ITO 1(2)(3), MUMBAI vs. MANGALAM DRUGS & ORGANICS LTD, MUMBAI

The brief facts pertaining to the issue under consideration – The AO during the course of assessment proceeding issued notice under section 133(6) of the Act to 23 parties from whom the assessee has made purchases on 20.03.2014. Out of the same notices issued to 7 parties were returned un-served and he purchases from these parties amounted to Rs. 22,50,43,538/-. In the parties from whom the replies are received, the AO found certain discrepancies with regard to 3 parties from whom the purchases were made by the assessee to the tune of Rs. 15,33,86,416/-. The AO therefore treated the total purchases from all the 10 parties totalling to Rs. 37,84,29,954/- as bogus and made addition accordingly. The details of the parties are as furnished below:

The AO while making the above addition did not accept the submission of the assessee that the notices under section 133(6) sent on 20.03.2014, did not give sufficient time for the parties to respond and therefore the addition cannot be made solely on that basis. The assessee raised the same plea before the CIT(A) stating that no reasonable opportunity was given to the assessee to respond the allegation that the assessee has booked bogus purchases from the parties who have not responded to the notice under section 133(6) of the Act. The assessee further submitted that the 133(6) notice was issued on 20.03.2014 to the parties and the assessment was framed on 29.03.2014 on the ground of non-service giving very little time for the assessee to respond. The assessee also submitted additional evidences before the CIT(A) giving details such as purchase bills, weighing bills, transport receipts, goods received note, purchase order, ledger copy, bank statement and Permanent M/s Mangalam Drugs & Organics Ltd. Account Number, etc. of each of the 10 parties. The CIT(A) called for a remand report from the AO in this regard. The AO in the remand proceedings did not accept the additional evidences submitted by the assessee stating that notices under section 133(6) were issued to the parties on 20.02.2014 and not on 20.03.2014 as alleged by the assessee and therefore the details of parties submitted as additional evidence cannot be accepted. However during the course of remand proceedings examined the details submitted by the assessee from time to time. The AO once again issued notice under section 133(6) to all the 10 parties asking them to furnish the various details. The AO subsequently filed a remand report identifying certain discrepancies in the details furnished by the parties to the AO and also held that the entire details have not been furnished. Accordingly, the AO in the remand report stated that the purchase made from these parties have not been properly substantiated and that the findings of the AO in the original assessment proceeding had to be upheld.

The CIT(A) perused the remand report of the AO and the additional evidences filed by the assessee. The CIT(A) also called on the assessee to furnish the gross profit of last five years with and without the addition made by the AO towards the alleged bogus purchases. After perusing the additional evidences and other details furnished by the assessee the CIT(A) gave relief to the assessee on the ground that –

The CIT(A) also relied on various judicial pronouncements and considering the facts deleted the addition made by the AO amounting to Rs. 37,84,29,954/-. The revenue is in appeal against the order of the CIT(A).

The ld. DR made a petition for admission of additional evidence containing the following documents M/s Mangalam Drugs & Organics Ltd. “1. Report of the Addl. CIT, Range-1(2), Mumbai dated 16.03.2020 Enclosing a detailed report on the findings based on enquiries conducted in the case of the assessee (Total Pages: 26)

The ld. AR strongly objected the admission of the additional evidence stating that the survey was conducted on 27.08.2013 and the assessment under section 143(3) in assessee's case was completed on 29.03.2014. The ld AR argued that the findings during the course of survey was very much available before the completion of the assessment proceedings and that the AO has not mentioned in the assessment order has not recorded anything in this regard. The ld AR further argued that even during the remand proceedings the AO has not considered the findings in survey report and has prepared the remand report only based on the documents submitted and the response to notice under section 133(6). The AO also argued that the M/s Mangalam Drugs & Organics Ltd. conditions for admission of additional evidence is not fulfilled in this case and therefore the additional evinces cannot be admitted.

We heard the parties and perused the materials on record with regard to the admission of additional evidence. The documents submitted as additional evidence by the revenue relate to the survey conducted in the premises of the assessee on 27.08.2013. It is relevant to mention here that the assessment under section 143(3) is completed in assessee's case vide order dated 29.03.2014 and that there is no mention about the survey. The CIT(A) in the appellate order or the AO in the remand report also have not stated anything relating the survey and the fact that there was a survey in assessee's case has also been not mentioned except as a reference as assessee's submission. In the report by the Addl.CIT Range 1(2) Mumbai dated 16.03.2020 which is now submitted as additional evidence, containing the details and enquiries of survey, clearly mentions the fact that the Survey Reports were handed over to the AO of the assessee on 28.03.2014. It is also mentioned therein that even during the appellate proceedings the findings of the survey have not been examined. The main contention of the revenue with regard to the admission of additional evidence is that the documents submitted by assessee before the CIT(A) are not found during the course of survey and they are not genuine. However, the CIT(A) during appellate proceedings has verified the impugned documents and has not recorded any adverse findings on the genuineness of the said documents. During the remand proceedings, the parties directly submitted the details called for by the AO, about which certain discrepancies were recorded by the AO. Though the survey report was very much available, the AO relied only on the documents submitted by the parties and the assessee. The AO during remand proceedings has only recorded certain discrepancies in the documents and about few documents not being made available. The assessee was M/s Mangalam Drugs & Organics Ltd. never confronted with the details found in hard disc impounded during the survey, during the proceedings before the lower authorities i.e. assessment proceedings, remand proceedings and appellate proceedings though the same was very much available with the lower authorities from 28.03.2014 as per revenue's own admission. Therefore the reason stated by the revenue that there was delay in collating the findings of the survey due to voluminous data is factually not correct and is contrary to the report filed by the revenue itself. From the facts elaborated herein above it is clear that the assessment from which the present appeal is emanating, is not based on the survey conducted in assessee's case and that survey findings have not been considered as part of the assessment. Therefore the survey and the findings of the survey are not as part of the present appeal filed by the revenue since the issue contented is not arising as a result of survey but as a result of a regular assessment under section 143(3). In view of these discussions in our considered view, there is no reason for us to admit the additional evidence in the form of details, reports and inquiries during the survey which is not considered by the revenue in assessee's case during assessment as well as appellate proceedings. Hence the additional evidences submitted by the revenue are not considered for adjudication.

The main argument of the ld DR is that the CIT(A) has not considered the discrepancies identified by the AO during the remand proceedings such as the Octroi receipts not being submitted, no credible transportation documents were available, only part submission of details were submitted etc. The ld DR further argued that the CIT(A) while allowing the appeal has not recorded any findings to each of the 10 parties and has given relief by recording some general remarks. The ld DR also furnished a written submission containing the discrepancies found in the paper book submitted by the assessee M/s Mangalam Drugs & Organics Ltd. “(i) False Claim Regarding Octroi Receipts: The assessee has claimed, as also noted in the opening paragraph at page no. 23 of the CIT(A)'s order, that octroi receipts are available at PB No. 1, page 88 and PB No. 2, page 413. However, a perusal of these pages clearly demonstrates that the document at P13-1, page 88 is merely a CENVAT Credit Register which contains no reference to any octroi payments. Similarly, PB-2, page 413 comprises only transporter bills, not octroi receipts. This substantiates the Assessing Officer's finding that no octroi receipts were produced by the assessee in support of its claim, thereby rendering the assessee's contention patently false. (Annexure A)

On merits the ld. DR submitted that the assessee failed to produce the necessary documents and the parties to whom 133(6) notice was issued also did not respond quoting the reason that there is insufficiency of time. The ld. DR further submitted that the AO in the remand report has clearly given the finding that the parties from whom details were sought for did not produce all the necessary details substantiating the purchases. The ld. DR also submitted that the CIT(A) has given relief to the assessee by stating that if the addition towards the bogus purchases is sustained, the GP ratio of the assessee would be distorted and that the said finding is based on the details submitted by the assessee itself and not examined by the CIT(A). It is also argued that the finding of the CIT(A) with regard to no irregularities have been reported by Excise / VAT Department is factually incorrect since the information has been received from the Sales Tax Department based on which the entire proceedings against the assessee is initiated. Accordingly, the ld. Dr supported the order of the AO.

The ld. AR submitted that during the assessment proceedings the AO has issued the notices under section 133(6) of the Act to the vendors on 20.03.2014 which the AO himself has admitted in the assessment order. The ld. AR further submitted that the AO during remand proceedings refused to accept additional evidence stating that there is a notice issued under section 133(6) of the Act on 20.02.2014 which is not correct for the reason that the assessee is not aware of any such notice being issued. The ld. AR submitted that the CIT(A) has called for a M/s Mangalam Drugs & Organics Ltd. remand report and during the remand proceedings the AO once again issued notice under section 133(6) on the vendors to which 8 parties have responded. The ld AR brought to our attention that the AO in the notice under section 133(6) during remand proceedings has mentioned AY erroneously as AY 2010-11 and that the parties still responded to the AO with the relevant details. The ld. AR further brought to our attention that the AO issued a 3rd notice under section 133(6) with correct AY and that the parties responded once again. Therefore, the ld. AR argued that the identity of the parties cannot be questioned after receiving response to 3 notices and that the parties have submitted all the relevant details required by the AO. The ld. AR further argued that the assessee has completely co-operated during the remand proceeding and that necessary evidences to substantiate the purchases were made available. The ld. AR submitted that since the AO did not accept the additional evidence during remand proceedings, the CIT(A) himself had examined the various details submitted by the assessee and based on the factual finding has allowed the appeal. The ld. AR further submitted that the CIT(A) has verified the GP ratio as an additional factor to give relief to the assessee and that the main basis on which the relief was given was based on the various documentary evidences substantiating the purchases. The ld. AR during the course of hearing took us through the sample of documentary evidences submitted before the lower authorities which is in the form of Paper Book containing 584 pages.

We heard the parties and perused the material on record. During the assessment proceedings the AO in order to verify the purchases, issued notices under section 133(6) on a sample basis to 23 parties. Out of the 23 parties 7 parties did not respond to the notice and the AO recorded certain discrepancies in the reply filed by 3 parties. Therefore the AO treated the purchases made from these parties a M/s Mangalam Drugs & Organics Ltd. non-genuine to make an addition of Rs.37,84,29,954. During appellate proceedings the CIT(A) admitted additional evidences submitted by the assessee as listed below

The assessee also furnished the below listed documents during appellate proceedings as additional evidence:

The CIT(A), called for a remand report from the AO. The AO during the course of remand proceedings called for various details with respect to the 7 parties who have not responded to the notice under section 133(6) during original M/s Mangalam Drugs & Organics Ltd. assessment proceedings. Accordingly the assessee filed further details in terms of purchase orders, purchase bills, transport bills, Octroi receipts wherever applicable, stock register, ledger details, bank statements, latest address and PAN of parties, month wise break up of purchases etc. The AO served two notices under section 133(6) to these 7 parties and replies have been filed on both the occasions by the parties. However the AO in the remand report held that the additions are to be sustained since there are some discrepancies in the details furnished directly by the parties. The AO did not accept the additional evidences by the assessee. The CIT(A) after considering the details furnished by the assessee from time to time and also the details furnished by the parties, held that the purchases cannot be held as non- genuine. The basis on which the CIT(A) deleted the additions made by the AO are elaborated in the earlier part of this order.

Generally in the case of bogus purchases, the allegations of the revenue has been that assessee has accounted for fictitious purchases where in reality there is no actual goods or services are received. In such a case the entire purchases is under question and the onus is fully on the assessee to prove with sufficient documentary evidences such as (i) The identity of the parties – Through confirmations, address, PAN etc of the parties (ii) The actual movement of goods / services – Invoices, transportation bills, Delivery challan, Goods Received Note, Stock register etc. (iii) Proof of payment – Bank statements etc.

The courts have been consistently holding that when the assessee has discharged the onus of establishing the genuineness of the purchases by producing the relevant documents, no addition can be made towards bogus M/s Mangalam Drugs & Organics Ltd. purchases. In assessee's case from the documents filed by the assessee before the lower authorities (as listed here in above) and from the paper book containing 584 pages submitted to us, it is clear that the assessee has discharged the onus of providing all the documentary evidences from its end. We notice that the AO in the report has recorded certain discrepancies with regard to the documents directly submitted by the parties and that no adverse findings are recorded with respect to documents submitted by the assessee. Therefore in our considered view, the assessee has discharged the onus and that the purchases cannot be held to non-genuine merely for the reason that some of the details furnished by the parties have some discrepancies which is beyond assessee's control. With respect to parties who have not responded, the CIT(A) has given a finding that the purchases are funded by bank after proper due diligence. In any case the assessee has furnished all the relevant documents such as invoices, GRN, transport bills, computerised weighing bridge slip etc. It is a settled position that mere non-response to notice under section 133(6) cannot be a reason for treating the transaction as bonus, when the assessee has otherwise discharged the onus.

In the written submissions the ld DR highlighted certain discrepancies in the documentary evidences as mentioned in the CIT(A)'s order as compared to the paper book now submitted during the proceedings before the Tribunal. In this regard we notice that the page numbers of the paper book submitted before CIT(A) is not same as page numbers in the paper book submitted before us. Further given the quantum of addition made towards the alleged bogus purchases from Krishna Structures Steel (India) Ltd and Jay Industries cannot be confirmed merely based on the wrong reference to the page numbers in the different paper books submitted. Hence we are unable appreciate the contentions M/s Mangalam Drugs & Organics Ltd. made by the ld DR that the CIT(A) has not examined the paper books properly before giving relief.

The ld DR submitted that the CIT(A)'s finding that the AO without rejecting the sales cannot hold the purchases is not correct in the light of the latest decision of the Hon'ble Bombay High Court in the case of PCIT vs Kanak Impex (India) Ltd (ITA No.791 of 2021 dated 03.03.2025). In our considered view, the facts considered in the said case are distinguishable. The Hon'ble High Court in the said case had dealt with the fact where the goods are purchased from grey market using cash against which purchase bills were obtained from a different party. The ground on which the Hon'ble High Court held that rejecting sales is not required is that in the said case the source for the real purchase from grey market is unexplained and therefore the Hon'ble High Court held that adding only the profit element in incorrect. The decision of the Hon'ble High Court in the said case was also on the ground that the assessee has not discharged the onus of proving genuineness, has been non-cooperative during the assessment proceedings. In assessee's case, the assessee's contention is that the purchases are genuine and the assessee has discharged the onus by producing the necessary evidences to substantiate the claim. The assessee has well cooperated with the proceedings before the lower authorities which fact has been recorded by the CIT(A) in the appellate order. Therefore in our considered view, the decision of the Hon'ble High Court in the case of Kanak Impex (India) Ltd (supra) is not applicable to assessee's case.

In view of these discussions and considering the facts peculiar to assessee's case we are of the considered view that there is no infirmity in the M/s Mangalam Drugs & Organics Ltd. order of the CIT(A) in deleting the addition made towards alleged bogus purchases.

In result, appeal of the revenue is dismissed.