IN INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE S/SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND AMARJIT SINGH, JUDICIAL MEMBER I.T.A. No.2868/Mum/2015 (Assessment Year: 2010-11) Shri Dilip Jayantilal Shah DCIT Central Circle 31 A/302, White Arch, Vs. Mumbai Mathurdas Road, Kandivali West, Mumbai - 400067 PAN/GIR No. : ASIPS1677F (Appellant) ( Respondent) Assessee by: Shri Vijay Kothari Department by: Shri B. C. S. Naik (CIT-DR) Date of Hearing: 11.08.2016 Date of Pronouncement: 05.10.2016 O R D E R PER AMARJIT SINGH, JM: assessee has filed present appeal against order dated 10.02.2015 passed by Commissioner of Income Tax (Appeals)-52, Mumbai [hereinafter referred to as CIT(A) ] relevant to A.Y.2010-11. 2. appellant has raised following grounds:- 1. On facts and Circumstances of case & law on subject Assessing Officer erred in estimating commission @ 0.50% instead of 0.10% there by making addition of ITA No.2868/Mum/2015 Assessment Year: 2010-11 Rs.23,95,657/-. On facts & circumstances of case and law on subject CIT(A) erred in upholding addition made be deleted. 3. brief facts of case are that assessee was employee of M/s.Avon Corporation Ltd. and filed his return of income u/s.139(1) of Income Tax Act, 1961( in short Act ) on 30.09.2010 declaring total income to tune of Rs.2,75,250/-. Thereafter, search and seizure operation u/s.132 of Act was carried out on 04.02.2011. premise of assessee was also covered during search. Some other premises of M/s.Avon Corporation Ltd were also covered by search simultaneously conducted u/s.133A of Act. During course of search and seizure and survey some documents were seized from premises of M/s.Avon Corporation Ltd and also from premise of assessee. recovered material speaks that assessee was engaged in providing accommodation entries of sale and purchase of various companies including M/s.Avon Corporation Ltd for which he was charging commission. statement u/s.132(4) of Act was recorded in which he stated that he was getting commission ranging from 0.02% to 0.10%. Subsequent to search, notice u/s.153A of Act was issued to assessee on 08.02.2012. Thereafter, assessee filed return of income on 27.02.2013, offering additional income of Rs.2,75,250/- from business of providing accommodation entries. While completing assessment, Assessing Officer estimated income @ 0.50% on total transactions of Rs.47,91,31,428/- made by assessee. Assessing Officer 2 ITA No.2868/Mum/2015 Assessment Year: 2010-11 estimated income to tune of Rs.23,95,657/- and said amount was added to income of appellant. Thereafter, assessment was completed by assessing income to tune of Rs.26,16,070/- vide order dated 25.03.2013 passed u/s.143(3) read with section 153A of Act. assessee was not satisfied, therefore filed appeal raising question of commission but CIT(A) dismissed appeal of assessee, therefore, assessee has filed present appeal before us. ISSUE NO.1:- 4. We have heard arguments advanced by learned representative of parties and perused record. sole ground which has been raised by assessee is that Assessing Officer has erred in estimating commission @ 0.50% instead of 0.10% adding income to tune of Rs.23,95,657/-. learned representative of assessee has argued that Hon ble Income Tax Appellate Tribunal in assessee s own case in ITA No.2867/Mum/2015 for A.Y.2009-10 has decided this issue in favour of assessee wherein Tribunal restricted commission to tune of Rs.0.20% in place of 0.50% and requested to follow with said order. However, learned representative of department has strongly relied upon order passed by CIT(A) in question. On appraisal of assessment order it came into notice that appellant was asserting in connection with getting commission @ 0.10% to 0.20%. contention of appellant was not accepted by Assessing Officer. However, Assessing Officer relied upon statement of Shri Pankaj Saraiya 3 ITA No.2868/Mum/2015 Assessment Year: 2010-11 recorded u/s.132(4) of Act during search proceeding where he stated that he was paying commission @ 50% to 60% per 100 rupees for bogus accommodation entries. Copy of order in ITA No.2867/Mum/2015 for A.Y.2009-10 in case of case of assessee has been perused in which Hon ble ITAT has restricted commission @0.20% in place of 0.50% assessed by Assessing Officer. However, no cogent and convincing evidence on record by which assessing officer was satisfied with income of assessee@ 0.50% from accommodation entry. Anyhow in this regard Hon ble ITAT has decided controversy of assessee in connection with last preceding year i.e.2009-10. 5. In view of said circumstances and by following decision of co-ordinate bench, we restrict addition to extent of 0.20% in place of 0.50%. Therefore this issue is decided accordingly in favour of assessee against revenue. 6. In result, appeal of Assessee is hereby partly allowed. Order pronounced in open court on 5th October, 2016 Sd/- Sd/- (SANJAY ARORA) (AMARJIT SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai; Dated : 5 October, 2016 th MP 4 ITA No.2868/Mum/2015 Assessment Year: 2010-11 Copy of Order forwarded to : 1. Appellant 2. Respondent. 3. CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. BY ORDER, //True Copy// (Dy./Asstt. Registrar) ITAT, Mumbai 5 Dilip Jayantilal Shah v. DCIT, Central Circle–31, Mumbai