IN INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: NEW DELHI BEFORE SHRI R. S. SYAL, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER I.T.A .No.-4897/DEL/2012 (ASSESSMENT YEAR 2009-10) Jay Enn Infotech Pvt. Ltd. vs ACIT 105- A/2, Saraswati House, Central Circle- 11 27-Nehru Place New Delhi New Delhi-110019 AAACJ9991N (RESPONDENT) (APPELLANT) Appellant by Sh. Ruchesh Sinha, Adv Respondent by Sh. Umesh Chandra Dubey, SR. DR Date of Hearing 10.10.2016 Date of Pronouncement 14.10.2016 ORDER PER SUCHITRA KAMBLE, JM This appeal is filed against order dated 30/07/2012 passed by CIT(A) -XXXI, New Delhi 2. grounds of appeal are as under:- On facts and in circumstances of case and in law, appeal is filed before Tribunal against order of Commissioner (Appeals) XXXI erred in sustaining addition made by A.O. without appreciating true facts of case and assessing income of Assessee at Rs. 6096027 against returned income of Rs. 350670/-. assessee prays for total relief, so wrong additions made of Rs. 5745357 be deleted. appellant craves leave to add, amend alter vary and or withdraw any or all above ground of appeal. 3. Ld. AR submitted that application under Rule 9A read with Rule 11 of ITAT Rules and Judgment of Apex Court in case of NTPC Vs. CIT 229 ITR 383 (SC) was filed on 09.06.2016 for revising grounds of appeal. said grounds are as follows: 1. That in facts and circumstances of case, order of Ld. CIT (A) is arbitrary, invalid and illegal. 2. That in given facts and circumstances of case, CIT (A) has grossly erred in law on facts in not considering that survey u/s. 133A in this case was conducted on 24.9.2009 i.e. in F.Y. 2009-10 relevant for A.Y. 2010-11 and addition based on finding of survey if any, can be made for A.Y. 2010-11 only and not in A.Y. 2009-10. CIT(A) while confirming assessment order has grossly failed to consider that AO in this case has made addition for pre-survey period i.e. in F.Y. 2008-09 relevant for A.Y. 2009-10. 3. That in given facts and circumstances of case, order of CIT(A) is arbitrary, invalid and perverse as same does not deal with documentary and circumstantial evidence(s), does not consider detailed submissions placed on record, and is passed without verifying facts on record, giving proper opportunity of hearing to Appellant and also without considering that no addition in pursuance of survey can be made in A.Y. 2009-10. 4. That in given facts and circumstances of case, CIT(A) has grossly erred in law and on facts in confirming addition of Rs. 73,55,760/- made by AO in case of Appellant based on gross turnover. 5. That CIT(A) has grossly erred in confirming addition made by AO, without considering that before making addition AO has substantiated that appellant is providing accommodation entries in nature of bogus purchases to Tulip Group of cases, and any materials in this regard was never confronted or discussed with Appellant before making such addition. 6. That Appellant prays for all consequential reliefs entitled to it under law in pursuance of foregoing grounds of appeal or even otherwise. 4. brief facts of case are simultaneous survey operation was conducted on M/s. Jay Enn Infotech Pvt. Ltd. and M/s. Binary Network Solutions Pvt. Ltd. under Section 133A of Income Tax Act, 1961 on 24.09.2009 at 105, A/2, Saraswati House, 27, Nehru Place, New Delhi with action under Section 132 on Tulip Group of cases. Smt. Nirmala Jain, mother of Sh. Sunil Jain, Director was available at time of survey as Sh. Jain was away for treatment of his wife. During course of survey proceedings, certain incriminating documents in form of blank cheque books, loose papers and electronic media was found and impounded. Smt. Nirmala Jain confronted on basis of material so found and impounded. Assessing Officer observed that Assessee Company was providing accommodation bills and had no genuine sales. Sh. Sunil Jain never attended proceedings in course of survey nor in post survey inquiries. Therefore, Assessing Officer held that assessee is involved in business of providing accommodation purchase bills to various persons/concerns/entities without supply of goods and charges commission on such sales. In profit and loss account for period ending 31.03.2009, total turnover of assessee company is mentioned at Rs. 383682543/-. Considering that assessee is not involved in actual business of sale and purchase of goods and only issuing accommodation bills to provide bogus entries to various concerns on commission basis, income of assessee was assessed on account of commission charged @ 2% on gross turnover recorded in books of account. Thus income of assessee works out to Rs. 7673650/- (383682543 X 2%) on account of commission on gross turnover of assessee company. Thus Assessing Officer was satisfied that assessee failed to furnish true particulars of its income in return of income filed, for A.Y. 2009-10 and concealed particulars of income. Thus addition of Rs.7673650/- was made. 5. Aggrieved by this, assessee filed appeal before CIT(A). CIT(A) dismissed appeal of assessee by holding that rejection of books were justified and there is no ground for any interference with addition made. rate of commission charged @ 2% by AO is reasonable on entire accommodation bill and confirmed order of Assessing Officer. 6. Ld. AR submitted that in case of M/s. Binary Network Solution Pvt. Ltd. Vs. ACIT, ITAT, New Delhi has remanded matter back to file of Assessing Officer. (ITA NO. 1282/DEL/2014 dated 11.08.2016 A.Y. 2009-10). In said matter, Tribunal has set aside orders of authorities below and matter was restored to file of Assessing Officer. 7. Ld. DR relied upon orders of CIT(A) and Assessing Officer. 8. We have perused all records and heard both parties. statement of Smt. Nirmala Jain was taken on records in case of M/s. Binary Network Solution Pvt. Ltd. as well. case herein is identical with said case. Therefore, it will be proper to set aside orders of CIT(A) and Assessing Officer. matter is remanded back to file of Assessing Officer for fresh adjudication. Proper opportunity and hearing may be given to assessee and assessee is directed to produce necessary evidence before Assessing Officer. 9. In result, appeal is partly allowed for statistical purpose. order is pronounced in open court on 14th of October, 2016. Sd/- Sd/- (R.S. SYAL) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 14/10/2016 R. Naheed Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI Date 1. Draft dictated on .10.2016 PS 2. Draft placed before author .10.2016 PS 3. Draft proposed & placed before .2016 JM/AM second member 4. Draft discussed/approved by JM/AM Second Member. 5. Approved Draft comes to 14.10.2016 PS/PS Sr.PS/PS 6. Kept for pronouncement on PS 7. File sent to Bench Clerk 14.10.2016 PS 8. Date on which file goes to AR 9. Date on which file goes to Head Clerk. 10. Date of dispatch of Order. Jay Enn Infotech Pvt. Ltd. v. ACIT, Central Circle-11, New Delhi