Income Tax Act, 1961, Section
69A
Income from undisclosed sources--Addition under section 69A--Assessee being entry provider allowed
her bank accounts to be used by other persons in lieu of commission
Conclusion: Since in subsequent assessment year under similar facts, commission @0.5% of
total deposits was added to income of assessee on the ground that assessee was
an entry provider and allowed her bank accounts to be used by other persons in
lieu of commission at 0.5% of deposits, CIT (A) was justified in directing AO
to charge commission @0.5% of total deposits on the same reasoning in current
year as well.
AO made addition on account of undisclosed income. CIT (A)
on the basis of assessment of subsequent assessment year, directed the AO to
charge commission @0.5% of total deposits. Revenue contended that CIT (A) was
not justified in giving the said direction by ignoring the fact that principal
of res-judicata does not apply to income tax proceedings. Held: CIT
(A) observed that in subsequent assessment year under similar facts, commission
@0.5% of total deposits was added to income of assessee on the ground that
assessee was an entry provider and allowed her bank accounts to be used by
other persons in lieu of commission at 0.5% of deposits. Having observed so,
CIT (A) applied rate @0.5% on total deposits on the same reasoning in current
year as well, which was justified and in consistence with facts of the case.
Decision: In
assessee's favour
IN THE ITAT KOLKATA BENCH
RAJPAL YADAV, V.P. & RAJESH KUMAR, A.M.
ITO v. Sunita Sharma
I.T.A. No. 1324/Kol/2019
5 April, 2024
Appellant by: None
Respondent by: S Dutta,
CIT-DR
Rajesh Kumar, A.M.
This is an appeal preferred by the revenue against the
order of the learned Commissioner of Income Tax (Appeals)-11, Kolkata
(hereinafter referred to as the learned Commissioner (Appeals) ) dated
28-3-2019 for the assessment year 2010-11.
2. At the time of hearing,
the learned Commissioner-Departmental Representative informed the Bench that as
desired by the Bench the assessing officer tried to serve the notice of hearing
upon the Smt. Sunita Sharma, w/o legal heir of Shri Shyam Sunder Sharma however
all the efforts failed to serve the notice on the legal heir of assessee and
finally the notice was served by affixture and placed report as sent by ITO,
Ward-37(4), Kolkata. The ITO, Ward-37(1), Kolkata stated in the report that the
notice was sent to serve the notice however he returned bank when legal heir
was failed to accept the notice. It was also mentioned in the report that
inspectors report to ITO was also served the notice on Shri Sunita Sharma
situated at 4th Floor, Munipara, Manicktala, Kolkata. It was under lock and key
and there is no reasons from deciding despite several knocking and finally the
notice was served by affixture on 25-10-2014. The learned
Commissioner-Departmental Representative therefore prayed that the case may be
proceeded ex-parte on the basis of facts available on record.
3. After perusing the facts
on record and the report of ITO, Ward-37(4), Kolkata, we observe that the
assessee is not interested in pursuing the appeal filed against it by the
Department as all the attempts to serve the notice on the assessee have proved
futile and in vain. Therefore we are disposing the appeal with the assistance
of learned Commissioner-Departmental Representative after going through the
orders passed by the authorities below.
4. The only issue raised by
the revenue in the various grounds of appeal is against the order of learned
Commissioner (Appeals) directing the assessing officer to charge commission @
0.5% of the total deposits on the basis of next year assessment by ignoring the
fact that the principal of res-judicata does not apply to the income tax
proceedings.
5. With the assistance of
learned Commissioner-Departmental Representative, we have perused the facts
before us and observe that the assessing officer has made addition of Rs.
1,33,22,17,440 as undisclosed income of the assessee in the assessment framed
under section 143(3)/147 of the Act on 27-12-2017.
6. In the appellate
proceedings, the learned Commissioner (Appeals) partly allowed the appeal of
the assessee by observing and holding as under:
The learned Authorised
Representative stated that in the subsequent assessment year, while assessing
the appellant's income on the same facts, the learned assessing officer had
accepted that the appellant was an accommodation entry provider and he assessed
the appellant's income at Rs. 0.50% of the total deposits treating the said
amount as commission earned by him. He furnished a copy of the assessment order
passed by the learned assessing officer, i.e. ITO, Ward-37(4), Kolkata for the
assessment year 2011-12 on 27-12-2018 under section 147/143(3) of the Act. It
is observed from the said assessment order for the assessment year 2011-12 that
the appellant had explained before him that he had allowed his bank account to
be utilized by certain persons in lieu of commission of 0.25%. The assessing
officer observed as under:
"The submission of the
assessee is perused. Notice under section 133(6) was issued to M/s DCB Bank
Ltd. for verification of bank account of the assessee. In response to notice
under section 133(6), DCB Bank Ltd. furnished the copy of bank statement of the
assessee for the period 1-4-2010 to 31-3-2011. Perusal of bank statement of the
assessee reveals that the assessee has not only received unaccounted money from
M/s. Kusum Fashions but from other parties as well which are subsequently
transferred to different parties. The total amount of deposit in the bank
account of the assessee amounts to Rs. 91,12,79,888 and the total withdrawals
amount to Rs. 91,03,07,312. Further, from the return of income of the
assessee's own submission, it can easily be inferred that the assessee has
taken the deposits/transaction in his bank account in lieu of commission only.
The assessee himself has offered that the commission may be taken @ 0.23% of
the deposits.
However, in case of similar nature
in charge of ITO, Wd 13(1), Kolkata in the case of Ms. Anubhav Infrastructure
Ltd., the commission is assessed at 0.3%. Taking a similar view, the commission
is assessed (a) 0.3% on total deposits in the account of the assessee i.e. Rs.
91,12,79,888. Therefore, the commission received is assessed at Rs. 45,56,399.
It is also seen from the return of income that the assessee has shown Rs.
1,32,240 as income from other sources. Therefore, the difference amount of Rs.
44,04,199 is treated as undisclosed income of the assessee in form of
commission income and added to the total income of the assessee. Penalty
proceedings under section 271(1)(c) initiated separately for concealment y of
income."
10. The assessment order referred
to you in the previous paragraphs makes it amply dear that the issue of the
appellant being an entry provider working for a Commission in lieu of the
deposits made in his bank accounts by certain unscrupulous persons has been
looked into by the assessing officer. Since the facts of the case for the
assessment year 2010-11 and 2011-12, therefore, there should be uniformity in
the approach of the assessing officer. In any case adding back the entire
amount of deposits to the taxable income of the opulent is an incorrect way
approaching the situation. When there are frequent deposit and withdrawal rules
in a bank in which has been held to be not genuine, the courts have help that
taking the peak credits should be the best way. However, is the appellant has
stated that he has worked as an accommodation entry provider and since this
fact has been looked into and accepted by the assessing officer in the
subsequent assessment year, 1 find no reason not to accept the appellants plea that
he has just allowed is bank account to be used by other persons in return
ascertain amount of commission. Therefore, appellant has earned commission at
05% the total amount deposited in his bank accounts. The learned assessing
officer is directed to give effect to this order accordingly, and computer
income of the appellant at 0.5% of the total deposits of Rs. 1,33,22,17,440.
11. With this, the Appeal is
partly allowed.
7. We observe from the
appellate order that the learned Commissioner (Appeals) has noted in the
appellate order for assessment year 2011-12 under similar facts commission
@0.25% of the total in the books and assessee was added to the income of the
assessee on the ground that the assessee was an entry provider and allowed his
bank accounts to be used by other persons in lieu of commission at 0.25% of the
deposits. Having observed so the learned Commissioner (Appeals) applied @.5% of
the total deposits on the same reasoning in the current year as well which we
do not find in any way to be wrong and in consistence with the facts of the
case. Accordingly we are inclined to uphold the order of learned Commissioner
(Appeals) by dismissing the appeal of the revenue.
8. In the result appeal of
the revenue is dismissed.
Order is pronounced in the open court on 5-4-2024