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Income Tax Appellate Tribunal, MUMBAI BENCH “E” MUMBAI
Before: SHRI VIKAS AWASTHY & SHRI OM PRAKASH KANT
PER OM PRAKASH KANT, AM
This appeal by the assessee is directed against order dated 16.06.2022 passed by the Ld. Commissioner of Income-tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2017-18, raising following grounds :
The Byke Hospitality Ltd. 2 ITA No. 1954/M/2022
Disallowance of 'Sales Promotion Expenses amounting to 1. Disallowance of 'Sales Promotion Expenses amounting to 1. Disallowance of 'Sales Promotion Expenses amounting to Rs. 82,56,879/ Rs. 82,56,879/-paid to Goldmoon Commodeal Private paid to Goldmoon Commodeal Private Limited, whereas as per the facts & circumstances it should Limited, whereas as per the facts & circumstances it should Limited, whereas as per the facts & circumstances it should be allowed. 2. Disallowance of 'Sales Promotion Expenses' amounting to 2. Disallowance of 'Sales Promotion Expenses' amounting to 2. Disallowance of 'Sales Promotion Expenses' amounting to Rs. 82,56,879/ Rs. 82,56,879/- is bad in law because details of said is bad in law because details of said expenses were expenses were submitted during assessment proceedings us submitted during assessment proceedings us 143(3), being completed by order dated 06.09.2019 and no 143(3), being completed by order dated 06.09.2019 and no 143(3), being completed by order dated 06.09.2019 and no additions for the same has been made in the said additions for the same has been made in the said additions for the same has been made in the said proceeding. 3. Issuance of penalty notice u/s 274 r.w.s. 270A of the 3. Issuance of penalty notice u/s 274 r.w.s. 270A of the 3. Issuance of penalty notice u/s 274 r.w.s. 270A of the Income Tax Act. Income Tax Act. 2. Briefly stated, fa Briefly stated, facts of the case are that the assessee was cts of the case are that the assessee was engaged in the business of hotel and tourism. In the year under engaged in the business of hotel and tourism. In the year under engaged in the business of hotel and tourism. In the year under consideration, the assessee filed return of income on 01.11.2017 consideration, the assessee filed return of income on 01.11.2017 consideration, the assessee filed return of income on 01.11.2017 ₹5,69,92,460/-. declaring declaring total total income income of of . The The assessment assessment completed u/s 143(3) of the completed u/s 143(3) of the Income-tax Act, 1961 (in short ‘the Act’) tax Act, 1961 (in short ‘the Act’) was completed on 06.09.2019 determining total income at was completed on 06.09.2019 determining total income at was completed on 06.09.2019 determining total income at ₹6,81,08,542/-. Subsequently, on receipt of information that the . Subsequently, on receipt of information that the . Subsequently, on receipt of information that the assessee received accommodation entries for bogus expenses, the assessee received accommodation entries for bogus expenses, the assessee received accommodation entries for bogus expenses, the assessment was reopened by wa assessment was reopened by way of issue of notice u/s 148 of the y of issue of notice u/s 148 of the Act dated 28.03.2021. During the course of reassessment Act dated 28.03.2021. During the course of reassessment Act dated 28.03.2021. During the course of reassessment
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proceedings, the assessee was asked to justify the expenses claimed proceedings, the assessee was asked to justify the expenses claimed proceedings, the assessee was asked to justify the expenses claimed of ₹82,56,879/- in respect of invoices issued by Goldmoon in respect of invoices issued by Goldmoon in respect of invoices issued by Goldmoon Commodeal Pvt. Ltd. The assessee submi Commodeal Pvt. Ltd. The assessee submitted copy of the bank tted copy of the bank statement showing payment to said party and contended that statement showing payment to said party and contended that statement showing payment to said party and contended that expenses have been incurred genuinely. The Assessing Officer expenses have been incurred genuinely. The Assessing Officer expenses have been incurred genuinely. The Assessing Officer rejected the claim of the assessee of incurring the sales promotion rejected the claim of the assessee of incurring the sales promotion rejected the claim of the assessee of incurring the sales promotion expenses of ₹82,56,879/ 82,56,879/-. In respect of the invoices raised by the voices raised by the Goldmoon Commodeal Pvt. Ltd. Goldmoon Commodeal Pvt. Ltd. the Assessing Officer observed the Assessing Officer observed as under:
“5.2 Information was received from the Investigation Wing of 5.2 Information was received from the Investigation Wing of 5.2 Information was received from the Investigation Wing of the Department that a Search & Seizure/Survey us. the Department that a Search & Seizure/Survey us. the Department that a Search & Seizure/Survey us. 132/133A of the LT Act, 1961 was carried out at the 132/133A of the LT Act, 1961 was carried out at the 132/133A of the LT Act, 1961 was carried out at the residential and office premises of Shri Kamal Kumar Jain, residential and office premises of Shri Kamal Kumar Jain, residential and office premises of Shri Kamal Kumar Jain, Shri Deepak Upadhyay and Ranjit Singh on 21.05.2018 and Shri Deepak Upadhyay and Ranjit Singh on 21.05.2018 and Shri Deepak Upadhyay and Ranjit Singh on 21.05.2018 and during during during the the the course course course of of of Search/Survey Search/Survey Search/Survey operation operation operation huge incriminating documents/papers were found. They have incriminating documents/papers were found. They have incriminating documents/papers were found. They have control over a number of entities which control over a number of entities which were used for were used for providing bogus bills to beneficiaries in form of bogus providing bogus bills to beneficiaries in form of bogus providing bogus bills to beneficiaries in form of bogus purchases, services, sales etc. Shri Kamal Jain, Deepak purchases, services, sales etc. Shri Kamal Jain, Deepak purchases, services, sales etc. Shri Kamal Jain, Deepak Upadhaya and Ranjit Kumar Singh have explained the Upadhaya and Ranjit Kumar Singh have explained the Upadhaya and Ranjit Kumar Singh have explained the modus operandi adopted by them to facilitate the Bogus modus operandi adopted by them to facilitate the Bogus modus operandi adopted by them to facilitate the Bogus Billing Billing which which clearly clearly proved p roved that that they they have have provided/facilitated in large scale of bogus bills to different provided/facilitated in large scale of bogus bills to different provided/facilitated in large scale of bogus bills to different
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beneficiaries in lieu of commission. Shri Kamal Kumar Jain beneficiaries in lieu of commission. Shri Kamal Kumar Jain beneficiaries in lieu of commission. Shri Kamal Kumar Jain has categorically admitted that all these Bank accounts has categorically admitted that all these Bank accounts has categorically admitted that all these Bank accounts belong to different entities/concerns controlled and man belong to different entities/concerns controlled and man belong to different entities/concerns controlled and managed by him and these are shell entities used for providing bogus by him and these are shell entities used for providing bogus by him and these are shell entities used for providing bogus billings. Goldmoon Commodeal Pvt. Ltd is one such entity billings. Goldmoon Commodeal Pvt. Ltd is one such entity billings. Goldmoon Commodeal Pvt. Ltd is one such entity established established established with with with the the the sole sole sole purpose purpose purpose of of of providing providing providing accommodation entry of bogus billing. accommodation entry of bogus billing.
5.3 The assessee has made transactions amounting 5.3 The assessee has made transactions amounting 5.3 The assessee has made transactions amounting to Rs. 82,56,879/- with Goldmoon Commodeal Pvt. Ltd under the with Goldmoon Commodeal Pvt. Ltd under the head sales promotion expenses. The onus to prove that such head sales promotion expenses. The onus to prove that such head sales promotion expenses. The onus to prove that such expenses in the nature of sales promotion expenses are expenses in the nature of sales promotion expenses are expenses in the nature of sales promotion expenses are genuine in nature lies on the assessee but it has not been genuine in nature lies on the assessee but it has not been genuine in nature lies on the assessee but it has not been able to discharge su able to discharge such burden. It is also evident that the ch burden. It is also evident that the asseessee did not make any effort to convert the finding asseessee did not make any effort to convert the finding asseessee did not make any effort to convert the finding recorded by the Investigation Wing. In its submissions, the recorded by the Investigation Wing. In its submissions, the recorded by the Investigation Wing. In its submissions, the assessee alleged that all transactions made with Goldmoon assessee alleged that all transactions made with Goldmoon assessee alleged that all transactions made with Goldmoon Commodeal Pvt. Ltd were in the nature of e Commodeal Pvt. Ltd were in the nature of expenses and has xpenses and has submitted bank statements to show that all the expenses submitted bank statements to show that all the expenses submitted bank statements to show that all the expenses were made through banking channels. If a transaction was were made through banking channels. If a transaction was were made through banking channels. If a transaction was undertaken through banking channel, it does not provide any undertaken through banking channel, it does not provide any undertaken through banking channel, it does not provide any sanctity that the transactions are true and correct.The sanctity that the transactions are true and correct.The sanctity that the transactions are true and correct.The contention that the payments are made by account payee that the payments are made by account payee that the payments are made by account payee cheque is not a fool proof method of substantiating the cheque is not a fool proof method of substantiating the cheque is not a fool proof method of substantiating the assessee's claim. assessee's claim.
5.4 It has also submitted invoices to prove the legitimacy of 5.4 It has also submitted invoices to prove the legitimacy of 5.4 It has also submitted invoices to prove the legitimacy of such transactions .The production of invoice is of no help to such transactions .The production of invoice is of no help to such transactions .The production of invoice is of no help to the assessee, the assessee, since in the activity of accommodation entry, since in the activity of accommodation entry, such documents are meticulously maintained both by the such documents are meticulously maintained both by the such documents are meticulously maintained both by the
The Byke Hospitality Ltd. 5 ITA No. 1954/M/2022
entry provider and entry seeker. It is also not important entry provider and entry seeker. It is also not important entry provider and entry seeker. It is also not important whether the amount is small or big and whether the whether the amount is small or big and whether the whether the amount is small or big and whether the asseessee is having loss or profit. There may asseessee is having loss or profit. There may be number of be number of reasons for seeking the accommodation entry as it leads to reasons for seeking the accommodation entry as it leads to reasons for seeking the accommodation entry as it leads to generation of the cash in the hands of assessee. The generation of the cash in the hands of assessee. The generation of the cash in the hands of assessee. The contention of the assessee cannot be accepted when the contention of the assessee cannot be accepted when the contention of the assessee cannot be accepted when the nature of the entity providing the services has been accepted nature of the entity providing the services has been accepted nature of the entity providing the services has been accepted as Bogus. It i as Bogus. It is an established fact that entity was s an established fact that entity was established to give accommodation entries to clients.The established to give accommodation entries to clients.The established to give accommodation entries to clients.The make-believe transactions as presented by the assessee believe transactions as presented by the assessee believe transactions as presented by the assessee cannot be blindly accepted in view of the above facts. Truth cannot be blindly accepted in view of the above facts. Truth cannot be blindly accepted in view of the above facts. Truth or genuineness of such transactions must prev or genuineness of such transactions must prevail over the ail over the smoke screen, created by way of pre smoke screen, created by way of pre-mediated series of mediated series of steps taken by the assessee, with a view to imparting a color steps taken by the assessee, with a view to imparting a color steps taken by the assessee, with a view to imparting a color of genuineness and character of commercial nature, to such of genuineness and character of commercial nature, to such of genuineness and character of commercial nature, to such transactions. transactions.
5.5 It may be appreciated that after making independe 5.5 It may be appreciated that after making independe 5.5 It may be appreciated that after making independent enquiries, findings of Investigation Wing and details enquiries, findings of Investigation Wing and details enquiries, findings of Investigation Wing and details submitted by the assessee, I have come to conclusion submitted by the assessee, I have come to conclusion submitted by the assessee, I have come to conclusion that the assessee had not made such expense and only the assessee had not made such expense and only the assessee had not made such expense and only accommodation bills were taken in order to inflate the accommodation bills were taken in order to inflate the accommodation bills were taken in order to inflate the expenses and bring down the profitabil expenses and bring down the profitability thereby avoiding ity thereby avoiding the payment of taxes. Thus, from the above analysis of facts, the payment of taxes. Thus, from the above analysis of facts, the payment of taxes. Thus, from the above analysis of facts, it is crystal clear that the expenses made by the assessee it is crystal clear that the expenses made by the assessee it is crystal clear that the expenses made by the assessee from the above party and claimed as expenses in its profit from the above party and claimed as expenses in its profit from the above party and claimed as expenses in its profit and loss account are not genuine. and loss account are not genuine.
5.6 The assessee was 5.6 The assessee was asked to show cause vide notice asked to show cause vide notice dated. 16.03.2022 along with a copy of the draft assessment dated. 16.03.2022 along with a copy of the draft assessment dated. 16.03.2022 along with a copy of the draft assessment
The Byke Hospitality Ltd. 6 ITA No. 1954/M/2022
order proposing the modifications to income why the order proposing the modifications to income why the order proposing the modifications to income why the assessment should not be completed as per the draft assessment should not be completed as per the draft assessment should not be completed as per the draft assessment order. The reply of the assessee made on assessment order. The reply of the assessee made on assessment order. The reply of the assessee made on 17.03.2022 is considered but not accepted in view of the 22 is considered but not accepted in view of the 22 is considered but not accepted in view of the facts and discussion as above. In the light of the discussions facts and discussion as above. In the light of the discussions facts and discussion as above. In the light of the discussions and reasoning provided in the preceding paras, the claim of and reasoning provided in the preceding paras, the claim of and reasoning provided in the preceding paras, the claim of expenditure on sales promotion expense made to Goldmoon expenditure on sales promotion expense made to Goldmoon expenditure on sales promotion expense made to Goldmoon Commodeal Pvt. Ltd by the as Commodeal Pvt. Ltd by the assessee is not found sessee is not found satisfactory. Therefore, an amount of Rs. 82,56,879/ satisfactory. Therefore, an amount of Rs. 82,56,879/ satisfactory. Therefore, an amount of Rs. 82,56,879/- claimed by the assessee as expenses is treated as Bogus claimed by the assessee as expenses is treated as Bogus claimed by the assessee as expenses is treated as Bogus expenses and is hereby disallowed and added back to the expenses and is hereby disallowed and added back to the expenses and is hereby disallowed and added back to the total income of the assessee. total income of the assessee. Penalty proceeding us.270A of the IT Act Penalty proceeding us.270A of the IT Act, 1961 is hereby , 1961 is hereby initiated initiated separately for separately for under-reporting under reporting of of income income in in consequence of misreporting of income. consequence of misreporting of income.” 3. On On On further further further appeal, appeal, appeal, the the the Ld. Ld. Ld. CIT(A) CIT(A) CIT(A) also also also upheld upheld upheld the the the disallowance observing as under: disallowance observing as under:
“4.1 Ground No. 1 & 2 relate to disallowance of sales 4.1 Ground No. 1 & 2 relate to disallowance of sales 4.1 Ground No. 1 & 2 relate to disallowance of sales promotion expenses of Rs. 82,56,879/ otion expenses of Rs. 82,56,879/-. During the year . During the year under consideration, the appellant claimed sales promotion under consideration, the appellant claimed sales promotion under consideration, the appellant claimed sales promotion expenses of Rs. 21,59,51,870/ expenses of Rs. 21,59,51,870/- on a/c of gifts, promotional on a/c of gifts, promotional vouchers, publications, events, etc. Out of this expenditure, vouchers, publications, events, etc. Out of this expenditure, vouchers, publications, events, etc. Out of this expenditure, the appellant has shown the appellant has shown payment of Rs. 82,56,879/ payment of Rs. 82,56,879/- to Goldmoon Commodeal Pvt. Ltd. (GPL) and in support of the Goldmoon Commodeal Pvt. Ltd. (GPL) and in support of the Goldmoon Commodeal Pvt. Ltd. (GPL) and in support of the claim, the appellant argued that invoice for the same had claim, the appellant argued that invoice for the same had claim, the appellant argued that invoice for the same had been issued by GCPL and payment after TDS thereon was been issued by GCPL and payment after TDS thereon was been issued by GCPL and payment after TDS thereon was
The Byke Hospitality Ltd. 7 ITA No. 1954/M/2022
made through banking channel. All these contentions of th made through banking channel. All these contentions of th made through banking channel. All these contentions of the appellant were duly considered and a reasoned finding on appellant were duly considered and a reasoned finding on appellant were duly considered and a reasoned finding on each contention was given by the AO in the assessment each contention was given by the AO in the assessment each contention was given by the AO in the assessment order while disallowing this expenditure. During the order while disallowing this expenditure. During the order while disallowing this expenditure. During the appellate proceedings also, the appellant submits the same appellate proceedings also, the appellant submits the same appellate proceedings also, the appellant submits the same argument but did not submit any argument but did not submit any documentary evidence in documentary evidence in support of services rendered by GCPL for making payment support of services rendered by GCPL for making payment support of services rendered by GCPL for making payment on a/c of Sales promotion expenses, which is the primary on a/c of Sales promotion expenses, which is the primary on a/c of Sales promotion expenses, which is the primary condition to justify the sale promotion expenses. Mere filing condition to justify the sale promotion expenses. Mere filing condition to justify the sale promotion expenses. Mere filing of copy of ledger, tds certificates, invoice copy and ba of copy of ledger, tds certificates, invoice copy and ba of copy of ledger, tds certificates, invoice copy and bank statement can't prove the service rendered by GCPL. As statement can't prove the service rendered by GCPL. As statement can't prove the service rendered by GCPL. As pointed out by the AO in assessment order that these pointed out by the AO in assessment order that these pointed out by the AO in assessment order that these documents documents documents are are are maintained maintained maintained meticulously meticulously meticulously in in in case case case of of of accommodation entries by the entry provider and entry accommodation entries by the entry provider and entry accommodation entries by the entry provider and entry seeker. Further, the invoices show that it seeker. Further, the invoices show that it relates to charges relates to charges towards towards towards advertising advertising advertising & & & branding branding branding services services services but but but no no no details/samples of such advertisement/branding activities details/samples of such advertisement/branding activities details/samples of such advertisement/branding activities are enclosed with the invoices. Also, the payment through are enclosed with the invoices. Also, the payment through are enclosed with the invoices. Also, the payment through banking channel is not sacrosanct and doesn't prove the banking channel is not sacrosanct and doesn't prove the banking channel is not sacrosanct and doesn't prove the services rendered services rendered and it's genuineness. The appellant further and it's genuineness. The appellant further argued argued argued that that that the the the search/survey search/survey search/survey was was was conducted conducted conducted on on on 21.05.2018 i.e. after the completion of financial year, 21.05.2018 i.e. after the completion of financial year, 21.05.2018 i.e. after the completion of financial year, therefore, nobody can assume that party is bogus. In this therefore, nobody can assume that party is bogus. In this therefore, nobody can assume that party is bogus. In this regard, the AO has categorically mentioned the mod regard, the AO has categorically mentioned the mod regard, the AO has categorically mentioned the modus operandi in his order and this finding was given after operandi in his order and this finding was given after operandi in his order and this finding was given after investigation investigation investigation of of of the the the investigation investigation investigation wing wing wing as as as well well well as as as examination of the information by AO. Further, the expenses examination of the information by AO. Further, the expenses examination of the information by AO. Further, the expenses have been claimed by the appellant and therefore, primary have been claimed by the appellant and therefore, primary have been claimed by the appellant and therefore, primary onus was on the appellant to onus was on the appellant to rebut the finding of the AO by rebut the finding of the AO by
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furnishing sufficient documentary evidences. Especially in a furnishing sufficient documentary evidences. Especially in a furnishing sufficient documentary evidences. Especially in a situation where the entry provider himself made a statement situation where the entry provider himself made a statement situation where the entry provider himself made a statement during search/survey operation that it runs various entities during search/survey operation that it runs various entities during search/survey operation that it runs various entities including GCPL for providing accommodation including GCPL for providing accommodation entries, the entries, the more stringent onus lies with the appellant to prove the more stringent onus lies with the appellant to prove the more stringent onus lies with the appellant to prove the services rendered by such entities for sales promotion. services rendered by such entities for sales promotion. services rendered by such entities for sales promotion.
4.1.2 Further, it is ascertained from the re 4.1.2 Further, it is ascertained from the re-assessment order assessment order that the assessment was re that the assessment was re-opened by issuing notice us 148 opened by issuing notice us 148 of the Act dated 28.04.2021 on the specific information from t dated 28.04.2021 on the specific information from t dated 28.04.2021 on the specific information from Investigation Investigation Investigation Wing Wing Wing that that that the the the appellant appellant appellant had had had obtained obtained obtained accommodation bills from a company namely CPL, which accommodation bills from a company namely CPL, which accommodation bills from a company namely CPL, which was unearthed during the search/survey operation on was unearthed during the search/survey operation on was unearthed during the search/survey operation on 21.05.2018 at the residential and office premise 21.05.2018 at the residential and office premise 21.05.2018 at the residential and office premises of Shri Kamal Kumar Jain, Shri Deepak Upadhyay and Ranjit Kamal Kumar Jain, Shri Deepak Upadhyay and Ranjit Kamal Kumar Jain, Shri Deepak Upadhyay and Ranjit Singh. Therefore, the appellant's plea that the case was Singh. Therefore, the appellant's plea that the case was Singh. Therefore, the appellant's plea that the case was reopened on the basis of general information is not correct. reopened on the basis of general information is not correct. reopened on the basis of general information is not correct. Further, this re Further, this re-opening was made within four years from the opening was made within four years from the end of the assess end of the assessment year and therefore, it doesn't cast ment year and therefore, it doesn't cast upon any responsibility on AO to establish the reason on upon any responsibility on AO to establish the reason on upon any responsibility on AO to establish the reason on account of the failure on the part of the assessee. So the account of the failure on the part of the assessee. So the account of the failure on the part of the assessee. So the appellant plea that no addition was made in the assessment appellant plea that no addition was made in the assessment appellant plea that no addition was made in the assessment order us 143(3) of the Act even though d order us 143(3) of the Act even though details of sale etails of sale promotion expenses to GCPL were available with the A promotion expenses to GCPL were available with the A promotion expenses to GCPL were available with the A during original assessment proceedings, doesn't debar the A during original assessment proceedings, doesn't debar the A during original assessment proceedings, doesn't debar the A for reopening the assessment and making the addition on for reopening the assessment and making the addition on for reopening the assessment and making the addition on receipt of specific information from Investigation Wing. receipt of specific information from Investigation Wing. receipt of specific information from Investigation Wing.
4.1.3 The appel 4.1.3 The appellant has also raised the issue of principles of lant has also raised the issue of principles of natural justice but failed to specify about violation of natural justice but failed to specify about violation of natural justice but failed to specify about violation of
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principle principle principle of of of natural natural natural justice justice justice in in in this this case. this case. case. From From From the the the reassessment reassessment reassessment order, order, order, I I I find find find that that that notices notices notices u/s u/s u/s 148/143(2)/142(1) of the Act were issued in time and 148/143(2)/142(1) of the Act were issued in time and 148/143(2)/142(1) of the Act were issued in time and appellant's objection was duly disposed off before completing pellant's objection was duly disposed off before completing pellant's objection was duly disposed off before completing the re-assessment. Also, the AO has issued specific notice assessment. Also, the AO has issued specific notice assessment. Also, the AO has issued specific notice w.r.t. sales promotion expenses and the written reply of the w.r.t. sales promotion expenses and the written reply of the w.r.t. sales promotion expenses and the written reply of the appellant has been duly considered in the re appellant has been duly considered in the re-assessment assessment order. Further, the order. Further, the AO has elaborately given his finding on AO has elaborately given his finding on each contention of the appellant, which make the re each contention of the appellant, which make the re each contention of the appellant, which make the re- assessment order speaking in nature. In view of these facts, assessment order speaking in nature. In view of these facts, assessment order speaking in nature. In view of these facts, the contention of the appellant about violation of natural the contention of the appellant about violation of natural the contention of the appellant about violation of natural justice is rejected. justice is rejected.
4.1.4 During the appell 4.1.4 During the appellate proceedings, the appellant has ate proceedings, the appellant has cited several case laws of jurisdictional as well as non cited several case laws of jurisdictional as well as non cited several case laws of jurisdictional as well as non- jurisdictional High Courts and Hon'ble Supreme Court but jurisdictional High Courts and Hon'ble Supreme Court but jurisdictional High Courts and Hon'ble Supreme Court but didn't correlate the facts of these case laws with the facts of didn't correlate the facts of these case laws with the facts of didn't correlate the facts of these case laws with the facts of the present appeal and it's applicability i the present appeal and it's applicability in the present case. n the present case. Therefore, contention of the appellant in this respect is Therefore, contention of the appellant in this respect is Therefore, contention of the appellant in this respect is rejected due to failure in establishing the correlation of facts rejected due to failure in establishing the correlation of facts rejected due to failure in establishing the correlation of facts of the cited case laws and the present case. of the cited case laws and the present case.
Keeping in view the above facts of the case, I don't find any Keeping in view the above facts of the case, I don't find any Keeping in view the above facts of the case, I don't find any reason of disagreement with the order of the AO. Hence, all of disagreement with the order of the AO. Hence, all of disagreement with the order of the AO. Hence, all the contentions of the appellant w.r.t. disallowance of sales the contentions of the appellant w.r.t. disallowance of sales the contentions of the appellant w.r.t. disallowance of sales promotion expenses paid to GCPL are hereby rejected and promotion expenses paid to GCPL are hereby rejected and promotion expenses paid to GCPL are hereby rejected and thus, first two grounds of appeal are dismissed. thus, first two grounds of appeal are dismissed.”
Before us, the Ld. Counsel of t Before us, the Ld. Counsel of the assessee filed a paper book he assessee filed a paper book containing pages 1 to 283. containing pages 1 to 283.
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We have heard rival submission of the parties on the issue We have heard rival submission of the parties on the issue We have heard rival submission of the parties on the issue-in- dispute and perused the relevant material on record. The assessee dispute and perused the relevant material on record. The assessee dispute and perused the relevant material on record. The assessee has referred to certain invoices issued by Goldmoon Commodeal has referred to certain invoices issued by Goldmoon Commodeal has referred to certain invoices issued by Goldmoon Commodeal Pvt. Ltd. which are placed on record from Paper Book page 29 to 37. Ltd. which are placed on record from Paper Book page 29 to 37. Ltd. which are placed on record from Paper Book page 29 to 37. On perusal of these invoices, we find that bills have been raised by On perusal of these invoices, we find that bills have been raised by On perusal of these invoices, we find that bills have been raised by said parties for charges towards advertising and branding services. said parties for charges towards advertising and branding services. said parties for charges towards advertising and branding services. Though, in the bills details has been claimed to have attached but Though, in the bills details has been claimed to have a Though, in the bills details has been claimed to have a no such details are found to be attached in the Paper book. During no such details are found to be attached in the Paper book. During no such details are found to be attached in the Paper book. During the course of appellate proceedings, the Ld. Counsel of the assessee the course of appellate proceedings, the Ld. Counsel of the assessee the course of appellate proceedings, the Ld. Counsel of the assessee was specifically asked to justify the actually services rendered so as was specifically asked to justify the actually services rendered so as was specifically asked to justify the actually services rendered so as to satisfy the contentions of the sec to satisfy the contentions of the section 37(1) of the Act of expense tion 37(1) of the Act of expense incurred wholly and exclusively for the purpose of business. No incurred wholly and exclusively for the purpose of business. No incurred wholly and exclusively for the purpose of business. No such evidences in respect of services rendered by the party M/s such evidences in respect of services rendered by the party M/s such evidences in respect of services rendered by the party M/s Goldmoon Commodeal Pvt. Ltd. has been filed by the assessee. Goldmoon Commodeal Pvt. Ltd. has been filed by the assessee. Goldmoon Commodeal Pvt. Ltd. has been filed by the assessee. When these facts clubbed with the When these facts clubbed with the fact of statement of Shri Kaml fact of statement of Shri Kaml Jain, Shri Deepak Upadhaya and Shri Ranjeet Kumar Singh of Jain, Shri Deepak Upadhaya and Shri Ranjeet Kumar Singh of Jain, Shri Deepak Upadhaya and Shri Ranjeet Kumar Singh of having engaged in the providing accommodation entry bills, the having engaged in the providing accommodation entry bills, the having engaged in the providing accommodation entry bills, the claim of the assessee of sales promotion expenses of ₹82,56,879/- claim of the assessee of sales promotion expenses of claim of the assessee of sales promotion expenses of declined by the Ld. CIT(A) is upheld. declined by the Ld. CIT(A) is upheld.
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As far as ground No. 2 of the appeal of the assessee is the As far as ground No. 2 of the appeal of the assessee is the As far as ground No. 2 of the appeal of the assessee is the details of said expenses were submitted during original assessment details of said expenses were submitted during original assessment details of said expenses were submitted during original assessment proceedings u/s 143(3) of the Act and no addition for the same had proceedings u/s 143(3) of the Act and no addition for the same had proceedings u/s 143(3) of the Act and no addition for the same had been made in the said proceedings been made in the said proceedings, is concerned. In concerned. In view of information received from the Investigatio information received from the Investigation Wing which being a n Wing which being a fresh fact, the reopening cannot be said to have been based on he reopening cannot be said to have been based on he reopening cannot be said to have been based on change of opinion on same set of facts. Accordingly, this ground of change of opinion on same set of facts. Accordingly, this ground of change of opinion on same set of facts. Accordingly, this ground of appeal of the assessee is also dismissed. appeal of the assessee is also dismissed.
In the result, the appeal filed by the assessee is dismissed. In the result, the appeal filed by the assessee is dismissed. In the result, the appeal filed by the assessee is dismissed.
Order pronounced Order pronounced under Rule 34(4) of the ITAT Rules, ) of the ITAT Rules, 1963 on 29/12/2022. /2022. Sd/- Sd/ Sd/- (VIKAS AWASTHY VIKAS AWASTHY) (OM PRAKASH KANT OM PRAKASH KANT) JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER Mumbai; Dated: 29/12/2022 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file.
The Byke Hospitality Ltd. 12 ITA No. 1954/M/2022
BY ORDER, BY ORDER, //True Copy// (Sr. Private Secretary) (Sr. Private Secretary) ITAT, Mumbai ITAT, Mumbai