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Income Tax Appellate Tribunal, “A” BENCH, MUMBAI
Before: SHRI RAJESH KUMAR & SHRI AMARJIT SINGH
O R D E R
PER AMARJIT SINGH, JM:
The assessee has filed the present appeal against the order dated 29/03/2019 passed by the Principal Commissioner of Income Tax (Appeals) -33, Mumbai in view of section 263 of the I.T.Act, 1961 relevant to the A.Y.2011-12.
The assessee has raised the following grounds: - 1. “ The Hon.Pr..CIT erred in holding the order framed by the Ld.AO u/s 143(3) r.w.s. 147 of the I.T.Act, 1961 on 07.12.2016, to be erroneous and prejudicial to the interest of revenue and accordingly the assumption of jurisdiction by the Hon.Pr.CIT u/s 263 of the I.T.Act, 1961 was not valid and justified by law.
2 Amitanil Modi(HUF) AY 2011-12 2. The learned Pr.CIT erred in setting aside to the file of the assessing officer, the assessment framed u/s 143(3) r.w.s. 147 of the I.Tax Act, 1961 on 07.12.2016, by relying upon the provisions of sec.263 of the I.Tax Act, 1961, directing the Ld. AO to make further inquiries into the business affairs of the appellant, ignoring that the order passed u/s 143(3) r.w.s. 147 on 07.12.2016 was after making all such enquiries and therefore the oder u/s 263 dt. 29.03.2019 be held to be bad-in-law and quashed.
The brief facts of the case are that the assessee filed its return of income on 20/09/2011 for the AY 2011-12, declaring a total income to the tune of Rs. 4,70,270/-. The return was processed u/s 143(3) r.w.s. 147 of the Act on 07/12/2016 determining the total income to the tune of Rs. 8,53,370/-. The case of the assessee was reopened u/s 263 of the Act by virtue of notice dated 05/03/2019 on account of following reasons.
“The case record of the assessment proceedings for AY 2011-12 in this case were called for an examined and on examination it was found the following facts which are as illustrated below. In the above mentioned case, information was received from Safes tax Department and the office of DGIT(INV) that the abovementioned assessee was involved tor taking entries of bogus purchases to the tune of Rs. 1,84,45,1737- for A.Y. 2011-12 . In this case, the assessee had claimed that no- purchases has been made from the purchase party M/s. Supreme Enterprises amounting to Rs. 16,42,4627- during the year under consideration. On perusal of the purchase list and invoices, it is seen that no purchases has been made from M/s. Supreme Enterprises during the year. Further, during the course of assessment proceedings, it was seen that purchases of Rs. 16,42,462/- had been made from M/s. Krupa Trading., The assessee had submitted details of purchase including invoices along with copies of VAT return filed by M/s. Krupa Trading. Hence the purchases of Rs. 16.42.462/- was reduced from the total alleged purchases of Rs 1,84,45,173/- ,determining the total bogus purchases at Rs.1,68,02,711/-.
3 Amitanil Modi(HUF) AY 2011-12 The Assessing Officer has added back 2.28% of the tote' bogus purchases i.e.Rs.3,83,102/-for A.Y. 2011-12. Further by relying upon judgement of the Hon'ble Supreme Court in the case of N. K. Proteins vs. DCIT-2017-T/OL-23SC- IT dated 16.01.2017 wherein it was held that addition on basis of undisclosed income could not be restricted to a certain percentage when the entire transaction was found as bogus. Further, the Assessing Officer has also relied upon the judgement of Gujarat High Court in the case on CIT-1 vs Simit P. Sheth wherein the High Court has held the addition @ 12.5% of the bogus transactions. Thus, on the basis of examination of records it is found that the Assessing Officer without making proper inquiry or verification has erroneous/y passed the assessment order after making the addition @ 2.28% instead of 12.5%. The order passed by the AO is thus prejudicial to the interest of revenue."
Thereafter, the assessee filed the reply and after considering the reply of the assessee, the case of the assesee was reopened to pass the order afresh in view of provisions u/s 263 of the Act on the above mentioned grounds. The assessee was not satisfied .Therefore, filed the present appeal before us.
ISSUES NO.1 AND 2:-
Under these issues, the assessee has challenged the validity of reopening of the assessment of the assesee in view of the provision 263 of the Act. The contention of the Ld. AR of the assessee is that the AO has already examined the issue and considered the alleged purchases and added back to 2.82% of the total purchases i.e. 3,83,102/- for the AY 2011-12 to the income of the assessee, but the PCIT under order challenged has directed to consider the addition @12.5% of the bogus purchases which is 4 Amitanil Modi(HUF) AY 2011-12 not justifiable in accordance with law, hence the order u/s 263 of the Act is liable to be set aside. In support of these contentions the Ld. AR for the assessee has placed reliance on the decision in the case of CIT vs. Nirav Mody, 390 ITR 292 (Bom), CIT vs Amitabh Bachchan, 384 ITR 200 (SC) and CIT vs Gabriel India Ltd. 203 ITR 108 (Bom) and Maharashtra Engineering vs PCIT Kolhapur in ITA No.859/Pun/2018. On the other hand, the Ld. DR has refuted the said contention and argued that the provisions u/s 263 has rightly been invoked by the PCIT and in support of his contentions the Ld. DR has placed reliance on the decision of Chandigarh Bench in the case of Sphinx Precision Ltd. Vs. CIT, Shimla
(2007) 11 SOT 498 (Chd). We have heard the rival contentions and perused the relevant material available on record. Copy of the assessment order 07/12/2016 is on the file which speaks that the issues of bogus purchase has already been considered by the AO and the AO has considered the GP ratio @2.28% upon the total bogus purchase in sum of Rs.1,68,02,711/- which comes to the tune of Rs. 3,83,102/- and added to the income of the assessee, the total income of the assessee was assessed in sum of Rs. 8,53,372/-. The assessment order was passed on 07/12/2016. Subsequently the order under challenged u/s 263 was passed on 29/03/2019. PCIT invoked the provision of 263 of the Act on following reasons. “The case record of the assessment proceedings for AY 2011-12 in this case were called for an examined and on examination it was found the following facts which are as illustrated below. In the above mentioned case, information was received from Safes tax Department and the office of DGIT(INV) that the abovementioned assessee was involved tor taking entries of bogus purchases to the tune of Rs. 1,84,45,1737- for A.Y. 2011-12 . In this case, the assessee had 5 Amitanil Modi(HUF) AY 2011-12 claimed that no-purchases has been made from the purchase party M/s. Supreme Enterprises amounting to Rs. 16,42,4627- during the year under consideration. On perusal of the purchase list and invoices, it is seen that no purchases has been made from M/s. Supreme Enterprises during the year. Further, during the course of assessment proceedings, it was seen that purchases of Rs. 16,42,462/- had been made from M/s. Krupa Trading., The assessee had submitted details of purchase including invoices along with copies of VAT return filed by M/s. Krupa Trading. Hence the purchases of Rs. 16.42.462/- was reduced from the total alleged purchases of Rs 1,84,45,173/-,determining the total bogus purchases at Rs.1,68,02,711/-. The Assessing Officer has added back 2.28% of the tote' bogus purchases i.e.Rs.3,83,102/-for A.Y. 2011-12. Further by relying upon judgement of the Hon'ble Supreme Court in the case of N. K. Proteins vs. DCIT-2017-T/OL-23SC-IT dated 16.01.2017 wherein it was held that addition on basis of undisclosed income could not be restricted to a certain percentage when the entire transaction was found as bogus. Further, the Assessing Officer has also relied upon the judgement of Gujarat High Court in the case on CIT-1 vs Simit P. Sheth wherein the High Court has held the addition @ 12.5% of the bogus transactions. Thus, on the basis of examination of records it is found that the Assessing Officer without making proper inquiry or verification has erroneous/y passed the assessment order after making the addition @ 2.28% instead of 12.5%. The order passed by the AO is thus prejudicial to the interest of revenue."
6. Undoubtedly, the issue has been already considered by the AO while passing the order dated 07/12/2016 and on the same ground reopening u/s 263 of the act is not justifiable. The Hon’ble ITAT Pune Bench has passed order in dated 20/12/2020. The relevant findings are hereby produced below.
5. We have heard the rival contentions and perused the material on record. It is noticed that the reopening of the assessment has been done for the Mah. Engg. Kolhapur A.Y. 2010-11 specific purpose of examining the said purchases from C.R. enterprises. The A.O after 6 Amitanil Modi(HUF) AY 2011-12 considering the evidences produced came to the conclusion that the addition representing disallowance of 5% of the total purchases would meet the ends of justice. Thus, the reasons have been recorded for the purposes of reopening of the assessment. The issue on the basis which reopening has been done, has been examined by the A.O and after verifying the evidences, a conscious decision has been taken by the A.O when passing the assessment order on 11-3-2016. A perusal of the order u/s 263 passed by the learned CIT shows that in the show cause notice, the learned Pr. CIT has mentioned that the disallowance of 5% of the total of such purchases is erroneous and prejudicial to the interest of revenue within the meaning of sec. 263 of the Act. However, when it came to the order passed u/s 263 he does not say as to how the said assessment order passed u/s 143(3) read with sec. 147 for the A.Y. 2010-11 dated 11-2-2016 is erroneous insofar as it is prejudicial to the interest of revenue. For brevity, the finding of the learned CIT in paras 9 to 13 is extracted herein below. "9. I have gone through assessment order. On the basis of information received from Maharashtra Sales tax Department, it is found that the aforesaid transactions are bogus without actual sale/delivery of goods. Further, on enquiries by the A.O the sellers are found to be non- existent at the given addresses. The assessee has also failed to file confirmations, failed to produce the suppliers. The letters issued have come back un-served, which proved that the whole purchases were not genuine. As stated above, the Hon'ble Supreme Court vide it's judgment in SLP in CC No. 769/2017 has dismissed the SLP filed by the assessee thereby confirming the judgment of the Hon'ble Gujarat High Court in the case of N.K. Proteins Ltd Vs. DCIT (2016) 72 Taxman.com 289 (Gujarat) which has held that addition on percentage basis on bogus or Hawala purchases is against the spirit of I.T. Act. Considering all these facts and legal position, the assessment order is required to be set aside.
However, on this issue, it may be noted that the ITAT Mumbai Bench 'F' Mumbai, vide its order under and 4558/Mum/2015 dated 28-7-2017 in the case of dy. CIT 14(1)(2) Mumbai Vs. Fagiol India Pvt. Ltd., has distinguished the judgment of Supreme Court in the case of N.K. Proteins. The ITAT has held that considering factual matrix, what needs to be taxed is profit element embedded in Mah. Engg. Kolhapur A.Y. 2010-11 such purchases but not the entire purchases. Therefore, in the light of 7 Amitanil Modi(HUF) AY 2011-12 the above judgment, the A.O is required to re-examine the factual matrix and then to decide whether addition of entire purchases or only profit element is warranted in this case.
In view of the above facts and circumstances and legality of the case, the order passed u/s 143(3) r.w.s. 147 for A.Y. 2010-11 dt. 11-3- 2016 is hereby set aside for fresh determination of income after proper examination of the facts and law.
However, before arriving at any conclusion, the A.O shall give an opportunity to the assessee to adduce evidence in support of its claim of purchases, verify its allowability in the light of the prevailing position of law. Hence, to ensure that the assessee is given proper opportunity of being heard and for substantiating its claim, it would be just and proper to set aside the assessment completed on 11-3- 2016 for the A.Y. 2010- 11 for de-novo examination of facts. This being done in spirit of the Hon'ble Supreme Court's decision in the case of Rampyari Devi Saraogi Vs. CIT (1969) 67 ITR 84 (SC) wherein it is held that since the assessee is getting an opportunity of being heard, no prejudice is caused to the assessee if the order is set aside.
In the result the assessment order as referred above is set aside."
The learned Pr. CIT also fails to answer the very primary question that if the purchases are going to be treated as bogus and the addition is going to be made of the entirety of the purchases what happens to the sales that have been disclosed, as also the stocks by treating the said purchases as bogus. Sales which have been disclosed cannot be touched. The stock statement of the assessee would also stands disturbed. A perusal of the assessment order however, shows that these have been examined by the A.O and after considering the facts the estimated addition of 5% of purchases have been made by the A.O. Thus, the issues have been examined by the A.O and just because the opinion as arrived by the A.O is at a variation of the opinion of the learned Pr. CIT, would not grant the learned Pr. CIT the powers of revision u/s 263 of the Act. Thus, on merits, the order passed u/s 263 stands set aside. We are not going into the technical issues as has been discussed in this order Mah. Engg. Kolhapur A.Y. 2010-11 above as we have, on merits, set aside the revisional order passed u/s 263 of the Act.
8 Amitanil Modi(HUF) AY 2011-12 7. The Jurisdictional High Court in the case of CIT vs Nirav Mody 390 ITR 292 (Bom), has held that when a particular view has been taken by the AO, then on the same reasons, the case of the assessee is not required to be reopened in view of the provisions u/s 263 of the Act CIT vs Amitabh Bachchan, 384 ITR 200 (SC) has also speaks that where a specific view has been taken by the AO then interference u/s 263 is not permissible. Maharashtra High Court in the case of CIT vs Gabriel India Ltd. 203 ITR 108 (Bom) has also speaks the same thing in same sense. The facts of the case relied by the Ld. DR i.e. Sphinx Precision Ltd. Vs. CIT, Shimla (2007) 11 SOT 498 (Chd) is quiet distinguishable from the facts of the present case being in this case, there was an error in calculation of deduction u/s 80HHC and an error in calculation of income u/s 115JA and the order of the AO was silent on these issues. Taking into account all these facts and circumstances and considering these facts that the issue has not been considered by the AO, while passing order dated 07/12/2016. Therefore, there is no justification invoking the provision u/s 263 of the Act in accordance with law. Therefore, we are set aside the order in question and allowed the appeal of the assessee.