KITTENS SHOES AND ALLIED PRODUCTS PVT. LTD.,MUMBAI vs. ITO 1(2)(2), MUMBAI

Date of Hearing 17/02/2020 Date of Pronouncement 13/03/2020 आदेश आदेश / O R D E R आदेश आदेश PER G.MANJUNATHA (A.M):

This appeal filed by the assessee is directed against order of the ld. Commissioner of Income Tax (Appeals)-2, Mumbai dated 31/07/2018 and it pertains to the A.Y 2011-12.

1. On the facts and circumstances of the case and under the provisions of Law. The Learned Commissioner of Income Tax (Appeal-2) Mumbai has erred in retaining the disallowance atl2.5% of the purchases made from alleged suspicious dealers.

2. On the facts and circumstances of the case and under me provisions of Law. The Learned Commissioner of Income tax (Appeal-2) Mumbai has erred in disallowing Gross Purchase from Alleged Suspicious Dealers without considering the purchase return to those parties during the year under Appeal.

3. On the facts and circumstances of the case and under the provisions of Law, The Learned Commissioner of Income Tax (Appeal-2) Mumbai has erred in disallowing Gross Purchase from Alleged Suspicious Dealers without considering the fact that our Appellant accounts only net purchases in profit and loss account. The VAT Tax component is reflected in Balance Sheet in duties and taxes. 4. On the facts and circumstances of the case and under the provisions of Law, The Learned Commissioner of Income Tax (Appeal-2) Mumbai has erred in giving any impact of the brought forward business losses and unabsorbed depreciation without rejecting the same. The Learned Income Tax Office 2(1)(1) too had remained silent on the impact of brought forward business loss and unabsorbed depreciation. Your Appellant requested the Hon" Bench lo consider the same in present proceedings. 5. On the facts and circumstances of the case and under the provisions of Law, The Learned Commissioner of Income Tax (Appeal-2) Mumbai has erred in retaining Interest u/s. 234A of Rs.50,707/- without Appreciating the fact that the Return of Income was filed in Time. 6. For these and other reasons which may be adduced and presented at the time of hearing, the Appellant praise before your honour lo set aside the order of the Learned Commissioner of Income Tax (Appeals - 2) and lo delete the Addition made by the Assessing Officer which is bad in law.

3. The brief facts of the case are that the assessee is engaged in the business of Trader in Kids Shoes and accessories, filed its return of income for AY 2011-12 on 30/09/2011, declaring the total income at Rs. 23,23,417/- and said Return was processed u/s 143(1) of the I.T.Act, 1961/-. The case has been, subsequently reopened u/s 147 of the Act, on the basis of information received from DGIT, investigation, Mumbai, as per which, Sales Tax Authorities of Government of Maharashtra had taken actions against number of Hawala dealers, who had issued bogus purchase bills to various parties in Mumbai and other places. As per list of beneficiaries, the assessee is one of the beneficiary, who had taken accommodation bills of bogus purchases from M/s M N Comtrade Pvt Ltd amounting to Rs. 1,29,938/-. The case was selected for scrutiny and the assessment has been completed u/s. 143(3).r.w.s. 147 of the I.T.Act, 1961 on 29/03/2016 and determined total income of Rs. 23,55,900/-, after making additions of 25% gross profit on alleged bogus purchase from those parties and made additions of Rs. 32,485/-.

4. Aggrieved by the assessment order, the assesee preferred an appeal before the Ld.CIT(A). Before the Ld.CIT(A), the assesse has reitrated its submissions made before the AO. The sum and substance of arguments of the assessee before the Ld.CIT(A) are that purchase from the above party is genuine, which is supported by necessary evidences. Therefore, no additions could be made on the basis of information received from third party. The Ld.CIT(A), after considering relevant submission of the assessee and also, by following the decision of Hon’ble Gujarat High Court, in the case of CIT vs. Simith P. Sheth (356 ITR 451) has scaled down addition made by the AO towards alleged bogus purchases to 12.50% gross profit on total purchases from those parties.

5. None appeared for the assessee. We have heard the Ld. DR, perused the material available on record and gone through orders of the authorities below along with case laws cited by both parties. We find that the Ld. AO has made addition of 25% profit on alleged bogus purchases on the ground that the assessee is one of the beneficiary of accommodation entries of bogus purchase bills issued by Hawala dealers. According to the Ld. AO, although assesee has filed certain basic evidences, but failed to file further evidence in the backdrop of clear finding by the Sales Tax Department, Maharashtra that those parties are involved in providing accommodation entries without actual delivery of goods. The Ld. AO had also taken support from the investigation conducted during the course of assessment proceedings, as per which notice issued u/s 133(6) to the parties were returned un-served by the postal authorities. Therefore, he came to the conclusion that purchases from the said parties are bogus in nature. It is the contentions of the assessee before the lower authorities that purchases from the above party are supported by necessary evidences. It has furnished all possible evidences, including books of accounts; stock details and bank statement to prove that payment against said purchases have been made through proper banking channels.

6 Having considered arguments of the ld. DR and also, material available on record, we find that both the sides have failed to prove the case in their favour with necessary evidences. Although, assessee has filed certain basic evidences, but failed to file further evidences to conclusively prove purchases to the satisfactions of the Ld.AO. Further, mere payment by cheque does not prove the genuineness of purchase, more particularly when other circumstantial evidence says otherwise. At the same time, the Ld. AO had also failed to take the investigation to a logical conclusion by carrying out necessary enquires, but he solely relied upon information received from investigation wing, which was further supported by information received from Maharashtra Sales Tax Department. The AO neither pointed out any descrepanices in books of accounts nor made out a case of sales outside books of accounts. In fact, the AO did not disputed sales declared for the year. Under these circumstances, it is difficult to accept arguments of both the sides. Further, in a case where purchases are considered to be purchased from suspicious/hawala dealers, various High Courts and Tribunals had considered an identical issue in light of investigation carried out by the Sales Tax Department and held that in case of purchases claims to have made from alleged hawala dealers, only profit element embedded in those purchases needs to be taxed, but not total purchase from those parties. The Hon’ble Gujarat High Court, in the case of CIT vs Simith P.Sheth 356 ITR 451 had considered a similar issue and held that at the time of estimation of profit from alleged bogus purchases no uniform yardsticks could be adopted, but it depends upon facts of each case. The ITAT, Mumbai, in number of cases had considered an identical issue and depending upon facts of each case, directed the Ld.AO to estimate gross profit of 10% to 15% on total alleged bogus purchases. In this case, considering the nature of business of the assessee the Ld. AO has made 25% profit additions, whereas the ld. Ld.CIT(A) has scaled down addition to 12.50% gross profit on alleged bogus purchases. Although, both authorities have taken different rate of profit for estimation of income from alleged bogus purchase, but no one could support said rate of gross profit with necessary evidences or any comparable cases. However, the profit rate adopted by the ld. CIT(A) is supported by various decisions of High Courts and Tribunals. Therefore, considering facts and circumstances of this case and consistent with view taken by the Co-ordinate Bench in number of cases, we are of the considered opinion that the ld. CIT(A) has taken a fair view and has estimated 12.50% gross profit on alleged bogus purchases to settle dispute between the parties and hence, we are inclined to uphold order of the ld. CIT(A) and dismiss appeal filed by the assessee.

Order pronounced in the open court on this 13/03/2020