SHREE GINGER ENTERPRISES LTD,MUMBAI vs. DCIT CEN CR 5(3), MUMBAI

Shree Ginger Enterprises Ltd. ÄY 200–10, 2010–11, 2011–12, 2012–13, 2013–14, 2014–15 & 2015–16 same, we have elaborately mentioning only the facts for the first assessment year (i.e. 2009-10) before us for the sake of brevity. However, if any particular issue is arising in any assessment year for the first time, facts pertaining to same are discussed accordingly.

Invocation Of Reassessment Proceedings (a)

5. The assessee company is engaged in the business of trading and manufacturing of knitted fabrics hosiery cloth and garments. For assessment year 2009–10, reassessment proceedings were initiated by the Assessing Officer („AO’) and notice under section 148 of the Act was issued on 27/02/2015. The AO provided reasons recorded for reopening the assessment to the assessee and same reads as under:

“A survey under section 133A of Income tax act 1961 in the case of KSL/Tayal Group cases was carried out by the investigation wing, Mumbai on 10/09/2013. The information from the investigation wing has been received as under: 2. It was found that M/s. Ginger Enterprises Ltd has shown purchases from the following concerns/companies:

1. 1. Advik Textiles and Realpro Pvt Ltd. 2. Bilpower Textiles and Conpro Pvt Ltd. 3. Omrade Lease Finvest Pvt Ltd. 4. Encare Textiles and Properties Pvt. Ltd. 5. Gamin Traders Pvt. Ltd. 6. Hotline Textiles and Infra Pvt. Ltd. 7. Instant Traders Pvt. Ltd. 8. Jade Traders Pvt. Ltd.

9. Loren Leasing and Infotech Pvt. Ltd. 10.Oak Leasing and Infotech Pvt. Ltd. 11.Rosette Leasing and Infotech Pvt. Ltd. 12.Upright Leasing and Infotech Pvt Ltd.

3. The assessee was asked to furnish the details of the transactions made with the above companies as well as the purchase invoices, delivery challans, goods receipt note and other documents in support of purchase of fabrics from the above companies. But, the assessee has not furnished any Information / documents in support of the purchases made from these concerns. It was found Page | 3

Shree Ginger Enterprises Ltd. ÄY 200–10, 2010–11, 2011–12, 2012–13, 2013–14, 2014–15 & 2015–16 that the assessee has shown the purchases fabrics of Rs.117 Crores from the above companies in the financial year 2008-09, The details of the same areas under: Sr. Amount in Cr. Name of the supplier F.Y. no. 12.00 Advik Textiles and Realpro Pvt. Ltd. 2008–09 1. 10.00 Bilpower Textiles and Conpro Pvt. Ltd. 2008–09 2. 9.00 Comrade Lease Finvest Pvt. Ltd. 2008–09 3. Encare Textiles and Properties Pvt. Ltd. 9.00 2008–09 4. Gamin Traders Pvt. Ltd. 9.00 2008–09 5. Hotline Textiles and Infra Pvt. Ltd. 12.00 2008–09 6. Instant Traders Pvt. Ltd. 10.00 2008–09 7. Jade Traders Pvt. Ltd. 12.00 2008–09 8. Loren Leasing and Infotech Pvt. Ltd. 8.00 2008–09 9. Oak Leasing and Infotech P. Ltd. 8.00 2008–09 10. Rosette Leasing and Infotech P. Ltd. 8.00 2008–09 11. Upright Leasing and Infotech P. Ltd. 10.00 2008–09 12. 117.00 Total:

2. Parel Mumbai Gala no.6, Kamath Industrial Estate, Opp. Comrade Lease Finvest Pvt. Ltd.

Shree Ginger Enterprises Ltd. ÄY 200–10, 2010–11, 2011–12, 2012–13, 2013–14, 2014–15 & 2015–16 6. On going through the mater data available on MCA site, it was also found that in the column of email Id, all the above mentioned company has shown id as Kothari@gingerclothing.com except skt@bom4.vsnl.in shown in the case of M/s. Comrade Lease Finvest Pvt Ltd.

Shree Ginger Enterprises Ltd. ÄY 200–10, 2010–11, 2011–12, 2012–13, 2013–14, 2014–15 & 2015–16 this fresh issue should have been raised by way of an application seeking admission of additional ground, however, the assessee has raised the same in its appeals. It is settled that being a legal issue, same can be raised at any stage of proceedings, if the basic facts are available on record. Therefore, we proceed to deal with same. From the reasons recorded, it is evident that pursuant to survey under section 133A of the Act in case of Tayal Group cases it was found that assessee has shown unaccounted purchases and claimed depreciation on plant and machinery, which were found to be bogus. Accordingly, on the basis of information received from the investigation wing, reassessment proceedings in the case of assessee were initiated. In ACIT v. Rajesh Jhaveri Stock Brokers (P.) Ltd, [2007] 291 ITR 500 (SC), the Hon‟ble Supreme Court observed as under:

“16. Section 147 authorises and permits the Assessing Officer to assess or reassess income chargeable to tax if he has reason to believe that income for any assessment year has escaped assessment. The word "reason" in the phrase "reason to believe" would mean cause or justification. If the Assessing Officer has cause or justification to know or suppose that income had escaped assessment, it can be said to have reason to believe that an income had escaped assessment. The expression cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion. The function of the Assessing Officer is to administer the statute with solicitude for the public exchequer with an inbuilt idea of fairness to taxpayers. As observed by the Supreme Court in Central Provinces Manganese Ore Co. Ltd. v. ITO [1991] 191 ITR 662, for initiation of action under section 147(a) (as the provision stood at the relevant time) fulfilment of the two requisite conditions in that regard is essential. At that stage, the final outcome of the proceeding is not relevant. In other words, at the initiation stage, what is required is "reason to believe", but not the established fact of escapement of income. At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could have formed a requisite belief. Whether the materials would conclusively prove the escapement is not the concern at that stage. This is so because the formation of belief by the Assessing Officer is within the realm of subjective satisfaction ITO v. Selected Dalurband Coal Co. (P.) Ltd. [1996] 217 ITR 597 (SC); Raymond Woollen Mills Ltd. v. ITO [1999] 236 ITR 34 (SC).”

Shree Ginger Enterprises Ltd. ÄY 200–10, 2010–11, 2011–12, 2012–13, 2013–14, 2014–15 & 2015–16 7. Thus, if there is relevant material on the basis of which reasonable person can form a requisite belief that income chargeable to tax has escaped assessment, then proceedings under section 147 of the Act can be validly initiated. Further, it is also well settled that sufficiency or correctness of the material is not a thing to be considered at the stage of recording of reasons. From the reasons recorded for reopening the assessment in the case of assessee it is also evident that the assessee has not disclosed truly and fully all material facts. As a result, we find no infirmity in the reassessment proceedings initiated by the AO under section 147 of the Act. Thus, the grounds raised by the assessee pertaining to this issue are dismissed.

(b) Notice under section 143(2) was not served within the prescribed period

8. During the course of hearing, learned DR submitted that neither before the AO nor before the learned CIT(A), the assessee raised this issue and it has been raised for the first time in appeals before us. We find that though, this fresh issue should have been raised by way of an application seeking admission of additional ground, however, the assessee has raised the same in its appeals. It is settled that being a legal issue, same can be raised at any stage of proceedings, if the basic facts are available on record. Therefore, we proceed to deal with same. As per section 143(2) of the Act, notice under this section is required to be served on the assessee before the expiry of 6 months from the end of the financial year in which the return under section 139 or in response to notice under section 142(1) of the Act is furnished. Thus, the time period provided in the aforesaid section for issuance of notice is in respect of Page | 8

Shree Ginger Enterprises Ltd. ÄY 200–10, 2010–11, 2011–12, 2012–13, 2013–14, 2014–15 & 2015–16 return filed under section 139 or in response to notice under section 142 (1) of the Act. However, in the present case, reassessment proceedings were initiated by the AO under section 147 and notice under section 143(2) of the Act was issued only pursuant there to. Thus, in view of the above, in absence of any other material available on record we are of the considered view that notice under section 143(2) of the Act was served to the assessee within the prescribed time pursuant to initiation of reassessment proceedings in the present case. Thus, the ground raised by the assessee pertaining to this issue is dismissed.

(c) Addition on account of alleged purchases out of books

Shree Ginger Enterprises Ltd. ÄY 200–10, 2010–11, 2011–12, 2012–13, 2013–14, 2014–15 & 2015–16 Subsequently, on the post survey investigation, books of accounts and supporting documents were called. Shri Sanjay Kumar Tayal submitted that all the records, books of accounts and other related documents were destroyed in fire on 29/09/2013 at main factory in Silvassa. It was also found that Shri Kulvinder Kumar Nayyar was the director of the 12 companies from which the assessee had shown purchases of fabrics at Rs. 117 crore in assessment year 2009 – 10. The addresses of these companies were shown as gala No. 6, 1st floor, Raghuvanshi Mills compound, lower Parel, Mumbai. These premises belong to Tayal Group of companies. On further investigation, it was found that Shri Kulvinder Kumar Nayyar was an employee of Tayal group of company. His statement was recorded on 08/05/2014, wherein he confirmed that he was employed with the assessee company. He also admitted that 12 companies are floated by Shri Sanjay Kumar Tayal and are managed and controlled by him. He also admitted that he was a dummy director and the companies were managed by Shri Sanjay Kumar Tayal. The AO vide order 30/03/2016 passed under section 147 r/w section 143 (3) of the Act treated the purchase of Rs. 117 crore to be out of books and the corresponding sales are also treated to be made out of books. Since, the assessee has shown gross profit @7.04%, therefore, addition of Rs. 8,23,68,000 was made to the total income of the assessee.

Shree Ginger Enterprises Ltd. ÄY 200–10, 2010–11, 2011–12, 2012–13, 2013–14, 2014–15 & 2015–16

(d) Disallowance of depreciation on account of bogus purchases of plant and machinery

“6.4 I have considered the submissions carefully. The factual back ground has been narrated earlier. Shri Sanjay Tayal, after initially promising to produce books of accounts and supporting bills and vouchers, immediately after the survey action claimed that its books of accounts had perished in a fire that occurred shortly after the survey on 29.9.2013 The lack of genuineness of transactions of 12 entities including M/s.Advik Textiles and M/s.RealproPvt. Ltd. has been noted earlier and has been highlighted in the assessment order. It is noted that the appellant group companies were using bogus bills from various entities operated by Mahaveer Duggar and Dilip Mehta CA to siphon out money. Wherever and whatever bills of Tayal Group were found either in survey u/s 133A on 10.9.2013, search action u/s 132 on 23.12.2008 or from banks such as UCO bank to whom appellant had submitted the bills (refer records of M/s Actif Corporation Ltd.), the bills have been found to be bogus. It is no wonder that the appellant is seeking refuge under the claim of fire to not produce the basic evidence. The valuers, YardiPrabhu Consultants &Valuers P. Ltd. and Business and Industrial Consultants. whose report is relied upon strongly by the appellant have been examined on oath in the appellate proceedings. They have clearly indicated that their reports do not vouch for the machineries as being found as installed in the relevant year nor do they vouch that they are the same machines. In the absence of bills and details of machinery, no valuer can verify that the additions claimed in a particular year is genuine and is of the value claimed. An estimate of value in no way indicates the actual machine in description or year of manufacture and installation, their existence and the actual cost for claiming depreciation. The genuineness of transaction is not established by the same. Instances of falsification of invoices was already noted. The end use has been not established in respect of the loans raised by the appellant. Forensic audit done by the auditors appointed by the lenders has already indicted the appellant. FIR has been filed by the lenders with CBI in this Page | 12

Shree Ginger Enterprises Ltd. ÄY 200–10, 2010–11, 2011–12, 2012–13, 2013–14, 2014–15 & 2015–16 regard. There is clearly a malafide and patently unbelievable claim that books, records and all supporting documents including computer records for AY 2007- 08 to AY 2013-14 for all 8 companies were kept at a single location and were lost in fire. If that were indeed the case, the appellant would have reconstructed its books from its hank statements identifying the parties to whom payments were made, obtaining duplicate bills from them. That this was not done clearly shows that the appellant was unwilling to provide details that would clearly and explicitly prove its fraud. The appellant has claimed how sales were shown when it did not have machinery. However, I am not impressed with this rhetoric. The moot point is whether the assets were installed and that too at the value claimed. The existing old plant, the use of second hand old machines, bogus sales and purchase bills are equally compatible with the sales and accounts claimed by the appellant. The bills that were found in the course of survey have been shown to be bogus. In this context, the disallowance of claim of depreciation is upheld and ground of appeal no 2 is dismissed.”

14. Having considered the submissions of learned DR and perused the material available on record, we find that regarding the process of verification, the valuers had submitted that machines were looking very old. Further the metallic plate on the machines which contains all the technical details of the particular machines i.e. machines serial No., model No., year of manufacturing, electrical ratings, operating diagram, make and various details of the machinery was missing. The valuers further submitted that there was no basis to ascertain the model and the year of manufacture and the year of installation of the machines. Further, the valuers submitted that ownership of the machines cannot be verified in absence of invoices and fixed assets register. In absence of details as sought by the lower authorities, the bills produced by the assessee were found to be bogus. Thus, in view of the above findings, we find no infirmity in the impugned order passed by the learned CIT(A) on this issue. As a result, addition made by the AO on this issue is upheld. Thus, the ground raised by the assessee pertaining to this issue is dismissed.

Shree Ginger Enterprises Ltd. ÄY 200–10, 2010–11, 2011–12, 2012–13, 2013–14, 2014–15 & 2015–16 (e) Disallowance of payment of interest expenses

“7.4. I have considered the submissions. As a corollary to the decision in respect of ground of appeal no 2, since borrowed funds have been siphoned off, the interest claimed on the same cannot be considered as used for business. The disallowance is warranted. The computation made by the assessing officer is fair and reasonable. The disallowance is upheld and ground of appeal no 3 is dismissed.”

16. As, findings of learned CIT(A) in respect of bogus purchases have been upheld, we find no infirmity in the aforesaid findings of learned CIT(A) on this issue. Thus, the ground raised by the assessee pertaining to this issue is dismissed.

(f) Ad hoc disallowance of administrative expenses

Shree Ginger Enterprises Ltd. ÄY 200–10, 2010–11, 2011–12, 2012–13, 2013–14, 2014–15 & 2015–16 the learned CIT(A), assessee submitted that administrative expenses constitute only minuscule portion of the total turnover. We find that apart from the aforesaid submission nothing has been brought on record to prove that the administrative expenses as claimed was incurred for purpose of business. Thus, in view of the above, we find no infirmity in the impugned order passed by the learned CIT(A) upholding the disallowance of 10% of administrative expenses claimed by the assessee. Thus, the ground raised by the assessee pertaining to this issue is dismissed.