.15% to 0.5%. Considering the totality of the facts of the case we direct the AO to adopt the profit rate of 0.5% as commission on such accommodation entry of Rs.23,56,61,255/-. Accordingly the order of the CIT(A) is modified and the AO is directed to restrict the addition to Rs.11,78,306/- being commission @0.5% of Rs.23,56,61,265/- as against Rs.70,69,838/- adopted by him and upheld by the CIT(A). 18.1 Now, coming to the addition of Rs.23,56,61,265/- on protective basis we find from the order of the AO as well as the CIT(A) that there is no such addition on substantive basis in any other hand. The AO has made the addition on protective basis without making any addition on substantive basis in any other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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