1 IN INCOME TAX APPELLATE TRIBUNAL, DELHI F BENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA No. 6348/DEL/2015 [A.Y 2007-08] ITA No. 6349/DEL/2015 [A.Y 2008-09] ITA No. 2254/DEL/2016 [A.Y 2006-07] ITA No. 2259/DEL/2016 [A.Y 2008-09] Smt. Nirmal Oberoi Vs. A.C.I.T C 170, III Floor Central Circle 10 West Patel Nagar New Delhi New Delhi PAN: AAJPO 5097 N (Applicant) (Respondent) Assessee By : Shri M.P. Rastogi, Adv Department By : Shri Surender Pal Sr. DR Date of Hearing : 18.09.2019 Date of Pronouncement : 24.09.2019 ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, ITA No. 6348 and 6349/DEL/2015 are two separate appeals by assessee preferred against two separate orders of ld. CIT(A)- 32, New Delhi dated 31.10.2013 pertaining to Assessment Years 2007- 08 and A.Y 2008-09. ITA No. 2254 and 2259/DEL/2016 [A.Y 2008-09 2 2015 are two separate appeals by assessee preferred against two separate orders of ld. CIT(A)- 27, New Delhi dated 24.02.2016 pertaining to Assessment Years 2007-08 and A.Y 2008-09. 2. First two appeals are in respect of additions made by Assessing Officer and next two appeals are in respect of levy of penalty u/s 271(1)(c) of Income-tax Act, 1961 [hereinafter referred to as 'The Act']. 3. Since underlying facts in issues are identical, all these appeals are being disposed off by this common order for sake of convenience and brevity. 4. Briefly stated, facts of case are that search and seizure operation u/s 132 of Act was carried out on 10.02.2010 on Raheja Group. During course of search operations, search party found bills for purchase of cement and TMT bars of M/s Amba Enterprises. It was found that Amba Enterprises was giving bogus bills to Raheja Group of companies with intention to inflate their purchases and lessen instances of tax. 3 5. Pursuant to these clinching evidences, during course of scrutiny assessment proceedings, Assessing Officer recorded statements of Shri Ashok Oberoi, husband of assessee, who, in his statement, explained modus operandi and earning of commission. Shri Oberoi stated that by issuing accommodation bills, commission @ 10p to 15 paise per 100 paise was received. Taking leaf out of this statement, Assessing Officer estimated income from commission @ 1% and made addition of Rs. 22,58,031/- in Assessment Year 2007-08 and Rs. 8,42,107/- in Assessment Year 2008- 09. 6. Proceeding further, Assessing Officer further made addition of 1% on basis of VAT returns filed by assessee and made addition of Rs. 1,67,989/- in Assessment Year 2007-08 and Rs. 95,000/- in Assessment Year 2008-09. 7. assessee agitated additions before ld. CIT(A) but without any success. 8. Before us, ld. counsel for assessee stated that in this line of clandestine activities, person who is giving accommodation 4 bills earns commission ranging from 15p to 50p, and, therefore, estimation made by Assessing Officer is on higher side. 9. ld. DR strongly supported findings of lower authorities. 10. We have given thoughtful consideration to orders of authorities below. undisputed fact is that assessee was found to be engaged in issuing accommodation bills. It is also not in dispute that assessee has been giving accommodation bills only to Raheja Group. It is also not in dispute that while making estimation of 1%, Assessing Officer has not brought any comparable case on record. It is equally true that in such clandestine activities, commission ranges from 15p to 50p. 11. In our considered opinion, estimation of addition @ 35p should meet ends of justice. We, accordingly, direct Assessing Officer to make addition taking 35p as estimated rate of commission earned by assessee. In both quantum appeals, assessee will get part relief. 5 12. other addition relates to estimation of 1% as income made on basis of VAT returns. 13. We are of considered opinion that once entire sale bills have been treated as bills for providing accommodation entries and on which estimated profit has already been taxed, same amount cannot be taken for double addition on basis of VAT returns. Assessing Officer, accordingly, is directed to delete impugned addition. 14. Coming to penalty appeals, though ld. CIT(A) has dismissed appeals of assessee in limine, without considering merits/demerits of addition, we are of considered view that quantum additions have been estimated by Assessing Officer which have been further reduced by estimation by us [supra]. Therefore, in our considered opinion, these are not fit cases for levy of penalty u/s 271(1)(c) of Act. We, accordingly, direct Assessing Officer to delete penalty so levied. 6 15. In result, appeals of assessee in ITA Nos. 6348 & 6349/DEL/2017 are partly allowed and appeals of assessee in ITA Nos. 2254 & 2259/DEL/2017 are allowed. order is pronounced in open court on 24.09.2019. Sd/- Sd/- [SUDHANSHU SRIVASTAVA] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 24th September, 2019 VL/ Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi 7 Date of dictation Date on which typed draft is placed before dictating Member Date on which typed draft is placed before Other Member Date on which approved draft comes to Sr.PS/PS Date on which fair order is placed before Dictating Member for pronouncement Date on which fair order comes back to Sr.PS/PS Date on which final order is uploaded on website of ITAT Date on which file goes to Bench Clerk Date on which file goes to Head Clerk date on which file goes to Assistant Registrar for signature on order Date of dispatch of Order Nirmal Oberoi v. A.C.I.T Central Circle-10, New Delhi