ASSISTANT COMMISSIONER OF INCOME-TAX vs. M/S. PAWAR PATKAR CONSTRUCTION PVT. LTD.,, NASHIK

आयकर अपीलीय अिधकरण “बी” �यायपीठ पुणे म� । IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, PUNE BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM आयकर अपील सं. / ITA No. 868/PUN/2016 िनधा�रण वष� / Assessment Year : 2010-11 ACIT, Circle-2, .......अपीलाथ� / Appellant Nashik बनाम / V/s. M/s. Pawar Patkar Construction Pvt. Ltd., Shop No.11, Ram Plaza Apartment, Mumbai Naka Road, Nav Shakti Chowk, Bhabha Nagar, Nashik – 422 011 PAN : AAIFP9352Q ……��यथ� / Respondent Assessee by : Shri C.H. Naniwadekar Revenue by : Shri Pankaj Garg सुनवाई क� तारीख / Date of Hearing : 31.12.2018 घोषणा क� तारीख / Date of Pronouncement : 09.01..2019 आदेश / ORDER PER D. KARUNAKARA RAO, AM: This appeal is filed by the Revenue against the order of CIT(A)-2, Nashik, dated 12-02-2016 for the A.Y. 2010-11. 2. Briefly stated, relevant facts of the assessee, include that the assessee filed the return of income on 29-09-2009 declaring total income of Rs.4,44,72,400/-. On the basis of information received from Sales Tax Department, the assessee’s case was reopened u/s.147 of the Income Tax Act. During the impugned assessment year, assessee reflected the purchases from three suppliers namely, (1) M/s. Varun Enterprises (2) M/s. Raj Traders and

2 ITA No.868/PUN/2016 M/s. Pawar Patkar Construction Pvt. Ltd., M/s. Payal Enterprise amounting to Rs.2,65,10,925/-. In response to notice u/s.147 of the Act, the assessee submitted that he purchased the materials from the above parties and the same are reflected in the purchase register as steel purchases. Assessee paid the amounts through account payee cheques/RTGS only. In support of the genuineness of the transactions, the assessee submitted the ledger extracts of the parties, copies of bank statements reflecting the payments, copies of invoices, delivery challans, weigh bridge receipts, copies of RA bills, quantitative details, etc. However, the AO was not convinced with the explanation of the assessee. The Assessing Officer opined that mere submission of bills from the sellers do not establish the genuineness of the purchases. Assessee failed to produce the parties from whom the assessee made purchases. Thus, assessee failed to discharge the onus cast on him. Eventually, the AO disallowed the amount of Rs.2,65,10,925/- and held that the purchases made by the assessee are not genuine and appear to be fictitious entries in order to reduce the profit. 3. Aggrieved with the order of AO, the assessee filed an appeal before the CIT(A). Before the First Appellate authority, the assessee argued that the assessee made purchases from the said suppliers. However, the suppliers did not pay the VAT as per order. Therefore, the cases were registered against them. The suppliers changed their business addressed and left the location and therefore, they are not traceable. Therefore, as per the assessee, for the mischief of the suppliers, the assessee could not be blamed for unserved notices u/s.133(6) of the Act. Assessee relied on various decisions which are incorporated in Para No.8.2 of the appellate order. Assessee raised an alternate ground he has reasonable gross profit and the addition be made @ 4% of the alleged hawala purchases, as without purchases, there cannot be sales. The CIT(A) after considering the facts of the case, submissions of the

3 ITA No.868/PUN/2016 M/s. Pawar Patkar Construction Pvt. Ltd., assessee, restricted the addition to 6% of the hawala purchases and thus deleted the addition of Rs.2,49,20,270/-. Contents of Para No.8.4 of the order of CIT(A) are relevant. 4. Now the Revenue is in appeal before the Tribunal by raising the following grounds : “1. On the facts and in circumstances of the case, the decision of the CIT(A) is erroneous, since the assessee has accepted in principle that purchases are bogus and thereby offered for addition @4% of the progress of the purchases on account of bogus bills debited to the account (reference para 8.4 of the CIT(A)'s impugned order). (T.E. in this case is Rs. 84,70,400/- which is exclusively on the issue of non-genuine purchases - Hawala) 2. The CIT(A) was not correct in observing that the A.O. has simply relied on the sales tax information, in view of the fact that notice u/s 133(6) sent by the A.O. to the relevant parties which was returned undelivered and the party, before the Sales Tax Authority, has accepted issuing bogus bills. 3. The Learned CIT(A) was not justified in observing that after removing the impugned purchases, the gross profit would rise to 8.90% without giving any basis as what would be the correct percentage of the gross profit of such business. The CIT(A) erred in imposing of profit margin of 6% of the impugned purchases to be added to the income without including initial capital employed, the peak investment and considering the turnover cycle. 4. The appellant prays leave to add, alter, clarify, amend and or withdraw any grounds of appeal as and when the occasion demands. 5. Ld. DR for the Revenue submitted that since the assessee himself has accepted for addition of Rs.4% which implies that the assessee made bogus purchases. The assessee could not produce the sellers before the AO. The notices sent u/s.133(6) were returned unserved. Therefore, the assessee could not prove the purchases to be genuine. Thus, Ld. DR prayed for upholding the order. 6. Per Contra, Ld. AR for the assessee vehemently submitted that the order of the CIT(A) is fair and reasonable on this issue and not be disturbed. Further, referring to the GP rate @ 4% of the alleged hawala purchases, ld. AR

4 ITA No.868/PUN/2016 M/s. Pawar Patkar Construction Pvt. Ltd., submitted that the decision of the Pune Bench of the Tribunal in the case of M/s. Chhabi Electricals Pvt. Ltd. and others vs. DCIT in ITA No.795/PUN/2014 relating to assessment year 2010-11, order dated 28.04.2017 is in favour of the assessee. Giving consideration on the percentage of GP rate @ 4%, ld. AR submitted that establishing the facts relating to the trail of goods of the assessee by submitting various invoices/bills etc, the GP rate @ 10% of alleged hawala purchases should be the maximum for the appeal under consideration. 7. We have heard both the sides and perused the orders of the authorities below. The solitary issue before us is whether the CIT(A) was justified in restricting the addition @ 6% of the purchases made by the assessee on estimate basis. Before the lower authorities, the assessee produced various documents viz., ledger extracts of the parties, copies of bank statements reflecting the payments, copies of invoices, delivery challans, weigh bridge receipts, copies of RA bills, quantitative details, etc., evidencing the trail of goods to the assessee’s premises. We find the Pune Bench of the Tribunal in a series of decisions has decided many cases pertaining to bogus purchases and adopted 10% of the same as addition where the assessee has substantiated the trail of goods to the assessee’s premises. We find the Pune Bench of the Tribunal in the case of M/s. Chhabi Electricals Pvt. Ltd. and others Vs. DCIT in ITA No.795/PUN/2014, relating to assessment year 2010-11, decided on 28-04-2017 analysed various beneficiaries of such bogus entry operators and depending on the submission of the evidences with regard to the trail of goods, payment etc. and held that addition be made by estimating the same @ 10% of the alleged hawala purchases. For the sake of completeness, we proceed to extract the said paragraphs from the order of the Tribunal (supra) and the same read as under :

5 ITA No.868/PUN/2016 M/s. Pawar Patkar Construction Pvt. Ltd., “40. In view of the above said ratios, the present issue of bogus purchases is to be decided on the basis of facts of each case. The first aspect is the information received by the Assessing Officer from the Sales Tax Department in respect of alleged hawala dealers. In many cases, the Assessing Officer has not even received the copy of statement recorded or any other evidence from the Sales Tax Department, except the list of hawala dealers and on the basis of the said list, the assessment proceedings have been completed in the hands of assessee, who had made the purchases from the said parties. In case, no such evidence has been received by the Assessing Officer before making addition, then there is no warrant in making aforesaid addition in the hands of assessee merely on the basis of so called list of hawala dealers. There are other cases, where the Assessing Officer had received the statement of the persons who were hawala dealers and who had admitted to have just issued bills of sale without delivery of goods. In such circumstances, there is evidence against the respective assessee that where the seller of the goods, has admitted not to have entered into real transaction of sale of goods. Against such non-transaction, there can be no delivery of goods, then it is case of passing of bills of sale and purchases, against which no VAT has been paid. Such bogus purchases are then to be added in the hands of assessee. Where the Assessing Officer had confronted the assessee with the information received, supplied copies of statements and where the persons have not been traced and no confirmation has been filed by the assessee in this regard, then the addition is to be made in the hands of assessee on account of such bogus purchases. In the facts and circumstances of some cases, the goods have been transferred by such hawala dealers to the respective purchasers, against which the assessee has to discharge onus of establishing the trail of goods which are transferred and further sold by them. Where the assessee is able to produce evidence of purchase of goods by way of weighment bridge receipts, transportation documents, payment of octroi and subsequent sale of goods to the respective parties and / or where the assessee has maintained complete quantitative details of purchase and sale of goods, then total bogus purchases cannot be added in the hands of assessee, but GP rate of 10% is to be applied on bogus purchases. Where the assessee does not establish its case, then the complete bogus purchases are to be added as hawala purchases. Further, in cases, where the statements are recorded and copies of which have been supplied to the assessee and assessee established the case of receipt of goods and its onward transmission by way of sale bills, then the factum of purchases by the assessee stands established in such circumstances. However, the benefit of purchases being made from grey market, needs estimation in the hands of assessee. The Tribunal has already held that the addition be made by estimating the same @ 10% of the alleged hawala purchases. Accordingly, it is so held. In view thereof, the issues which emerge are as under:- I. In case no information is received by the Assessing Officer from the Sale Tax Department and no copy of statement recorded or any other evidence is received from the Sales Tax Department, then no addition is to be made on the basis of name of hawala dealer in the list prepared by the Sales Tax Department, where the assessee had asked for the said information during assessment proceedings. II. Where the Assessing Officer had received the statements of persons who had admitted to have just issued bills of sale without any delivery of goods. In view of such evidence, where the assessee had not entered into real transaction of purchase of goods and in the absence of any delivery of goods, the sales are bogus and the entire sales are to be added in the hands of assessee. Admittedly, the dealer had not even paid VAT against such passing of goods. III. The case where the Assessing Officer had confronted the information received from the Sales Tax Department and had supplied copies of statements recorded and had also issued notice under section 133(6) of the Act, where hawala dealer was not traceable and in the absence of the assessee failing to file any documentary evidence of delivery of goods, addition is to be upheld in the hands of assessee on account of such bogus purchases.

6 ITA No.868/PUN/2016 M/s. Pawar Patkar Construction Pvt. Ltd., IV. The next instance is the case of goods which have been admittedly sold by the hawala dealer and has been received by the assessee, who in turn had maintained quantitative details and also evidence of its movement i.e. transportation details and quality control details of consumption of the said material or exact details of sale of the same consignment through same transporter directly to the party, then the total purchases cannot be added in the hands of assessee. However, since the purchases are made from the grey market, some estimation needs to be made in the hands of assessee. The Tribunal in M/s. Chetan Enterprises Vs. ACIT (supra) has already held that the addition be made by estimating the same @ 10% of the alleged hawala purchases, over and above the GP shown by the respective assessee. V. Another set of cases where the statements recorded by the Sales Tax Department have been handed over to the assessee and the copies of same have been supplied to the assessee, then where the assessee established the case of receipt of goods and its onward transmission, then the factum of purchases by the assessee stands established in such circumstances. However, estimation is to be made in the hands of assessee because of purchases from the grey market and following the above said ratio, addition is to be made by estimating the same @ 10% of the alleged hawala purchases, over and above the net profit shown by the assessee. 41. Now, coming to the factual aspects of each of the appeal, which have already been referred to by the learned Authorized Representative for the assessee and also refer to the orders of authorities below, where none has appeared on behalf of the assessee. 42. The lead case is in the case of M/s. Chhabi Electricals Pvt. Ltd., where the grievance of the assessee is that the Assessing Officer before making the addition has not even supplied the copy of statement or any other evidence recorded by the Sales Tax Department to establish that the purchases made by the assessee were bogus. I have already decided this issue in M/s. Chetan Enterprises Vs. ACIT (supra) and held that in cases where the Assessing Officer has failed to supply such statement recorded by the Sales Tax Department or any other evidence justifying the addition, no addition is to be made in the hands of assessee. The grounds of appeal raised by the assessee are thus, allowed. The learned Authorized Representative for the assessee has further referred to various documents i.e. gate pass, GRN and issue pass establish its case of delivery of goods i.e. purchase from hawala dealer and its onwards consumption in the manufacturing process of the assessee. In such circumstances, where the assessee has established the trail of goods purchased to the final consumption, then there is no merit in the addition made by the Assessing Officer. Thus, the grounds of appeal raised by the assessee are allowed and appeal of the assessee is allowed.” 8. From the above facts, arguments and the said order of the Tribunal in the case of M/s. Chhabi Electricals Pvt. Ltd. and others (supra), we find it is case where the assessee demonstrated the trail of goods to the assessee’s premises and produced the supporting evidences before the Assessing Officer. The Assessing Officer did not find any incriminating about the said evidences furnished before him by the assessee. Further, we find the said decision of the

7 ITA No.868/PUN/2016 M/s. Pawar Patkar Construction Pvt. Ltd., Tribunal is not available at the time of passing of order by the CIT(A) on 12-02- 2016. Considering the entire factual matrix in the instant case, we are of the opinion that the matter should be remanded to the file of CIT(A) for considering the above decision of the Tribunal and apply the ratio laid down to the facts of the present case. Accordingly, the grounds raised by the Revenue are partly allowed for statistical purposes. 9. In the result, the appeal of Revenue is partly allowed for statistical purposes. Order pronounced on 09th January, 2019. Sd/- Sd/- (PARTHA SARATHI CHAUDHURY) (D. KARUNAKARA RAO) �याियक सद�य/JUDICIAL MEMBER लेखा सद�य/ACCOUNTANT MEMBER पुणे / Pune; �दनांक / Dated : 09th January, 2019 Satish/Sujeet आदेश क� �ितिलिप अ�ेिषत / Copy of the Order forwarded to : अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The CIT (Appeals)-2, Nashik 4. The Pr. CIT-2, Nashik. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, “बी” ब�च, 5. पुणे / DR, ITAT, “B” Bench, Pune. गाड� फ़ाइल / Guard File. 6. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.