9911796707
TMI Blog2025 (3) TMI 811X X X X Extracts X X X X X X X X Extracts X X X X ..... d orders were emanated from the order of the Ld. Income-tax Officer 20(2)(1), Mumbai (in short, 'the A.O.') passed under section 143(3)read with section 147 of the Act for A.Y. 2012-13 order passed on 28/12/2019and for A.Y. 2013-14 order passed on 31/03/2022 under section 147 r.w.s. 144B of the Act by the National Faceless Assessment Centre, Delhi. 2. Both the appeals have same nature of facts and have common issue. Therefore, both the appeals were heard together and are disposed of by this common order. ITA No. 584/Mum/2025 is taken as lead case. 2. The assessee has taken the following grounds of appeal:- ITA 584/Mum/2025 (AY 2012-13) "1. The Learned AD and CIT (A) grossly erred in making addition of Rs. 1,63,64,358 being 3 percentage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so not considering loss of AY 2011-12 of Rs. 1,73,70,096." 3. The brief facts of the case are that the assessee's case was reopened under section 147 of the Act by issuing the notice under section 148 of the Act related to the transactions of penny stock share during impugned assessment year. The assessee had entered these share transactions belonging to the company, "Nivyah Infra & Tel. Service Ltd" amount to Rs. 34,37,500/- and on verification of the same it was found that the assessee had entered transactions of purchase and sale of penny stock scrip such as Gemstone International and Nivyah Infrastructure for an amount of Rs. 2,13,93,693/-. The assessment was completed, and assessee accepted that assessee acted as an exit provider and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njustified. In support of his contention, the Ld. AR relied on the decision of the co-ordinate bench of the ITAT, Mumbai, in the case of M/s Mihir Agencies P. Ltd. vs. ACIT, OSD-1, Mumbai, ITA No. 2692/Mum/2013, pronounced on 02/11/2017, wherein the bench took the view that the commission should be restricted to 0.15%. In the present case, the Ld. AO rejected the assessee's books of account and estimated the commission rate at 2%, which the bench has previously restricted to 0.15%. The Ld. AR further relied on the consistent view taken by the co-ordinate benches of ITAT, including: ITAT, Mumbai Bench "B" in Mr. Mukesh Chokshi vs. DCIT, Circle 46, Mumbai, ITA Nos. 833 to 839/Mum/2013, pronounced on 04/05/2016; and ITAT, Mumbai Bench "G" in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n favor of the assessee. Thus, the decision rendered in ITA 584/Mum/2025 shall be applied mutatis mutandis and followed accordingly. However, regarding the total turnover for A.Y. 2013-14, the Ld. AR has pointed out that an amount of Rs. 63,49,611/- does not pertain to penny stock transactions, and hence, the commission as an exit provider would not be applicable to this portion of the transaction. Accordingly, we remit the matter to the file of the Ld. AO for verification of these transactions as claimed by the assessee. The Ld. AO is directed to allow the benefit of exclusion for transactions not related to penny stocks, after conducting proper verification. 8. Accordingly, both the appeals of the assessee in ITA No.584 & 609/Mum/2025 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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