ITO 19(2)(3), MUMBAI vs. M/S MEGHDOOT ENTERPRISES, MUMBAI

O R D E R PER C.N. PRASAD (JM) 1. This appeal is filed by the revenue against order of the Learned Commissioner of Income Tax (Appeals)–7, Mumbai [hereinafter in short “Ld.CIT(A)”] dated 01.04.2019 for the A.Y. 2009-10 in restricting the addition to 12.5% as against the 30% bogus purchases disallowed by the Assessing Officer.

(A.Y. 2009-10) M/s. Meghdoot Enterprise 2. Briefly stated the facts are that, assessee engaged in the business of printing, filed return of income on 30.09.2009 declaring income of ₹.71,601/- for the A.Y. 2009-10 and the return was processed u/s. 143(1) of the Act. Subsequently, Assessing Officer received information from the DGIT (Inv.,), Mumbai about the accommodation entries provided by various dealers and assessee was also one of the beneficiary from those dealers. The assessment was reopened U/s. 147 of the Act based on the information received from DGIT(Inv.), Mumbai, that the assessee has availed accommodation entries from various dealers who are said to be providing accommodation entries without there being transportation of any goods. In the reassessment proceedings, the assessee was required to prove the genuineness of the purchases made from various parties referred in Assessment Order. In response assessee furnished invoices of the parties, copies of bank statements, details of purchases of the alleged parties, quantitative tallying respect of entire purchases from the alleged parties and the corresponding sales and submitted that the purchases made are genuine. Assessee further submitted that the payments are made through account payee cheques as such contended that all the purchases are genuine. However, parties were not produced before the Assessing Officer.

(A.Y. 2009-10) M/s. Meghdoot Enterprise 3. Not convinced with the submissions of the assessee the Assessing Officer treated the purchases as non-genuine and he was of the opinion that assessee had obtained only accommodation entries without there being any transportation of materials and the assessee might have made purchases in the gray market. It is the finding of the Assessing Officer that assessee failed to produce the parties to prove parties are genuine. Assessing Officer observed that the notices issued u/s. 133(6) of the Act to the parties are returned unserved with a remark “Not known/left” and the assessee has not produced the parties before the Assessing Officer. Therefore, Assessing Officer treated ₹.3,25,697/- being 30% of the alleged bogus purchases of ₹.10,85,656/- for the A.Y. 2009-10 as non- genuine. On appeal the Ld.CIT(A) considering the evidences and various submissions of the assessee restricted the addition to 12.5% of the alleged bogus purchases.

(A.Y. 2009-10) M/s. Meghdoot Enterprise considered this aspect of the matter elaborately with reference to the submissions of the assessee and the averments in the Assessment Order and following various judicial pronouncements restricted the addition to 12.5% of the alleged bogus purchases. While holding so, the Ld.CIT(A) observed as under: - “7.3 Having considered the assessment order of the AO and the submissions of the assessee, it is seen that the main plank of assessee's arguments regarding the genuineness of the purchases was that the payment has been made by cheque/banking channels and which has not found favour with court's/Tribunal's pronouncements like in the case of M/s. Kanchwala Gems vs. JCIT [ITA No. 134/JP/2002 dated 10.12.2003 by the Hon'ble ITAT, herein it is held that payment by account payee cheque is not sufficient to establish the genuineness of purchases. The said decision, of the ITAT Jaipur has been affirmed by the Hon'ble Supreme Court in the case of M/s.Kachwala Gems vs. JCIT (2006) 206 CTR (SC) 585: 288 ITR (SC). Thus, the main contention of the appellant does not hold much water. The AO has formed his views about the bogus nature of the purchases made by the appellant from the above parties on the basis of statements recorded by the Sales Tax Authorities as well as further inquiries carried out by him independently. The information received from the Sales Tax authorities was only a piece of evidence to initiate in-depth independent investigation on the issue. It is not the case of the appellant that he has maintained a proper stock register. The appellant has not been able to establish one to one relationship/nexus between the purchases and sales. The assessee has not been able to produce the parties from whom purchases have been alleged to have been made. The appellant has also failed to produce corroborative evidence in the form of transportation bills etc to establish that the alleged purchases were actually transported to its premises and entered in the stock register. It is also a fact that the AO has not confronted the assessee with all the information in his possession like statements of the alleged hawala operators. Further, the AO stopped his investigation with the return of his 133(6) notices. He did not go ahead with money trail of cheques debited in the appellant's bank account towards the alleged purchases though such investigation do not lead to concrete results in the case of hawala dealers and investigators often reach dead end in such cases. It is not the case of the AO that the impugned purchases have conclusively been established as not having been effected at all as only found the impugned supplier as bogus parties.

(A.Y. 2009-10) M/s. Meghdoot Enterprise 7.3.1 In the facts and the circumstances of the case, the total purchases shown to be made from the aforesaid parties could not be held to be entirely bogus. It needs to be appreciated that in order to achieve the reported sales/turnover, there must be some corresponding purchases, whether effected from the alleged entry providers or from the grey market without bills. Thus, there ought to be some purchases made and hence, entire disallowance is not justified. In this regard, the ratio laid down by the Hon'ble Bombay High Court in the case of CIT v. Nikunj Eximp Enterprises (P.) Ltd., is quite relevant wherein Hon'ble High Court has held that - "When the assessee have filed letter of confirmations of the suppliers, Bank statements highlighting the payment entries through account payee cheque, copies of invoices, stock reconciliation statements before the AO; and merely because the suppliers did not appear before the AO, one cannot conclude that the purchases were not made by the assessee. The AO cannot disallow the purchases on the basis of suspicion because the suppliers were not produced before them." 7.3.2 In view of the discussion as above, it is clear that materials purchased and sold by the appellant cannot be doubted though it is not possible for the assessee to establish one to one nexus/link between purchases and sales. However, the fact of the matter remains that these transactions are not verifiable from the parties in question as it could not be established that purchases had been effected from the parties in question. Thus the purchase prices shown on the invoices produced could not be subjected to verification and as such it was difficult to establish the correctness of the purchase prices paid for the materials purchased. In the absence of any such verification as to the correctness of the price paid for the materials purchased by the appellant, the purchase price paid as mentioned on the invoices/bills cannot be accepted as the correct price paid for the goods purchased from such parties. In view of the same, the possibility of over-invoicing of the materials purchased to reduce the profit cannot be ruled out. Therefore, the gross profit rate shown by the appellant for the year under consideration cannot be relied upon. In the circumstances, the correct approach in such transactions would be to estimate the additional benefit or profit earned on these purchases and not to disallow the entire purchases from the aforesaid parties. In my view either the purchases from such parties is over invoiced or the purchases were actually made but not from the parties from which it was claimed to have been made and instead may have been purchased from grey market without proper billing or documentation. 7.3.2 In many judicial pronouncements on the issue, the Courts have taken a consistent view that in case of non-existent parties from which the purchases are shown to have been made, only a part of such purchases can be disallowed, particularly in such cases where the corresponding sales are (A.Y. 2009-10) M/s. Meghdoot Enterprise not doubted. Alternatively the profit embedded in such sales against the alleged bogus purchases should be brought to tax. 6.4.3.1 In the case of CIT-1 Vs Simit P. Sheth, of 2012, order dated 16/01/2013, while deciding a similar issue, the Hon'ble High Court of Gujarat has held that: '"We are broadly in agreement with the reasoning adopted ' by the Commissioner (Appeals) with respect to the nature of disputed. purchases of steel. it may be that the three suppliers from whom the assessee claimed to have purchased the steel did not own up to such sales. However, vital question while considering whether the entire amount of purchases should be added back to the income of the assessee or only the profit embedded therein was to ascertain whether the purchases themselves completely bogus and non existent or that the purchases were actually made but not from the parties from whom it was claimed to have been made and instead may have been purchased from grey market without proper billing or documentation. In the present case, CIT believed that when as a trader in steel the assessee sold certain quantity of steel, he would have purchased the same quantity from some source. When the total sale is accepted by the Assessing Officer, he could not have questioned the very basis of the purchases. In essence therefore, the Commissioner (Appeals) believed assessees theory that the purchases were not bogus but were made from the parties other than those mentioned in the books of accounts. That being the position, not the entire purchase price but only profit element embedded in such purchases can be added to the income of the assessee. So much is clear by decision of this Court. In particular, Court has also taken a similar view in case of Commissioner of Income Tax-IV vs. Vijay M Mistry Construction Ltd. vide order dated 10.01.2011 passed in Tax Appeal No. 1090 of 2009 and in case of Commissioner of Income Tax-I vs. Bholanath Poly Fab Pvt. Ltd. vide order dated 23.10.2012 passed in Tax Appeal No. 63 of 2012. The view taken by the Tribunal in case of Vijay Proteins Pvt. Ltd. Vs. CIT reported in 58 ITD 428 came to be approved." 6.4.4 Similarly, while dealing with an identical issue, in the case of CIT Vs. Bholanath Poly Fab (P) Ltd., I.T.A. No. 63 of 2012, in the order dated 23/10/2012, the Hon'ble High Court of Gujarat has held as under:- "We are of the opinion that the Tribunal committed no error. Whether the purchases themselves were bogus or whether the parties from whom such purchases were allegedly made were bogus is essentially a question of fact. The Tribunal having examined the evidence on record came to the conclusion that the assessee did purchase the cloth and sell the finished goods. In that view of the (A.Y. 2009-10) M/s. Meghdoot Enterprise matter, as natural corollary, not the entire amount covered under such purchase, but the profit element embedded therein would be subject to tax. This was the view of this court in the case of Sanjay Oilcake Industries v. CIT [2009] 316 ITR 274 (Guj). Such decision is also followed by this court in a judgment dated August 16,2011, in Tax Appeal No.679 of 2010 in the case of CIT v. KishorAmrutlal Patel. In the result, tax appeal is dismissed." (emphasis supplied) 4.5 In view of the facts and circumstances of the case and the judicial pronouncements cited above, what can be disallowed or taxed in the instant case, is the excess profit element embedded in such purchases shown to have been made from aforesaid parties. As narrated earlier, the AO in this case has held that various parties from whom the purchases were made by the appellant were found to be bogus, estimations ranging from 12.5% to 25% have been upheld by the Hon'ble Gujarat High Court, depending upon the nature of the business. 6.4.5.1 In a number/series of recent cases involving the scam unearthed by the Sales Tax Dept of Maharashtra whereby the hawala dealers were found to be issuing bogus purchase bills without delivery of goods, the Hon'ble Mumbai Tribunal has estimated the G.P addition on account of such bogus purchases as 12.5%, some of which are listed below: i) Smt. KiranNavinDoshi in dated 18.01.2017. ii) Ashwin Purshotam Bajaj & Anr. Vs ITO & Anr., in ITA No.4736/Mum/201 4,5207/Mum/201 4, dated: 14-12-2016. iii) ITO & Anr. Vs. Manish Kanji Patel & Anr., in ITA No. 7299/Mum/2014, 7154/Mum/2012 & 7300/Mum/2014, 7627/Mum/2014, dated: 18-05-2017. iv) Metropolitan Eximchem Ltd., ITA No. 2935/Mum/2015, dated: 29- 03-2017.; v) Ronak Metal Industries vs. ITO, ITA No. 722/Mum/2017 dtd. 04.09.2017; vi) ITO vs. Jugraj R. Jain, ITA No. 2571/Mum/2016 & 2572/M/2016 dtd. 02.08.2017; vii) B.J. Exports vs. Asstt. Commissioner of Income tax ITA No. 5442- 5444/Mum/2016 dated 13.09.2017; viii) Batliboi Environmental Engineering Ltd vs Deputy Commissioner. of Income-tax, ITA No. 2840 & 3482/M/2015 dated 15.03.2017, (A.Y. 2009-10) M/s. Meghdoot Enterprise ix) Deputy Commissioner of Income-tax & Anr. Vs. Remi Process Plant & Machinery Ltd. & Anr., 1817/M/2015 dated 12.03.2017. x) Smt. Usha B. Agarwal vs. ITO, ITA No. 7034/Mum/2016, dated 01.09.2017. In view of the above discussed factual matric and precedents, I am of the view that estimation of 12.5% of profit embedded in impugned purchases shown from the alleged hawala party and adding the same to the total income returned, would meet the end of justice. Therefore, I direct the AO to estimate profit @ 12.5% of the alleged bogus purchases, which works out to Rs. 1,35,707/- (12.5% of Rs. 10,85,656/-) and restrict the addition to Rs.1,35,707/-. The appellant gets a relief for the balance amount of Rs.1,89,990/-. Hence, the Ground. of appeal No. 3 to 4 of the appellant are Partly Allowed.”