ITO, New Delhi v. Sh. Ram Chander Garg, New Delhi

ITA 1918/DEL/2014 | 2004-2005
Pronouncement Date: 14-11-2017 | Result: Dismissed

Appeal Details

RSA Number 191820114 RSA 2014
Assessee PAN AEBPA4478F
Bench Delhi
Appeal Number ITA 1918/DEL/2014
Duration Of Justice 3 year(s) 7 month(s) 12 day(s)
Appellant ITO, New Delhi
Respondent Sh. Ram Chander Garg, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 14-11-2017
Appeal Filed By Department
Tags No record found
Order Result Dismissed
Bench Allotted F
Tribunal Order Date 14-11-2017
Date Of Final Hearing 23-05-2017
Next Hearing Date 23-05-2017
First Hearing Date 23-05-2017
Assessment Year 2004-2005
Appeal Filed On 02-04-2014
Judgment Text
INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F: NEW DELHI BEFORE SHRI AMIT SHUKLA JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI ACCOUNTANT MEMBER ITA NOS.: 590 591 592 593/DEL /2014 ASSTT. YEARS: 2004-05 2004-05 2005-0 6 2005-06 PRASHANT AGGARWAL 206 LAL JYOTI APARTMENT SECTOR-9 PLOT NO. 16 ROHINI NEW DELHI 110 086 PAN AEBPA4478F VS. ACIT CENTRAL CIRCLE-9 NEW DELHI. (APPELLANT) (RESPONDENT) ITA NOS.: 886 887 888 889/DEL /2014 ASSTT. YEARS: 2004-05 2004-05 2005-06 2005-06 ACIT CENTRAL CIRCLE-09 NEW DELHI. VS. PRASHANT AGGARWAL 206 LAL JYOTI APARTMENT SECTOR-9 PLOT NO. 16 ROHINI NEW DELHI 110 034 PAN AEBPA4478F (APPELLANT) (RESPONDENT) ITA NOS.: 594 595 /DEL /2014 ASSTT. YEARS: 2004- 05 2004-05 RAM CHANDER GARG C-65 1 ST FLOOR SANGAM APARTMENTS SECTOR-9 ROHINI NEW DELHI PAN AFDPG9137P VS. ACIT CENTRAL CIRCLE-9 NEW DELHI. (APPELLANT) (RESPONDENT) ITA NOS.: 590 591 592 593/DEL /2014 ITA NOS.: 886 887 888 889/DEL /2014 ITA NOS.: 594 595 /DEL /2014 ITA NOS.: 1917 1918 /DEL /2014 2 ITA NOS.: 1917 1918 /DEL /2014 ASSTT. YEARS: 2004-05 2004-05 ITO WARD-29(1) NEW DELHI. VS. RAM CHANDER GARG C-65 1 ST FLOOR SANGAM APARTMENTS SECTOR-9 ROHINI NEW DELHI PAN AFDPG9137P (APPELLANT) (RESPONDENT) O R D E R PER BENCH THE AFORESAID BUNCH OF CROSS APPEALS HAVE BEEN FIL ED BY THE ABOVE NAMED ASSESSEES AS WELL AS BY THE DEPARTMENT AGA INST SEPARATE IMPUGNED ORDER OF EVEN DATE 29.11.2013 FOR THE QUANTU M OF ASSESSMENT PASSED U/S 144 R.W.S. 147/148 FOR THE ASSE SSMENT YEARS 2004-05 AND 2005-06; AND SEPARATE APPEALS HAVE BEEN FILED IN RELATION TO THE PENALTY PROCEEDINGS U/S 271(1)(C) AG AINST ORDER DATED 29.11.2013 FOR THE ASSESSMENT YEARS 2004-05 AND 2005- 06. SINCE ISSUES INVOLVED IN ALL THE APPEALS ARE COMMON ARISI NG OUT OF IDENTICAL SET OF FACTS THEREFORE SAME WERE HEARD TOGETHER AND AR E BEING DISPOSED OF BY WAY OF THIS CONSOLIDATED ORDER. 2. AS A LEAD CASE WE ARE TAKING UP THE CROSS APPEA LS IN THE CASE OF PRASHANT AGGARWAL FOR THE ASSESSMENT YEAR 2004-05 BEING ITA NO. ASSESSEE BY: SHRI SANJEEV BAJAJ CA DEPARTMENT BY : SHRI ATIQ AHMOD SR.DR. DATE OF HEARING 08/11/2017 DATE OF PRONOUNCEMENT 14/11/2017 ITA NOS.: 590 591 592 593/DEL /2014 ITA NOS.: 886 887 888 889/DEL /2014 ITA NOS.: 594 595 /DEL /2014 ITA NOS.: 1917 1918 /DEL /2014 3 590/D/2014 AND 886/D/2014. IN ASSESSEES APPEAL FO LLOWING GROUNDS HAVE BEEN RAISED:- I. ON THE FACTS AND CIRCUMSTANCES OF THE CASE T HE LD. CIT(A) ERRED IN TREATING COMMISSION @ 0.20% ON CASH DEPOSITS OF RS. 5 56 85 000/- I.E. RS. 1 11 370/- AGAINST THE FACTS OF ITAT ORDER PASSED IN THE CASE OF SANJAY KUMAR GARG [2012] 13 4 ITD 0082 (DELHI) ON WHICH BASIS ASSESSMENT IS MADE. II. ON THE FACTS AND CIRCUMSTANCE OF THE LD. CIT (A) ERRED IN SUSTAINING COMMISSION OF RS. 6 03 153/- AGAINST THE FACTS OF I TAT ORDER PASSED IN THE CASE OF SANJAY KUMAR GARG [2012] 13 4 ITD 0082 (DELHI) ON WHICH BASIS ASSESSMENT IS MADE. 3. WHEREAS THE REVENUE IN ITS APPEAL HAS RAISED THE FOLLOWING GROUNDS:- I. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRE D IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 5 56 8 5 000/- ON ACCOUNT OF UNEXPLAINED INCOME FROM UNDISCLOSED SOUR CES. II. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 9 04 7 31/- ON ACCOUNT OF ACCOMMODATION CHARGES. 4. THE BRIEF FACTS QUA THE ISSUE RAISED IN BOTH THE APPEALS ARE THAT ASSESSEE IS AN INDIVIDUAL AND IS PROPRIETOR OF M/S. GRS & CO. THE NATURE OF BUSINESS SHOWN AS PER THE AUDIT REPORT IS TRADING AND COMMISSION AGENT OF FOOD GRAINS AND HAS SHOWN INCOME FROM ARHAT AND INTEREST FROM BANK. THE NET PROFIT SHOWN IN THE RETU RN OF INCOME FILED ON 1.11.2004 FROM THE BUSINESS WAS RS. 75 727/ -. A SURVEY ACTION U/S 133A WAS CONDUCTED ON 12.7.2004 IN THE CA SE OF SHRI ITA NOS.: 590 591 592 593/DEL /2014 ITA NOS.: 886 887 888 889/DEL /2014 ITA NOS.: 594 595 /DEL /2014 ITA NOS.: 1917 1918 /DEL /2014 4 SANJAY KUMAR GARG WHEREIN IT WAS FOUND BY THE INVEST IGATION WING OF THE DEPARTMENT THAT SHRI SANJAY KUMAR GARG THROUGH HIS VARIOUS DUMMY ENTITIES AND INDIVIDUALS WAS CARRYING OUT ACCOM MODATION ENTRY ACTIVITIES TO VARIOUS FOOD GRAIN MERCHANT ON MASS SCALE. THE MODUS-OPERANDI WHICH WAS UNEARTHED WAS THAT CASH WAS RECEIVED FROM FOOD GRAIN MERCHANT WHICH WAS DEPOSITED IN THE BA NK ACCOUNTS OF HIS BOGUS CONCERNS AND DUBIOUS INDIVIDUALS AGAIN ST WHICH CHEQUES/ PAY ORDERS/ DEMAND DRAFTS WERE ISSUED IN F AVOUR OF SUCH BENEFICIARIES. THE ASSESSEES PROPRIETORSHIP CONCER N M/S GRS & CO. WAS PART OF SUCH DUBIOUS ENTITIES PERTAINING TO SHRI SA NJAY KUMAR GARG. THE NAME OF SUCH ENTITIES USED BY SHRI SANJAY K UMAR GARG FOR HIS ACCOMMODATION ENTRY ACTIVITIES WERE AS UNDER:- * PERSONS/ ENTITIES IMPUGNED HEREIN THESE AP PEALS. SR. NO. NAME OF FICTITIOUS CONCERN PROPRIETOR RELATION WITH SHRI SANJAY GARG 1. SURAJ ENTERPRISES VISHNU GOEL BROTHER - IN - LAW 2. PARDEEP KUMAR VIKAS KUMAR PRADEEP KUMAR BROTHER - IN - LAW 3 BABA KISHORE ENTERPRISES PREM PRAKASH GARG FRIEND 4. *YASH ENTERPRISES R.C. GARG FATHER 5. SHIV SHAKTI HARISH KUMAR FRIEND 6. *GRS & CO. PRASHANT AGGARWAL FRIEND 7. RAHUL ENTERPRISES SANJAY KUMAR SELF 8. RISHABH & CO. AMIT JAIN FRIEND ITA NOS.: 590 591 592 593/DEL /2014 ITA NOS.: 886 887 888 889/DEL /2014 ITA NOS.: 594 595 /DEL /2014 ITA NOS.: 1917 1918 /DEL /2014 5 5. IN HIS STATEMENT RECORDED DURING THE COURSE OF SUR VEY SHRI SANJAY KUMAR GARG ADMITTED THAT NO GENUINE TRANSACTIONS O F TRADING OR ACTUAL PURCHASE AND SALES WERE CARRIED OUT THROUGH THESE ENTITIES AND HE WAS ISSUING BILLS AFTER GETTING COMMISSION @ 25 PAISE PER RS. 100 AND OUT OF THIS COMMISSION OF 10 PAISE WERE GI VEN TO THOSE PERSONS IN WHOSE NAMES THESE ACCOUNTS WERE OPERATED A ND APPROXIMATELY 5 PAISE WAS SPENT ON OTHER EXPENSES. IN THE CASE OF THE ASSESSE IT WAS FOUND THAT HIS PROPRIETORSHIP CONCERN M/S. GRS & CO. HAVING BANK ACCOUNT WITH STATE BANK OF BIKANER & JAIPU R AT KHARI BAOLI NEW DELHI WHEREIN THE CASH TO THE TUNE OF RS. 5 56 85 000/- WAS DEPOSITED DURING THE FINANCIAL YEAR 2003-04. THE DETAILS OF WHICH ARE APPEARING AT PAGES 8 TO 10 OF THE ASSESSMENT ORDER. THE LD. A.O. HAS ADDED THE ENTIRE DEPOSITS OF RS. 5 56 85 000/- ON PROTECTIVE BASIS IN THE HANDS OF THE ASSESSEE AND HELD THAT SAME SHAL L BE ADDED ON SUBSTANTIVE BASIS IN THE HANDS OF SHRI SANJ AY KUMAR GARG. THE RELEVANT OBSERVATION AND CONCLUSION OF THE AO IS AS UNDER :- 7. IN VIEW OF THE INFORMATION IN TH E POSSESSION OF THE DEPARTMENT IN THE FORM OF STATEMENT OF M/S. SANJAY KUMAR GARG RECORDED AT THE TIME OF SURVEY U/S 133A IN HIS CASE AS ELABORATELY DISCUSSED ABOVE AND FOLLOWED BY THE LOCAL ENQUIRIES MADE THE CASH DEPOSITS TOTALLING RS. 5 56 85 000/- DURING F.Y. 2003-04 PERTAINING TO ASSTT. YEAR 2004- 05 UNDER CONSIDERATION IS TREATED AS UNEXPLAINED IN COME. THE ASSESSEE HAS FAILED TO ADDUCE ANY EVIDENCE REGARDING THE NAT URE & SOURCE OF CASH ENTRIES TOTALLING RS. 5 56 85 0000/- IN HIS BA NK ACCOUNT AD DETAILED IN QUESTION NO. 18. AS SUCH THESE ARE LIAB LE TO BE TREATED AS HIS UNEXPLAINED INCOME FROM UNDISCLOSED SOURCES. HO WEVER IN VIEW OF THE FACT THAT SHRI SANJAY KUMAR GARG BEING THE ACT UAL ACCOUNT OPERATOR IN THE BACK GROUND THIS INCOME SHALL BE CONSIDERED IN HIS HANDS ON SUBSTANTIVE BASIS AND ON PROTECTIVE BASIS IN THE HA NDS OF THE ASSESSEE. ITA NOS.: 590 591 592 593/DEL /2014 ITA NOS.: 886 887 888 889/DEL /2014 ITA NOS.: 594 595 /DEL /2014 ITA NOS.: 1917 1918 /DEL /2014 6 AS ASSESSEE HAS FAILED TO DISCLOSE THIS INCOME OF R S. 5 56 85 0000/- FOR TAXATION THE SAME IS TREATED AS UN EXPLAINED INCOM E AND AS SUCH THERE IS SUFFICIENT REASON TO BELIEVE THAT ASSESSEE HAS C ONCEALED PARTICULARS OF THIS INCOME THEREBY ATTRACTING TO PENALTY PROVISIO NS U/S 271(1)(C) OF I.T. ACT 1961 WHICH IS BEING INITIATED. (ADDITION : RS. 5 56 85 000/-) 6. APART FROM THAT A.O. HAS FURTHER ADDED AMOUNT OF RS. 15 07 884/- AS A COMMISSION FOR PROVIDING ACCOMMODA TION ENTRIES @0.5 % OF THE TOTAL TURNOVER AS PER THE SALES TAX DEPARTME NT WHICH WAS RS. 30 15 26 891/-. 7. LD. CIT (APPEALS) HELD THAT IN THE CASE OF SHRI S ANJAY KUMAR GARG WHEREIN SUBSTANTIVE ADDITION WAS MADE THE TRIB UNAL VIDE ORDER DATED 28.1.2010 HAS HELD THAT FOR THE ENTIRE ACCOMMODATIO N ENTRY BUSINESS CARRIED OUT BY SHRI SANJAY KUMAR GARG A CO MMISSION RATE OF 0.20% HAS BEEN APPLIED AND THEREFORE ON SAME LINE I N THE CASE OF THE ASSESSEE ALSO SIMILAR RATE OF 0.20% SHOULD BE APPLI ED ON THE TOTAL DEPOSITS OF RS. 5 56 85 000/- AND THEREUPON WORKED OUT THE INCOME OF THE ASSESSEE AT RS. 1 11 370/-. THE RELEVANT OBSERVATIO N AND FINDING OF THE LD. CIT (A) READS AS UNDER:- 7. I HAVE CONSIDERED THE MATERIAL ON RECORD WRITT EN SUBMISSIONS CIT(A) ORDER DATED 18.6.2009 IN THE CA SE OF SHRI SANJAY KUMAR GARG HONBLE ITAT ORDER DATED 28.1.2 010 IN THE CASE OF SHRI SANJAY KUMAR GARG. WITH REGARD THE ADD ITION OF RS. 5 56 85 000/- MADE BY THE ASSESSING OFFICER IN THE HANDS OF THE APPELLANT I FIND THAT A SIMILAR ADDITION WAS MADE IN THE HANDS OF SHRI SANJAY KUMAR GARG ON SUBSTANTIVE BASIS IN WHO SE CASE THE HONBLE ITAT DELHI BENCH H NEW DELHI BY A CONSOLI DATED ORDER ITA NOS.: 590 591 592 593/DEL /2014 ITA NOS.: 886 887 888 889/DEL /2014 ITA NOS.: 594 595 /DEL /2014 ITA NOS.: 1917 1918 /DEL /2014 7 DATED 28.1.2010 IN ITAT NO. 1501 1502 3531 TO 353 4/DEL/2009 HAD AN OCCASION TO ADJUDICATE UPON THIS ISSUE FOR T HE ASSESSMENT YEAR 2005-06 AND IN THIS ORDER IT WAS HELD AS UNDER :- WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH TH E MATERIAL AVAILABLE ON RECORD. DURING THE COURSE OF SURVEY OPERATIONS STATEMENT OF THE ASSESSEE WAS RECORDED WHEREIN IT HAS BEEN CATEGORICALLY ADMITTED THAT NO PURCHASE AND SALE ACTIVITIES ARE UNDERTAKEN IN THE NAMES OF FIRMS. TH E ASSESSEE WAS USING THE FIRMS FOR THE PURPOSE OF PRO VIDING SALE BILLS FOR WHICH HE WAS COLLECTING COMMISSION. THE ASSESSEE WAS DEPOSITING CASH IN THE BANK ACCOUNTS O F THE DUMMY FIRMS AS WELL AS HIS OWN FIRMS THROUGH WHICH HE WAS CARRYING OUT ACCOMMODATION ENTRY BUSINESS. AT T HE TIME OF SURVEY NO EVIDENCE WAS FOUND TO SUGGEST THAT THE ASSESSEE WAS ENGAGED IN REAL COMMISSION BUSINESS. N O OTHER SOURCE OF INCOME WAS ALSO FOUND. IT IS ALSO T HE CASE OF ASSESSING OFFICER THAT THE ASSESSEE WAS CARRYING ON BUSINESS OF ENTRY PROVIDER. THE ASSESSMENTS WERE RE OPENED FOR THIS PURPOSE ONLY. THE LD. CIT(A) HAS GIVEN A F INDING OF FACT THAT THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF PROVIDING ACCOMMODATION ENTRIES AND THEREFORE THE AMOUNTS DEPOSITED IN THE ACCOUNT OF DUMMY CONCERNS WAS TO BE TREATED AS TOTAL RECEIPTS ON WHICH COMMISSION WAS TO BE DETERMINED. THEREFORE WE ARE IN AGREEMENT WITH THE VIEW OF THE LD. CIT COMMISSION WAS TO BE DETERMINED. THE REFORE WE ARE IN AGREEMENT WITH THE VIEW OF THE LD. CIT (A ) THAT ONLY COMMISSION CAN BE DETERMINED ON THE DEPOSITS M ADE IN THE BANK ACCOUNTS OF THE DUMMY CONCERNS. THEREFORE WE DO ITA NOS.: 590 591 592 593/DEL /2014 ITA NOS.: 886 887 888 889/DEL /2014 ITA NOS.: 594 595 /DEL /2014 ITA NOS.: 1917 1918 /DEL /2014 8 NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY THE L D. CIT (A) THAT THE AMOUNT DEPOSITED IN THE ACCOUNT OF DUMMY CONCERNS CANNOT BE TREATED AS INCOME OF THE ASSESSE E. THEREFORE THE LD. CIT (A) IN OUR CONSIDERED OPINI ON IS JUSTIFIED IN TREATING THE CASH DEPOSITED IN VARIOUS BANK ACCOUNTS CONTROLLED AND OPERATED BY THE ASSESSEE AS THE TURNOVER OF THE ACCOMMODATION ENTRY BUSINESS AND COMMISSION INCOME HAS TO BE ESTIMATED THEREON. RESPECTFULLY FOLLOWING THE HONBLE ITAT ORDER I HO LD THAT ONLY COMMISSION CAN BE DETERMINED ON THE DEPOSITS MADE I N THE BANK ACCOUNTS OF THE APPELLANT. THERE IS NO DISPUTE THAT NO COMMISSION WOULD BE CHARGED ON SUCH DEALINGS AS THE APPELLANT WOULD NOT HAVE DONE IT FREE OR ON CHARITY BASIS WITHOUT DERIV ING ANY BENEFIT FOR PROVIDING BOGUS ENTRY. THERE IS NO CLEAR STANDA RD RATE OF COMMISSION ON SUCH ACTIVITIES. SINCE THE HONBLE IT AT AFTER A DETAILED DISCUSSION HAS DIRECTED IN THE CASE OF SA NJAY KUMAR GARG TO APPLY A COMMISSION RATE OF 0.2% THE ASSESS ING OFFICER IS DIRECTED TO APPLY A SIMILAR RATE OF 0.2% IN THE CAS E OF THE APPELLANT ALSO ON THE DEPOSITS OF RS. 5 56 85 000/- WHICH WIL L WORK OUT TO RS. 1 11 370/-. THE APPELLANT WILL GET A RELIEF OF RS. 5 55 73 630/- (RS. 5 56 85 000/- - RS. 1 11 370/-). 8. WITH REGARD TO ADDITION OF RS. 15 07 884/- BY WAY OF COMMISSION ON ACCOMMODATION ENTRY @ 0.5% ON THE TURNOV ER SHOWN BY THE ASSESSEE LD. CIT(A) HELD THAT SAME IS TO BE A PPLIED AT SAME RATE OF 0.20% ON SUCH TURNOVER AND THEREBY REDUCING THE ADDITION TO RS. 6 03 153/- AND GAVE RELIEF OF RS. 9 04 731/-. ITA NOS.: 590 591 592 593/DEL /2014 ITA NOS.: 886 887 888 889/DEL /2014 ITA NOS.: 594 595 /DEL /2014 ITA NOS.: 1917 1918 /DEL /2014 9 AGAINST THE AFORESAID FINDING OF THE LD. CIT (A) BOTH THE PARTIES ARE IN APPEAL BEFORE US. 9. WE HAVE HEARD BOTH THE PARTIES AT LENGTH AND AL SO PERUSED THE RELEVANT FINDING GIVEN IN THE IMPUGNED ORDER AS WELL AS THE MATERIAL REFERRED TO BEFORE US. THE REVENUE HAS CHALLENGED TH E DELETION OF ADDITION OF ENTIRE CASH DEPOSITS MADE IN THE BANK ACCOU NT OF RS. 5 56 85 000/- AND ALSO THE PART DELETION OF THE ADDITIO N OF THE COMMISSION BY THE LD. CIT(A); WHEREAS THE ASSESSEE H AS CHALLENGED THE APPLYING OF COMMISSION RATE OF 0.20% ON THE ENTIRE CASH DEPOSIT BY FOLLOWING THE ORDER OF THE TRIBUNAL IN THE CASE OF SH RI SANJAY KUMAR GARG NOW REPORTED IN (2012) 134 ITD 82 AND CONFIRM ING THE PART OF COMMISSION ON DISCLOSED TURNOVER. HERE IN THIS CASE AS STATED ABOVE THE ADDITION HAS BEEN MADE BY THE AO ON THE PROTECTIVE BA SIS ON THE GROUND THAT ENTIRE DEPOSITS SHOULD BE ADDED IN THE HA NDS OF SHRI SANJAY KUMAR GARG. WE FIND THAT THE TRIBUNAL IN THE C ASE OF SHRI SANJAY KUMAR GARG HAD APPLIED 0.20% ON TOTAL DEPOSIT S APPEARING IN ALL THE BANK ACCOUNTS OF ALL THE BOGUS ENTITIES INCLUDI NG THAT OF THE ASSESSEE ALSO. ONCE IN THE CASE OF SHRI SANJAY KUMAR GARG WHERE SUBSTANTIVE ADDITION WAS MADE BY ESTIMATING THE COMMISS ION INCOME FROM THE ACCOMMODATION ENTRY @ 0.20% THEN THERE IS NO B ASIS FOR SUSTAINING THE PROTECTIVE ADDITION OF ENTIRE CASH DEPOSITS OF RS. 5 56 85 000/- IN THE HANDS OF THE ASSESSEE. THEREFOR E FOLLOWING THE TRIBUNAL ORDER WE DO NOT FIND ANY MERIT IN THE GROUND NO. 1 RAISED BY THE REVENUE AND THE SAME IS DISMISSED. 10. SO FAR AS THE ISSUE RELATING TO APPLICABILI TY OF 0.20% AS CONTESTED BY THE ASSESSEE THE LD. COUNSEL FOR THE ASSE SSEE CONTENDED THAT IF THE ENTIRE DEPOSITS HAVE BEEN CONSIDERED BY THE D EPARTMENT IN ITA NOS.: 590 591 592 593/DEL /2014 ITA NOS.: 886 887 888 889/DEL /2014 ITA NOS.: 594 595 /DEL /2014 ITA NOS.: 1917 1918 /DEL /2014 10 THE HANDS OF SHRI SANJAY KUMAR GANG WHEREIN FOR THE ENTIRE DEPOSITS INCOME @ 0.20% S COMMISSION HAS BEEN APPLIED THEN N O SEPARATE ADDITION SHOULD BE MADE IN THE HANDS OF THE ASSESSEE. HOWEVER WE ARE UNABLE TO APPRECIATE SUCH CONTENTION BECAUSE THE ASSES SEE WAS PROVIDED THE ACCOMMODATION ENTRY THROUGH HIS BANK ACCOU NT FOR WHICH HE WAS ALSO GETTING CERTAIN COMMISSION FROM SHRI SANJAY KUMAR GARG AND SINCE RATE OF COMMISSION FOR ACCOMMODATIO N ENTRY HAS BEEN DETERMINED AND ESTIMATED @ 0.20% IN THE CASE OF SHRI S ANJAY KUMAR GARG THEN SAME RATE OF COMMISSION WILL BE APPLIED I N THE CASE OF THE ASSESSEE ALSO AND THEREFORE WE DO NOT FIND ANY INFIRM ITY IN THE ORDER OF THE LD. CIT(A) WHILE CONFIRMING THE RATE OF COMMISSIO N OF 0.20% ON THE TOTAL DEPOSITS AND ACCORDINGLY GROUND NO.1 AS RAISED B Y THE ASSESSEE IS DISMISSED. 11. SO FAR AS THE SEPARATE ADDITION ON ACCOUNT OF COMMISSION OF RS. 15 07 884/- WHICH HAS BEEN PARTLY ALLOWED BY THE LD. CIT(A) WE DO NOT FIND ANY REASON TO SUSTAIN THE FURTHER COMMISSIO N INCOME BECAUSE ONCE WE HAVE HELD THAT ASSESSEES COMMISSION ON THE ENTIRE CASH DEPOSITS WHICH IS PART OF TOTAL TURNOVER IS TO BE TA KEN @ 0.20% THEN THERE IS NO REQUIREMENT FOR MAKING SEPARATE ADDITI ON AGAIN ON COMMISSION FOR GIVING ACCOMMODATION ENTRY. ACCORDING LY WE DELETE THE ENTIRE ADDITION OF COMMISSION OF RS. 15 07 884/-. HENCE GROUND NO 3 OF THE ASSESSEE IS TREATED AS ALLOWED WHEREAS GROUND NO. 2 OF THE REVENUE IS DISMISSED. 12. EXACTLY SAME ADDITIONS HAVE BEEN MADE IN THE AS SESSMENT YEAR 2005-06 ALSO AND SIMILAR GROUNDS HAVE BEEN RAISED I N THE CROSS APPEALS BY BOTH THE PARTIES THEREFORE OUR FINDING GI VEN ABOVE WILL APPLY MUTATIS-MUTANDIS FOR THE CROSS APPEALS FILED BY THE ASSESSEE AS ITA NOS.: 590 591 592 593/DEL /2014 ITA NOS.: 886 887 888 889/DEL /2014 ITA NOS.: 594 595 /DEL /2014 ITA NOS.: 1917 1918 /DEL /2014 11 WELL AS BY THE REVENUE FOR THE ASSESSMENT YEAR 2005-06 ALSO. THEREFORE AS A CONSEQUENCE GROUND NO.1 OF THE ASSESS EE IS DISMISSED AND GROUND NO.2 IS ALLOWED; WHEREAS IN THE REVENUE S APPEAL BOTH THE GROUNDS ARE DISMISSED. 13. LIKEWISE IN THE CASE OF SHRI RAM CHANDER GARG BOTH THE REVENUE AS WELL AS THE ASSESSEE HAS CHALLENGED THE SI MILAR ADDITION WHEREBY THE CASH DEPOSIT OF RS. 60 94 327/- WAS ADDED BY THE A.O. AND LD. CIT(A) HAD APPLIED COMMISSION RATE OF 0.2%. SHRI RAM CHANDER GARG WAS ALSO PART OF THE SAME ENTITY OF SHRI SANJAY KUMAR GARG AND THEREFORE THE LD. CIT (A) FOLLOWING THE SAM E ORDER OF SHRI SANJAY KUMAR GARG HAS APPLIED COMMISSION INCOME 0.2 0% IN THE HANDS OF THIS ASSESSEE ALSO. SIMILARLY THE A.O. HA S ADDED SEPARATE COMMISSION INCOME OF RS. 17 95 882/- ON SIMILAR FOO TING. ACCORDINGLY IN VIEW OF OUR FINDING GIVEN IN THE CASE OF SHRI P RASHANT AGGARWAL WE UPHOLD THE ADDITION TO THE EXTENT OF COMMISSION OF 0.20 % ON THE CASH DEPOSITS AND DELETE THE ADDITION ON ACCOUNT OF COMMISS ION OF RS. 17 95 882/- AND ALSO THE PROTECTIVE ADDITION OF ENTIRE CASH DEPOSITS MADE BY THE A.O. THUS THE APPEAL OF THE REVENUE IS D ISMISSED WHEREAS THE APPEAL OF THE ASSESSEE IS ALLOWED. 14. THERE ARE CROSS SEPARATE APPEALS FILED BY THE REVENUE AS WELL AS BY THE ASSESSEE FOR THE LEVY OF PENALTY U/S 271(1 )(C); BOTH IN THE CASES OF SHRI PRASHANT AGGARWAL AND SHRI RAM CHANDER GARG. THE LD. CIT(A) HAS DIRECTED THE A.O. TO LEVY THE PENALTY OF 0. 20% SUSTAINED BY HIM AGAINST WHICH ASSESSEE IS IN APPEAL; WHEREAS THE REVENUE HAS CHALLENGED THE ORDER OF LD. CIT(A) ON THE LEVY OF PEN ALTY ON THE ENTIRE CASH DEPOSITS MADE ON PROTECTIVE BASIS AND PART OF THE COMMISSION DELETED BY THE LD. CIT(A). ITA NOS.: 590 591 592 593/DEL /2014 ITA NOS.: 886 887 888 889/DEL /2014 ITA NOS.: 594 595 /DEL /2014 ITA NOS.: 1917 1918 /DEL /2014 12 15. SO FAR AS THE REVENUES APPEAL IS CONCERNE D SAME IN VIEW OF OUR FINDING GIVEN ABOVE ARE TO BE DISMISSED AS NO P ENALTY U/S 271(1)(C) IS LEVIABLE BECAUSE IN THE QUANTUM PROCE EDINGS WE HAVE DIRECTED THAT THE ADDITION OF CASH DEPOSITS ON PROTECTIVE BASIS CANNOT BE ADDED AND ONLY ADDITION SUSTAINED IS WITH REGARD TO 0.20% BY WAY OF COMMISSION ON SUCH CASH DEPOSITS IN THE HANDS OF THE BOTH ASSESSEES. ACCORDINGLY THE REVENUES APPEALS ARE DI SMISSED. 16. NOW SO FAR AS THE LEVY OF PENALTY ON THE ADD ITION SUSTAINED BY US ON ACCOUNT OF COMMISSION INCOME ESTIMATED @ 0.20% WE HOLD THAT NO PENALTY U/S 271(1)(C) IS LEVIABLE FOR THE REASON THAT ADMITTEDLY THE ENTIRE DEPOSITS HAVE BEEN CONSIDERED IN THE HANDS OF S HRI SANJAY KUMAR GARG AND 0.20% HAS BEEN APPLIED IN HIS CASE O N THE DEPOSITS WHICH ALSO INCLUDES THE DEPOSITS IN THE CASE OF THESE T WO ASSESSEES ALSO. ADDITION HAS BEEN SUSTAINED BY US ON THE GROUND THAT THESE ASSESSEES WERE PAID SOME COMMISSION BY SHRI SANJAY KUMAR GARG AND SUCH COMMISSION TOO SHOULD BE ESTIMATED @ 0.20%. UNDER THESE FACTS AND CIRCUMSTANCES WHERE ADDITION HAS BEEN MADE PURELY ON ESTIMATE BASIS AND THERE IS NO MATERIAL TO IMPINGE UPON ASSESSEES DIRECTLY WHO MERELY WERE ACTING AS FACILITATOR TO SHRI SANJAY GARG THERE COULD NOT BE CASE FOR EITHER CONCEALMENT OF INCOM E OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. OTHERWISE ALSO H ERE IN THE CASES OF THE ASSESSEES EVEN AFTER THE ADDITION OF 0.20% IS MADE INCOME WILL FALL BELOW THE TAX LIMIT ON WHICH NO TAX IS TO BE COM PUTED. ON THIS GROUND ALSO WE HOLD THAT NO PENALTY IS LEVIABLE. ITA NOS.: 590 591 592 593/DEL /2014 ITA NOS.: 886 887 888 889/DEL /2014 ITA NOS.: 594 595 /DEL /2014 ITA NOS.: 1917 1918 /DEL /2014 13 17. IN THE RESULT PENALTY LEVIED BY THE A.O. IS DELE TED AND ACCORDINGLY THE APPEALS OF THE REVENUE ARE DISMISSED AND APPEALS OF THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH NOVEMBER 2017. SD/- SD/- (PRASHANT MAHARISHI) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDI CIAL MEMBER DATED: 14/11/2017 VEENA COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT NEW DELHI