Income Tax Appellate Tribunal - Mumbai
Sonia Daswani, Navi Mumbai vs Department Of Income Tax on 4 May, 2016
आयकर अपील य अ
धकरण "D"
यायपीठ मुंबई म ।
IN THE INCOME TAX APPELLATE TRIBUNAL "D" BENCH, MUMBAI
Before S/Shri Amit Shukla (Judicial Member) &
Ramit Kochar (Accountant Member)
आयकर अपील सं./I.T.A. No. 1588/Mum/2010
( नधा रण वष / Assessment Year : 2006-07)
The ITO 22(3)(4), Smt. Sonia K Daswani
3rd Floor, Tower No. 6 Prop. M/s. Saira Impex,
Vashi Railway Station Complex v. E-8, 0:1, Sector-1, Vashi
Vashi Navi Mumbai- 400 703
Navi Mumbai PAN : AHMPD5487D
(Appellant) (Respondent)
Appellant By Shri B S Bist,Sr. DR
Respondent By None
Date of Hearing :08.02.2016 Date of Pronouncement : 04-05.2016
ORDER
Per Ramit Kochar, Accountant Member
The aforesaid appeal has been filed by the Revenue against the order dated 16.12.2009 passed by the Commissioner of Income Tax(Appeals)-33, Mumbai (Hereinafter called "the CIT(A)) , for the assessment year 2006-07 , the appellate proceedings before the CIT(A) arising from the assessment order dated 31-12-2008 passed by the Assessing Officer(hereinafter called "the AO") u/s 143(3) of the Income Tax Act,1961(hereinafter called "the Act").
2ITA No.1588/Mum/2010
Smt. Sonia K Daswani
2. The grounds raised by the Revenue in the memo of appeal filed with the Income Tax Appellate Tribunal, Mumbai (hereinafter called "the Tribunal") reads as under :
"1. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs.10,45,385/- as profit @5% on undeclared sales of Rs.2,09,07,668/-
2. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs.9,51,665/- being courier charges reimbursement in principal, instead of which the Ld. CIT(A) has taken only 15% of this reimbursement as income.
3. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs.5 lakhs cash deposited in undisclosed bank account in Kotak Mahindra Bank Ltd. as part of undisclosed sale proceeds collected from sales made in market in cash on the basis of mere statement of assessee during the appellate proceedings without appreciating the fact that there is no supporting evidence of any sale or purchase transaction and the transaction is not reflected in the audited account.
4. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs.19,55,282/- on account of unexplained investment without appreciating the fact that the assessee failed to furnish any explanation during the course of assessment proceedings.
5. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in changing single stage of estimation of income @5% to double stage of estimation.
6. The appellant prays that the order of the CIT(A) on the above grounds be reversed and that of the assessing officer be restored."
3. None appeared on behalf of the assessee despite several opportunities being given to assessee as per order sheet entries , since January 2011 and when this appeal was called for hearing on the date fixed for hearing of this appeal , again none appeared on behalf of the assessee, hence, we are proceeding to dispose off 3 ITA No.1588/Mum/2010 Smt. Sonia K Daswani this appeal ex-parte after hearing the learned Sr. DR and on the basis of the material available on record.
4. The assessee is an individual and proprietor of the firm M/s. Saira Impex. The assessee is a consignee agent of M/s. Casio India Company Private Limited and is working on commission basis.
5. During the course of assessment proceedings u/s 143(3) read with Section 143(2) of the Act, the AO observed from the Profit and Loss Account of the assessee filed with the Revenue, that the assessee has shown sales of Rs.3,52,27,603/-. The Information u/s. 133(6) of the Act was called by the AO directly from Casio India Company Private Limited . On perusal of the details submitted by the Casio India Company Private Limited in response to notice by the AO u/s 133(6) of the Act, it was observed by the AO that the sales made by the assessee during the financial year 2005-06 were Rs.5,61,35,271/-. The assessee was show caused vide notices dated 24.12.2008 and 29.12.2008 by the AO about the afore-stated difference in the sales and why the sales of Rs.5,61,35,271/- should not be taken instead of sales of Rs.3,52,27,603/- as shown by the assessee in the Profit and Loss Account submitted with the Revenue . The AO observed that as per clause 3 of the agreement for consignee dated 11.01.2005 with Casio India Company Private Limited , no commission was payable by the said M/s. Casio India Company Private Limited to the assessee for the sale made outside the state of Maharashtra. The above clause clarified that the sales made within Maharashtra was Rs.3,52,27,603/- and the balance sale was outside Maharashtra of Rs. 2,09,07,668/. However, the assessee could not submit any explanation or produce 4 ITA No.1588/Mum/2010 Smt. Sonia K Daswani books of accounts to explain about this difference in sales before the AO in reply to above show cause notices, hence profit @5% i.e. Rs.10,45,383/- worked on the undisclosed sale of 2,09,07,668/-was added to the income of the assessee by the AO vide assessment orders dated 31.12.2008 passed u/s 143(3) of the Act. Further, the assessee claimed courier charges of Rs.9,51,665/- as revenue expenditure. On verification of the agreement for consignee agent between the assessee and Casio India Company Private Limited, it was observed by the AO that the courier expenses are to be reimbursed by the Casio India Company Private Limited . The assessee was show caused vide notice dated 24.12.2008 , that since the courier charges were being reimbursed by the Casio India Company Private Limited , then why said courier charges of Rs. 9,51,665/- should be allowed as revenue expenditure to the assessee. The assessee did not submit any explanation and hence the AO disallowed the courier charges of Rs.9,51,665/- and added the same to the income of the assessee vide assessment orders dated 31.12.2008 passed u/s 143(3) of the Act.
6.Aggrieved by the assessment orders dated 31.12.2008 passed by the AO u/s 143(3) of the Act, the assessee filed first appeal with the CIT(A).
7. The assessee filed a statement of facts along with the grounds of appeal before the CIT(A), in which it was stated that she was carrying on business as consignee agent of M/s. Casio India Company Private Limited on commission basis. The assessee's books of account were regularly maintained for the businesses carried on by the assessee which were regularly audited as per the provisions of Section 44AB of the Act. The audit report was duly filed along with return of income on 5 ITA No.1588/Mum/2010 Smt. Sonia K Daswani 31.10.2008. The assessee submitted that she had given necessary evidences/documents/explanations in the course of assessment proceedings u/s 143(3) read with Section 143(2) of the Act to the authorized representative. It was only on reading of the assessment order dated 31.12.2008 it appeared that the details/explanations given by the assessee to the counsel were not submitted by the counsel to the AO, which has resulted into various additions resulting into assessed income being computed u/s 143(3) of the Act at Rs. 83,38,000/- , against returned income of Rs.4,81,383/-.
It was further submitted by the assessee during the course of appellate proceedings before the CIT(A) that as per the agreement with Casio India Company Private Limited, no commission was payable to the assessee on sales effected through her for the sale outside the State of Maharashtra. The assessee submitted that the AO has himself noted in the assessment order that no commission is payable to the assessee on sales made outside the State of Maharashtra but by making additions by estimating income on the alleged sales outside the State of Maharashtra is contrary to the AO's own observations and evidence on record. The AO has calculated the income of the assessee by making an addition of Rs.10,45,383/- to the income of the assessee as the AO was of the opinion that the assessee had declared the commission income on Rs.3,52,27,603/- on sales made within State of Maharashtra instead of Rs.5,61,35,271/- which was actual sales of the assessee. The AO therefore added 5% to the income of the assessee on the sale outside Maharashtra of 2,09,07,668/-. It was submitted that as per the agreement, the assessee had not received any commission on the sales outside Maharashtra. It 6 ITA No.1588/Mum/2010 Smt. Sonia K Daswani was further submitted that her books, record and the statements were not properly prepared and maintained by the earlier tax consultant and the assesssee requested that books of accounts be rejected by the Revenue and to estimate her income by applying the provisions of section 145 of the Act keeping in view that the assessee is an C & F agent and gets commission from Casio India Company Private Limited on the goods sold through the assessee. The total commission received was Rs.39,11,279/- which is supported by the TDS certificate issued by the Casio India Company Private Limited and ledger extracts from the M/s. Casio India Co. Pvt. Ltd.. It was stated before the CIT(A) by the assessee that these documents are already on record with the AO who had obtained the same directly from the Casio India Company Private Limited by calling information u/s 133(6) of the Act. The assessee requested the CIT(A) that the income from commission be estimated at reasonable rates.
8. The CIT(A) considered the submissions of the assessee and the assessment order of the AO . In view of the fact that the assessee has herself conceded that the income has not been correctly calculated and offered for taxation, the CIT(A) found that action of the AO in calculating the profit on sales of Rs.2,09,07,668/- on which the assessee had not declared any profits could not be faulted with. Further the assessee had himself submitted on 29.11.2009 that the net profit rate of 10% to 15% or any other figure should be calculated on sales as commission received which would include the deduction of expenses claimed. The CIT(A) found that in the assessment order dated 31.12.2008 u/s. 143(3) of the Act, the AO had added back Rs.9,51,665/- claimed as deduction of courier expenses in the P & L account 7 ITA No.1588/Mum/2010 Smt. Sonia K Daswani by the assessee as per the agreement for consignee agent made between the Casio India Company Private Limited and the assessee, it clearly states that the expenses of courier were to be reimbursed by Casio India Company Private Limited and if this was so then the expenses would not have been incurred by the assessee at all. The CIT(A) considered the submissions of the assessee and observed that as the assessee had herself offered that correction in her commission income be made, the CIT(A) estimated 11% rate of commission on undisclosed sales of Rs.2,09,07,668/- which is in parity with the commission earned on disclosed sales of Rs.3,52,27,603/- made by the assessee. With respect to courier charges of Rs.9,51,665/- was also added to the gross income being commission of Rs.39,11,279/- on disclosed sales and commission income so estimated of Rs.22,99,843/- on undisclosed sales made by the assessee, and taxable income being net profit @15% on aggregate of commission and courier charges as above , was estimated at Rs.10,74,418/- as net profit from business of the assessee and brought to tax vide orders of the CIT(A) dated 16.12.2009 .
9. Aggrieved by the orders dated 16.12.2009 of the CIT(A), the Revenue filed appeal before the Tribunal.
10. The learned Sr. DR contended that the CIT(A) erred in deleting the addition of Rs. 10,45,383/- as profit @5% on undeclared sales made through the assessee by Casio India Company Private Limited. The learned DR submitted that the CIT(A) erred in deleting the addition of Rs.9,51,665/- being courier charges as the CIT(A) has erroneously taken 15% of this reimbursement as income. He further submitted that the assessee has undisclosed sale of Rs.2,09,07,668/-. The assessee has 8 ITA No.1588/Mum/2010 Smt. Sonia K Daswani reported a sale of Rs.3,52,27,603/- on which she has received commission of Rs.39,11,279/- but she has not declared any income on the undisclosed sale of Rs.2,09,07,668/-. Similarly, it was submitted that the CIT(A) has added 15% of the courier charges of 9,51,665/- along with commissions on total sales, to estimate the total profit at Rs.10,74,418/- from business. The Sr. DR stated that the courier charges has been wrongly claimed as expenses because the said expenses were reimbursed by Casio India Company Private Limited as per terms of the agreement hence, the order of the CIT(A) should be set aside and the AO be directed to verify whether it is justifiable to include it as a part of gross receipt and if not then it should be disallowed and added to the income of the assessee.
11. None appeared on behalf of the assessee despite several opportunities being given to the assessee and even notices being served through DR as per order sheet entries , since 2011. We have heard the learned Sr. DR and perused the material on record. We have observed that the assessee has entered into an agreement for consignee dated 11.01.2005 with Casio India Company Pvt. Ltd. , whereby there was a sale of Rs.3.52 crores which was made through the asssessee by Casio India Company Private Limited which was declared to the Revenue , further there was sale of 2.09 crores which was sale made by Casio India Company Private Limited through assessee , which was not disclosed in the return of income filed by the assessee with the Revenue. The AO made an enquiries u/s 133(6) of the Act with Casio India Company Private Limited and observed that an agreement with Casio India Pvt. Ltd., stipulates that the assessee is not entitled for any commission for sale made outside Maharashtra. The assessee did not submit 9 ITA No.1588/Mum/2010 Smt. Sonia K Daswani evidences to substantiate that this sale of Rs.2.09 crores which was not disclosed to the Revenue does not entitle it to any income as per agreement with Casio India Pvt. Ltd. which could be brought to tax by the Revenue. The AO has duly made enquiries with Casio India Pvt. Ltd. u/s. 133(6) of the Act. During the course of appellate proceedings , it was submitted by the assessee that she had given necessary documents/evidences to the counsel but the same were not forwarded to the Revenue during the course of assessment proceedings u/s 143(3) read with Section 143(2) of the Act. She further submitted that the books were not properly maintained and, hence, the income be estimated. The AO estimated profit@5% on the said undisclosed sale of Rs.2.09 crores. The CIT(A) estimated the commission income @11% on the said undisclosed sale of Rs.2.09 crores based upon the parity with the existing rate calculated on the commission of Rs.39,11,279/- earned on the disclosed sale of Rs.3.52 crores which comes to 11% and from the commission income so estimated against which necessary expenses were allowed by the CIT(A), for which the CIT(A) estimated that 15% net profit ratio will be justified . Similarly, with respect to the courier charges of Rs.9,51,665/-, it was estimated by the CIT(A) to be part of receipt being reimbursement of courier charges and profit ratio of 15% was applied while granting benefit of deduction of expenses. In our considered view, the assessee did concede that her tax consultant has not maintained proper books of accounts and requested for rejection of book results and estimating profit chargeable to tax. The estimates are to be made keeping in view the background of the business of the assessee and the available records and is to be a reasonable and fair estimate of income to be brought to tax which necessarily involves estimation based on some guess work and the same cannot achieve perfection or 10 ITA No.1588/Mum/2010 Smt. Sonia K Daswani precision to yield exact income which can be brought to tax . The CIT(A) made an estimate of the earnings of the assessee keeping in view the entire background of the case and in our considered view, no defect or infirmity is observed in the working of the estimates by the CIT(A), which is hereby ordered to be confirmed. We order accordingly.
However, with respect to courier charges of Rs.9,51,665/- being included in the income of the assessee on estimated profit rate basis as set out above, direction for limited verification are hereby issued to the AO to verify whether the courier charges of Rs.9,51,665/- debited by the assessee to the Profit and Loss account and claimed as an expenses by the assessee in the return of income filed with the Revenue, as per the agreement with Casio India Pvt. Ltd. are to be part of gross revenue or were reimbursed by Casio India Company Pvt. Ltd. separately and if these expenses are found to reimbursed by the Casio India Company Private Limited separately, then the total amount of courier charges of Rs.9,51,665/- claimed by the assessee as revenue expenses will be disallowed, otherwise the income as computed by the CIT(A) is confirmed. We order accordingly. This will dispose of grounds 1 & 2 of the revenue's appeal.
12. With respect to ground no.3, during the course of assessment proceedings u/s 143(3) read with Section 143(2) of the Act, the AO observed that as per the AIR information , the assessee had received interest amount of Rs.4,225/- from Kotak Mahindra Bank Ltd. . The assessee was asked to give details of interest earned from the Kotak Mahindra bank. In this regard the assessee submitted that she had no such bank account in Kotak Mahindra Bank and no interest was received by her. 11 ITA No.1588/Mum/2010
Smt. Sonia K Daswani The information was called by the AO u/s. 133(6) of the Act from Kotak Mahindra Bank in respect of interest received by the assessee. The bank statement revealed that the assesse had deposited cash amounting to Rs. 5 lakhs and cheques amounting to Rs.22,50,000/- on different dates and payment of Rs.25,00,000/- had been made by cheque to Hyundai Ind. In this regard the assessee was asked by the AO to give explanation and supporting evidences for the source of deposits in the Kotak Mahindra Bank , else the same along with interest of Rs.4,225/- would be treated as unexplained cash credit u/s. 68 of the Act. The assessee despite being given opportunities by the AO did not discharge her onus u/s 68 of the Act and hence additions of Rs.27,50,000/- was made by the AO to the income of the assessee u/s 68 of the Act vide assessment orders dated 31.12.2008 passed by the AO u/s 143(3) of the Act.
13. Aggrieved by the assessment order dated 31.12.2008 passed by the AO u/s 143(3) of the Act, the assessee filed first appeal with the CIT(A).
14. Before the CIT(A), the assessee submitted that the assessee was dealing with Thakkral Computers Pvt. Ltd and Rs.24,55,282/- (dealt in the next ground and inter- related to this ground of appeal) represented the amounts paid to M/s. Thakkral Computers Pvt. Ltd. against purchase of goods which were sold in the market, whereby both purchases and sale thereof has not been disclosed in the return of income filed with the Revenue. As regards additions of Rs.27,50,000/- represented by cash deposit of Rs. 5 lacs and deposit of cheques of Rs.22,50,000/- on different dates with Kotak Mahindra Bank represents trading receipt on sale of electronic items which were purchased from the said Thakkral Computers Private Limited . 12 ITA No.1588/Mum/2010
Smt. Sonia K Daswani The assessee submitted that no details were available with respect to deposit of cheques of Rs.22,50,000/- with the bank , while cash deposit of Rs. 5 lacs representing receipt of sale proceed in cash of electronic items so sold by the assessee out of books which were purchased from Thakkral Computers Private Limited. The accountant had not recorded these purchases or sales from Thakkral Computers Pvt Ltd. . She further submitted that since her purchase and sale from Thakkral Computers were less than Rs.40 lacs, the activity falls within the ambit of presumptive taxation u/s. 44AF of the Act and so the profit may be estimated @5% as per the provisions of section 44AF of the Act. The CIT(A) considered the submission of the assessee and therefore benefit of Rs. 5 lacs was allowed to the assessee with respect to un-accounted sale in cash of electronic items while the addition to the extent of Rs.22,50,000/- with respect to deposits of cheques for which no details were furnished by the assessee to satisfy the ingredients of Section 68 of the Act , was confirmed by the CIT(A) and also addition on account of interest income of Rs.4226 credited in Kotak Mahindra Bank Limited was confirmed by the CIT(A) vide orders dated 16.12.2009.
15.Aggrieved by the orders dated 16.12.2009 of the CIT(A), the Revenue is in appeal before the Tribunal.
16. The learned DR relied on the order of the AO while none appeared for the assessee despite several opportunities given to the assessee , since 2011.
17. We have heard the learned DR and have perused the material on record. We find that the assessee had made payment of Rs. 24,55,282/- to Thakkral Computers Pvt. Ltd. through banking channels from the IndusInd Bank which is an bank 13 ITA No.1588/Mum/2010 Smt. Sonia K Daswani account duly disclosed and declared to the Revenue and sources of credit in the said bank account stood explained as per the facts emerging from the orders of the authorities below. The assessee has neither disclosed the purchases made from Thakkral Computers Private Limited nor the corresponding sales made , to the Revenue in the return of income filed with the Revenue. The assessee has come forward with the explanation that Rs.5 lacs deposited in the bank in cash is out of the cash sales made by the assessee out of the undisclosed purchases made from Thakkral Computers Private Limited . The Revenue has not brought any incriminating material to disprove the contentions of the assessee and to prove that the said cash so deposited in bank of Rs. 5 lacs , is out of any other source of income of the assessee which is not declared and disclosed to the revenue while the explanation offered by the assessee is a plausible explanation which keeping in view the factual matrix of the case was accepted by the CIT(A). The total payment made for the undisclosed purchases made from Thakkral Computers Private Limited through the bank account is 24,55,282/- and hence there will also be sales corresponding to the said purchases. Both the sales and purchases with respect to these electronic items so purchased from Thakkral Computers Private Limited is not declared and disclosed by the assessee to the Revenue in the return of income filed with the Revenue. There are cheques deposited of Rs.22,50,000/- on different dates in the Kotak Mahindra Bank Limited by the assessee for which no explanations was offered by the assessee to satisfy the ingredients of Section 68 of the Act which was added by the AO to the income of the assessee and confirmed by the CIT(A). With respect to the cash deposit of Rs.5 lacs in Kotak Mahindra Bank , the assessee came out with an explanation that the same is part of sale proceed in cash of the 14 ITA No.1588/Mum/2010 Smt. Sonia K Daswani electronic items purchased through Thakkral Computers Private Limited and the same should be treated as part of sale proceeds in cash, which explanation was accepted by the CIT(A) being plausible and bona-fide explanation in the absence of any incriminating material brought by the Revenue to disprove the contentions of the assessee and in our considered view, we donot find any infirmity in the orders of the CIT(A) which we confirm and the action of the CIT(A) granting relief of Rs.5,00,000/- is upheld. We order accordingly.
18. During the course of assessment proceedings u/s 143(3) read with Section 143(2) of the Act, the assessee submitted a copy of ledger account of Thakkral Computers Pvt. Ltd. which shows payment of Rs.24,55,282/- has been made by the assessee from IndusInd Bank, which is a regular bank account of the assessee duly declared in the return of income filed with the Revenue. The AO alleged that the assessee has made investments which are not recorded in the books of account and, hence, the same should be treated as income u/s. 69 of the Act. Despite giving sufficient opportunities, the assessee failed to discharge its onus before the AO. Thus, the AO made an addition of Rs.24,55,282/- to the total income of the assessee on account of unexplained investment u/s 69 of the Act vide assessment order dated 31.12.2008 passed u/s 143(3) of the Act.
19. Aggrieved by the assessment orders dated 31.12.2008 passed by the AO u/s 143(3) of the Act, the assessee filed first appeal before the CIT(A).
20. The CIT(A) observed that as per the assessee , the transactions of purchases with Thakkral Computers Private Limited whereby payment of Rs.24,55,282/- was made , is an unaccounted transactions. The assessee had submitted that Rs 5 lacs 15 ITA No.1588/Mum/2010 Smt. Sonia K Daswani cash deposit in Kotak Mahindra Bank represent part of the profits of these transactions and since the profit is more than 20%, Section 44AF of the Act as contended by the assessee cannot be accepted. The CIT(A) observed that payment of Rs.24,55,282/- has been made out of IndusInd Bank to Thakkral Computers Private Limited which is explained by the assessee to be the regular bank account of the assessee disclosed to the Revenue in return of income filed with the Revenue, whereby commission income earned by the assessee were credited which were duly offered for taxation in the return of income filed with the Revenue. Thus, the CIT(A) after considering the material on record held that the investment cannot be said to be made out of undisclosed sources. Therefore , as per the CIT(A) section 69 of the Act would not have any application. But the profit from these transaction of sale and purchase of electronic items which were not disclosed to the Revenue in the return of income filed with the Revenue, are to be brought to tax. The entire sale proceeds cannot be brought to tax and only the net profit is to be brought to tax. As no other details are available , the amount of Rs. 5 lacs was taken as profit earned by the assessee on the transactions which have not been declared and offered for taxation , which was stated by the assessee to be undisclosed / unrecorded sale in cash, which was deposited in bank and stated to be part of the profit of these transactions. The assessee was thus granted a relief of Rs.19,55,282/- by the CIT(A) and addition was sustained to the extent of Rs.5 lacs as profits earned by the assessee on account of undisclosed sales by the CIT(A) vide orders dated 16.12.2009.
16ITA No.1588/Mum/2010
Smt. Sonia K Daswani
21. Aggrieved by the orders of the CIT(A) dated 16.12.2009, the Revenue is in appeal before the Tribunal.
22. Before us the learned Sr. DR submitted that the assessee has made unexplained investments of Rs.19,55,282/- which has been erroneously deleted by the CIT(A). The total investment was Rs.24,55,282/- and the AO has correctly made the addition. However, no enquiries were made with Thakkral Computers Pvt. Ltd. The learned CIT(A) should have called for the remand report from the AO with respect to the additional evidences submitted by the assessee. None appeared for the assessee despite several opportunities given to the assessee , since 2011.
23. We have considered the contentions of the ld. Sr. DR and perused the material on record. We have observed that the assessee has made payment of Rs.24,55,282/- to Thakkral Computers Pvt. Ltd. out of the regular bank account with IndusInd Bank whereby the credits are duly offered for tax by the assessee as per the facts emerging from the orders of the authorities below, the said payments of Rs.24,55,282/- to Thakkral Computers Pvt. Ltd. had not been recorded in the books of account. The assessee has come forward with the explanation that this represent unexplained purchases and correspondingly unrecorded sales were made. It was further submitted that 5% of the investment be treated as profit u/s. 44AF of the Act and the same should be brought to tax. The CIT(A) has estimated profit at Rs.5 lacs on these transaction based on the explanation of the assessee that Rs. 5 lacs deposited in cash in bank account with Kotak Mahindra Bank represents cash sales not disclosed to the Revenue with respect to the electronic items purchased from Thakkral Computers Private Limited and represents part of profit from these 17 ITA No.1588/Mum/2010 Smt. Sonia K Daswani unrecorded purchase and sale of electronic items and the CIT(A) gave relief of Rs.19,55,282/- as the sources of making payment were duly explained to be commission income credited in the IndusInd Bank which was offered for tax by the assessee and the bank account with IndusInd Bank was duly declared and disclosed by the assessee to the Revenue . We do not find any infirmity in the orders of the CIT(A) which we confirm and uphold the same. We order accordingly.
24. In ground no.5, the revenue is aggrieved by the double stage of estimation by the CIT(A) wherein at first stage the CIT(A) estimated commission income on sales @11% and thereafter allowed relief of deduction of expenses and applied net profit rate@15% of the commission income so estimated @11% on sales. The learned DR submitted that the CIT(A) erred in giving relief of double stage by first estimating commission @11% on sales and then applying profit rate of 15%.
25. We have heard the learned Sr. DR and perused the record. The CIT(A) based upon the profitability on disclosed sales has applied on the same parity , the same rate of commission @11% on the undisclosed sales made by the assessee. The revenue also having made enquiries with Casio India Company Private Limited u/s 133(6) of the Act. The assessee submitted before the CIT(A) that profit may be estimated as her books of account are not properly maintained by her tax consultant . No explanation with evidences has been submitted by the assessee before the authorities below to explain the income which need to be brought to tax in context of the undisclosed sale of Rs. 2.09 crores made through the assessee by Casio India Company Private Limited. The CIT(A) in a very reasonable and fair manner first estimated commission income @11% on undisclosed sale made and on 18 ITA No.1588/Mum/2010 Smt. Sonia K Daswani the courier charges , which was in parity with and equivalent to the ratio of commission income of Rs.39,11,279/- being given by Casio India Company Private Limited to the assesssee on disclosed sale of Rs.3.52 crores which is also confirmed by the TDS certificate and the books of account of the assessee and on the same ratio estimated 11% commission on undisclosed sales of Rs. 2.09 crores and, thereafter, the CIT(A) applied the 15% ratio of profit on commission income on disclosed sale and undisclosed sales whereby giving benefit of the deduction of expenses to the assessee. Hence, the action of the CIT(A) cannot be faulted with as the estimation has been done by the CIT(A) on a reasonable and fair basis as some guess work is always involved in estimation and the same cannot be made with exact precision and perfection to arrive at exact income. Hence, we donot find any infirmity in the orders of the CIT(A) which we uphold and confirm. We order accordingly.
26. In the result, the appeal of the revenue is partly allowed.
Order pronounced in the open court on this day of 4th May 2016.
Sd/- sd/-
(Amit Shukla) (Ramit Kochar)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai, Dated : 4th May, 2016
SA
19
ITA No.1588/Mum/2010
Smt. Sonia K Daswani
Copy of the Order forwarded to :
1. The Appellant
2. The Respondent.
3. The CIT, Mumbai.
4. The CIT(A)-, Mumbai
5. DR 'D' Bench, ITAT, Mumbai
6. Guard file.
BY ORDER
//True Copy//
Assistant Registrar
Income Tax Appellate Tribunal,
Mumbai
PS