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Income Tax Appellate Tribunal, E BENCH, MUMBAI
Per contra, the Ld. Departmental Representative submitted that 8. information was received from Foreign Intelligence which revealed that some Indian Companies (including the Appellant) have engaged in systematically under-invoicing of the import of marble Blocks and Slabs with the help of foreign suppliers, who are issuing invoices by general description (usually rough marble block) and not specifying the exact type of marble being sold. The prices appearing on the invoices were agreed upon between the parties were very low with respect to the real sale price. Further, as per the information received and on perusal of the financials of M/s Trident Marbles Pvt. Ltd., the Assessing Officer noted that the Appellant had imported rough marble blocks/rough marble slabs from HENRAUX SPA, ITALY, 5 (Assessment Year: 2014-15) a foreign company named in the information received to have indulged in under-invoicing. In response to the show-cause notice issued by the Assessing Officer, the Appellant had submitted that as per normal business practice prevalent in industry, the above consignment was sold by way of High Sea Sales to M/s. Stoneman Royal Ltd. and the entire process of custom clearance and duty was paid by M/s. Stoneman Royal Ltd. During the course of post search proceedings, statement of Mr. Rajesh Aggarwal, Director of the Appellant was recorded under Section 131 of the Act, wherein he simply denied the fact that the Appellant was under-invoicing the imports of marble from Italy. However, the Appellant failed to provide any supporting documentary evidences to justify the same. The Assessing Officer noted that Mr. Rajesh Agarwal, Director of the Appellant and Mr. Jagat Shah, Director of to M/s. Stoneman Royal Ltd admitted before Directorate of Revenue Intelligence (DRI) that the purchases were under-invoiced and paid differential customs duty. The Ld. Departmental Representative submitted that, clearly, the Appellant had accepted the fact that it has made under invoiced/unbilled import of marble from Italian suppliers, which was never accounted in the regular books of accounts. This was also corroborated by the information received from Embassy of Italy. The Appellant had failed to furnish any documentary evidence to justify its claim and to rebut these findings. Thus, the Assessing Officer was justified in making the addition of INR 39,12,584/- under Section 69C of the Act by treating the differential value as unaccounted expenditure not recorded in books of accounts of the Assessee.
We have heard both the parties and perused the entire record along with the decisions relied upon by the parties. (Assessment Year: 2014-15) Information received from the Embassy of Italy, in the form of a 9. Note-Verbale (212/1353), dated 11/07/2014, (placed at page 90 to 107 of the paper-book) indicating that criminal proceeding were launched in Italy against some persons in connection with money laundering, tax frauds and illegal financial activities. The investigations carried out by the Italian authorities revealed that in several cases of sale of marble (in blocks and slabs) by Italian companies to Indian companies were under-invoiced, resulting in tax frauds in Italy and loss to the government exchequer in India on account of evasion of customs duty in India. According to Investigation, the differential payments for value not forming part of invoices were received in cash or by wire transfer in countries such as Switzerland or the Bahamas having low tax rate. As per the information, the Appellant had purchased and imported marble from HENRAUX SPA for invoiced amount of € 42,360/- that was under invoiced by € 45,788/- equivalent to INR 39,12,584/-. In proceedings initiated by the customs authorities, the Appellant paid differential amount of duty of INR 5,77,841/- along with Interest of INR 3,16,636/-. The information received from Embassy of Italy in the form of Note-Verbale (212/1353), dated 11/07/2014 (along with relevant Annexures) and the proceedings before the customs department is the basis of additions of INR 39,12,584/- made by the Assessing Officer under Section 69C of the Act by treating the differential value on which differential custom duty was paid by the Appellant as unaccounted expenditure not recorded in books of accounts of the Assessee.
The case of the Appellant is that the differential duty was paid ‘under 10. protest’ to buy peace of mind. Further, in case of identically placed company (i.e. Classic Marble Company Limited) which opted to (Assessment Year: 2014-15) challenge in the differential duty paid in appeal before the CESTAT, the levy of differential duty was deleted. On perusal Note-Verbale (212/1353), dated 11/07/2014 [relevant extract at Page 100 of the paper-book] we find that the name of Classic Marble Company Limited is mentioned at Sl. No. 2 whereas the name of the Appellant is at Sl. No.
On perusal of order dated 11/09/2020 passed by the CESTAT in Customs Appeal No. 87484 of 2018 in the case of Classic Marble Company Limited we find that the levy of differential custom duty has been deleted on account of lack of evidence about under- valuation of goods. The relevant extract of the aforesaid decision reads as under: “8. The learned adjudicating authority in this case, has solely based his findings for substantiating the charges of undervaluation of imported goods on the ground that the Director of the appellant company had voluntarily made payments of the duty amount without any protest and as such, there was no requirement of consideration of additional evidence to establish such charges. Further, it has also been held in the impugned order that the fact of voluntary payment and corroboration from the Note-Verbale were sufficient evidence to establish the charge of undervaluation. We find that the appellant vide its letters dated 22.09.2016, 23.09.2016 and 16.12.2016 addressed to the Assistant Director of DRI, Mumbai Zonal Unit had stated that the payments made by it in connection with enquiry into the matter of import of the subject goods were towards 'pre-deposit'. Further, we also find from the certificate dated 14.06.2018 issued by M/s V.C. Shah & Co., Chartered Accountants that the appellant had reflected the pre-deposited amount as "Receivables from Customs Department" under the accounting head of "Current Assets"in the Balance Sheet prepared for the year ending 31.03.2017. Such documentary evidences prove the fact, beyond any shadow of doubt that the pre- deposited amount cannot be considered as voluntary payment and that the appellant was desirous in getting back such amount either at the adjudication or the appellate stage. Thus, it cannot be said that the appellant had deposited the duty amount out of its own volition and there was no hint of any demur or protest. Further, it is not the case of Revenue that the appellant at point of time had stated that the amount in question was paid as an admission of under valuation of goods. Even assuming that the appellant had expressed its 8 (Assessment Year: 2014-15) willingness to make a deposit of the differential duty amount, but such willingness cannot be construed as an admission of undervaluation inasmuch as admission, if any, has to be backed by documentary evidence, since tax related issues are a matter of law, rather than a matter of willingness. In the case in hand, the department has not adduced any additional independent evidence to establish the charges of undervaluation of goods and had mainly relied upon the intelligence received from the Italian authorities in the form of Note-Verbale. It is a settled position of law that in a case of undervaluation, corroboration of a document/statement is required by independent evidence obtained through independent sources. We find that the department has not brought on any iota of evidence to prove the charges of undervaluation of goods. In this context, the law is well settled in the case of Union of India vs. Ashok Kumar & Ors., (2005) 8 SCC 760 that burden of establishing malafides is very heavy on the person who alleges it; that the allegations of malafides are often more easily made than proved and the very seriousness of such allegations demand proof of a high order of credibility.
The presumption as to authenticity of documents for the purpose of consideration as evidence is contained in Section 139 ibid. Clause (ii) of Section 139 ibid provides that a document received from abroad is admissible evidence, provided it has been received from a place outside India and should be in the course of investigations, which are being carried out under the Act of 1962. Firstly, the impugned Note-Verbale in this case cannot be construed as a 'document' of the kind contemplated under Section 139 ibid. The term 'document' provided under Section 139(ii) ibid cannot cover a mere 'request letter'/'letter rogatory in the form of a Note-Verbale. The Note-Verbale in the present case is only a request letter, requesting the Indian authorities for international legal assistance in respect of four persons, against whom investigations were initiated in Italy. The word 'document' as per the statutory provisions, can only mean such document which in the nature of evidence for the purpose of investigations of any offence alleged to have been committed by a person under the Act. Therefore, a 'request letter' cannot be termed as a 'document' in the nature of evidence as stipulated under Section 139(ii) ibid, to establish a charge of undervaluation against a person. Secondly, the said Note-Verbale does not pertain to investigations which are carried out under this Act of 1962, but pertain to investigations being carried out under the Italian laws and such report was forwarded to the Indian authorities to provide evidence against (Assessment Year: 2014-15) the said persons in Italy. Hence, Section 139(ii) does not contemplate or cover a situation like the present case, where investigations were initiated in a place outside India, consequent to which investigations were initiated in India.
The learned adjudicating authority in this case has accepted that the Note-Verbale only indicated commencement of criminal proceedings against the indenting agents in Italy and did not conclusively prove the guilt against such persons. In fact, as noted in the impugned order, even the Deputy Director of DRI had also expressed his inability to provide information regarding the final outcome of criminal proceedings against such persons. Since the investigations with regard to alleged fraud committed in exportation of goods in the originating country, has not attained finality, it cannot be hypothetically concluded that the appellant had indulged into the activities of undervaluing the goods. Therefore, in our considered view, the present proceedings initiated against the appellant were premature and cannot be sustained. Further, in the statement recorded under summon, Shri K.M. Swamy, Director of the appellant had denied the fact regarding involvement of the intermediaries/indenting agents in purchases made by the appellants in respect of the disputed goods from the Italian suppliers. Furthermore, the investigations made by DRI did not produce any evidence of financial flow back through non-banking channels in low tax countries. Thus, under such circumstances, the charges of undervaluation cannot be leveled on the appellant.
The learned adjudicating authority has rejected the declared value in respect of the subject Bills of Entry under Section 14(1) ibid read with Rule 12 ibid and re-determined the assessable value under Section 14(1) ibid read with Rule 3(1) ibid, holding that sufficient evidence exists to show that actual invoice values were hidden from the Indian Customs authorities and manipulated invoices were presented for assessment purposes. We find that in support of such contentions, no credible evidences were produced by the department. Further, we also find that the procedures laid down under Rule 12 ibid have not been succinctly followed for rejection of the declared value. As per the statutory provisions, the proper officer should have reasonable doubt as to the transactional value on account of truth or accuracy of the value declared in relation to the imported goods and for that purpose, he must ask the importer of such goods further information which may include documents or evidence; and on (Assessment Year: 2014-15) receiving such information or in the absence of response from the importer, the proper officer has to apply his mind and decide whether or not reasonable doubt as to the truth or accuracy of the value so declared persists. When the doubt persists, then sub-rule (1) to Rule 3 will not be applicable and transaction value has to be determined by sequentially proceeding through Rules 4 to 9 of the Valuation Rules, 2007. The Hon'ble Supreme Court in the case of Century Metal Recycling (supra) has held that the procedures provided for rejection of the declared value under Rule 12 ibid was mandatory in nature and such statutory provisions are required to be strictly adhered to by the proper officer. In this case, it is an admitted fact on record that the mandates of Rule 12ibid read with Rules 4 to 9 ibid have not been complied with by the department. Thus, rejection of declared value is contrary to the statutory provisions and accordingly, redetermination of the alleged transaction value cannot stand for judicial scrutiny.
12. In view of the foregoing discussions and analysis, we do not find any merits in the impugned order dated 26.03.2018 passed by the learned Commissioner of Customs (NS-II), Nhava Sheva. Accordingly, after setting aside the same, we allow the appeal in favour of the appellant.” (Emphasis Supplied)
Thus, the CESTAT has held that the Note-Verbale only indicated 11. commencement of criminal proceedings against the indenting agents in Italy and did not conclusively prove the guilt against such persons. Further, there was no proof of under-invoicing of goods with the adjudicating authority. We note in the case before us, the Assessing Officer has also relied upon note Note-Verbale which has been held by CESTAT to be nothing more than a request for information which had not attained finality. There is nothing on record to support the findings of under-invoicing of marble imported by the Appellant. In the statements given by the director of the Appellant-company, the charge of under-invoicing was denied. The Appellant had also contended that the purchase price of marbles was higher than the base price and the weight of the marble was not under dispute. There is nothing on record that the quality of marble was different (Assessment Year: 2014-15) from what was stated in the invoice. We note that in the case of Mohan Thakur Vs. ACIT, CC-8(4), Mumbai [ITA No. 1434 to 1437/MUM/2018, dated 24/05/2021], while deleting the addition was made on the basis of information received from Australian Tax Authorities on account of non-corroboration of such information, the Mumbai Bench of the Tribunal has held as under 11. Upon careful consideration, we find that the addition is solely made on the basis of statement of the assessee‟s son before Australian Tax Authorities and affidavit by the assessee before them that fund found in possession of the son were arranged by assessee by hawala transaction. When confronted by the investigation department of the Revenue, the assessee has rebutted the above allegation. The rebuttal or refusal by the assessee has only been referred by the A.O. without bringing on record the actual rebuttal. There is absolutely no other material in the hand of the A.O. of proving the addition in the hands of the assessee. Despite the assessee‟s request, the copy of information received from Australian tax Authority has not been given to the assessee. In these circumstances, the addition made, which is based upon the information from a foreign source, without confronting the same to the assessee and without any corroborative material is not at all sustainable. The case laws referred by the ld. Counsel of the assessee as above are germane and support the case of the assessee. Since the addition is not at all sustainable as found by us hereinabove, the other aspects of the assessee‟s challenge to the addition is only of academic interest. Hence, we are not dealing with the same.
(Emphasis Supplied) 14. Similarly, in the case of M/s NITCO Ltd. Recondo Estate Vs. DCIT Central Circle-46, Mumbai, [ITA No. 2528 to 2531 & 2856 to 2858/Mum/2014, dated 18/12/2018], the Mumbai Bench of the Tribunal had deleted the addition made by the Assessing Officer only on the basis of show cause notice issued by the Department of Revenue Intelligence without any evidence or supporting documents 12 (Assessment Year: 2014-15) holding as under: “45. Grievance of Revenue in the a.Y.2010-11 pertains to deletion of addition of Rs.11,31,98,298/- on the basis of show-cause notice by Customs Department.
We have considered rival contentions and perused the record. In the course of assessment, AO observed that as per Show cause notice of Customs department, assessee undervalued the price of import & freight. Therefore, AO assumed that assessee had paid amount in Cash through hawala. Therefore, made addition.
By the impugned order, CIT(A) deleted the addition after observing as under:-
23.1 In the assessment order, there is no details as to how the figure of Rs. 11,31,98,298/- is arrived. No evidence brought on record to substantiate the allegation of either under invoicing or payment through hawala operator. No finding of Custom's Department is also bought on record. The appellant had shown that the materials were imported on CNF (Cost Net Freight) basis wherein the supplier had borne the freight charges and there is no liability in the hands of the importer i.e. the appellant and in support of its claim, had also submitted certain invoices. Considering the fact that there is nothing brought on record to show that the appellant company paid cash through hawala operators on account of undervaluation, no addition can be made on suspicion and guess work, therefore I hereby delete the addition of Rs.11,31,98,298/- made u/s 69Cof the Act
Revenue is in further appeal before us. We have considered rival contentions and found from record that during the year under consideration, the Department of Revenue Intelligence (DRI) carried out search action at various premises of assessee company and alleged that the company had made short payment of customs duty amounting to Rs.3,22,04,916/-. It was alleged that the assessee had taken services of Hawala Operator to make payment in cash. The Ld.AO also concluded that closing stock was undervalued by the assessee and thus made an addition of Rs. 11,31,98,298/-. (Assessment Year: 2014-15) 49. The main allegation is regarding the mis-declaration of freight expenses paid on import. However, in the assessee's case, the imports are on CNF (Cost Net Freight) basis i.e. the liability to pay freight is on the supplier of goods and therefore the assessee has no liability to pay freight. In light of this, the allegation of mis-declaration of freight is ill founded and unsustainable. By Virtue of Notification No. 82/2008- Customs dtd. 27/06/2008 issued by Department of Revenue, Ministry of Finance, Government of India certain exporter as mentioned in the said notification are not dumping the goods in India therefore import from these exporter does not attract Anti Dumping Duty. As per the notification if any company in India buys goods from Prestige General Trading FZE or Enterprise Trading FZE and in turn these two companies buys vitrified tiles from Foshan Chanchlng Oulia Construction Ceramics Co. Ltd., and Heyuan Wanfeng Ceramics Co. Ltd., does not tantamount to dumping in India and importer is not required to pay Anti Dumping Duty on import made from these parties. Since assessee was able to procure material from the above referred parties, assessee was exempt from payment of Anti Dumping duty on import of vitrified tiles. Due to the aforesaid exemption benefit assessee's case was under scrutiny by the department of Revenue Intelligence. On investigation Department of Revenue Intelligence alleged that assessee is procuring material from various companies located at China and claiming the benefit of exemption notification though those companies are not entitled. Further, during search procedure undertaken by Income Tax Department u/s 132 no incrementing papers were found by the Income Tax Department to prove that the transactions are not genuine.
Moreover, the AO made addition without any evidence and only on the basis of a show cause notice issued by the Department of Revenue Intelligence (DRI) without any evidence of supporting documents. It is law of land that additions made without any evidence are unsustainable. Accordingly, we do not find any infirmity in the order of CIT(A) for deleting the impugned addition.” (Emphasis Supplied)
15. In view of the above, we hold that addition of INR 39,12,584/- made by the Assessing Officer under Section 69C of the Act cannot be (Assessment Year: 2014-15) sustained in the facts and circumstances of the present case. Accordingly, the addition of INR 39,12,584/- is deleted. Ground No. 1 and 3 raised by the Appellant is allowed and therefore, Ground No. 4 is disposed of as being infructuous. Ground No. 2 raised by the Appellant, being descriptive/argumentative in nature, is also disposed off as being infructuous.
In result, the present appeal preferred by the Assessee is allowed.
Order pronounced on 28.06.2023.