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Income Tax Appellate Tribunal, “SMC”, BENCH MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI G. MANJUNATHA
Date of Hearing 27/01/2020 Date of Pronouncement 12 /02/2020 आदेश आदेश / O R D E R आदेश आदेश PER G.MANJUNATHA (A.M):
This appeal filed by the revenue is directed against, the order of the Ld. Commissioner of Income Tax (Appeals)–12, Mumbai, dated 30/11/2018 and it pertains to Assessment Year 2012-13.
The revenue has raised the following grounds of appeal: 1. "On the facts and in view of the circumstances of the case aid in law, the Id,CIT(A) erred in deleting the quantum addition to the extent of Rs.3,06,606/- made by the AO on account of bogus purchases from one of the concern viz., M/s. Kingstar belonging to Shri Gautam Jain Group by not appreciating the fact that assesses had failed to bring the confirmation of transaction with the purchase parties, as also, the proof of transportation is also not brought on record .
2. "On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in. deleting the quantum addition ignoring that the information on account of bogus purchases is received from the Investigation Wing of Income tax Dept, Mumbai wherein it is established
Jepi chemo-Pack Pvt.Ltd. that the said purchase party -M/s. Kingstar belonging to Shri Gautam Jain Group was engaged in the business of providing accommodation entries only.' 3. "On the facts and in the circumstances of the case and in iaw, ld,CIT(A} has sired in deleting the quantum addition to the extent of Rs. 3,06,606/- made by the AO on account of bogus bill purchases from M/s. Kingstar by not appreciating that the assesses had failed to furnish the confirmation of transaction with the purchase party, as also, the proof of delivery '." 4. "Though the this effect in this case is Rs.2,02,710/-, however this appeal has been filed because it is covered by exception mentioned in para 10{e) of the CBDT Circular No 3/2018 dt 11-7-2018 which is subsequently clarified by Board letter dtd 20/08/2018 vide no. 279/mis./142/2007-ITJ)Pt.)"
5. The Appellant prays that The order of the CIT (Appeals) on the above grounds be set-aside and that of the AO be restored.
The Appellant craves leave to amend or alter tiny ground or to submit additional new ground, which may be necessary. 3. The brief facts of the case are that the assessee company is engaged in the business of manufacturing of self-adhesive sticker and diamond jewelry, filed its return of income for AY 2012-13 on 20/12/2012, declaring total income at Rs. 2,92,850/- 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 various parties as listed by the AO in para 4 of his assessment order amounting to Rs. 3,50,406/-. The case was selected for scrutiny and the assessment has been completed u/s. 143(3).r.w.s.
Jepi chemo-Pack Pvt.Ltd. 147 of the I.T.Act, 1961 on 15/12/2016 and determined total income of Rs. 6,46,760/-, after making 100% additions towards alleged bogus purchase from those parties and made additions of Rs. 3,50,910/-.
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) scaled down addition made by the AO towards alleged bogus purchases to 12.50% gross profit on total purchases from those parties. The relevant findings of the Ld.CIT(A) are as under:-
4.2 1 have considered the assessment order and the submissions of the appellant including the case laws cited. The AO held in the assessment order that the appellant produced the details with regard to purchases made from the parties and copy of bank statement indicating the payment made to the seller parties. It is noticed that on account of non-availability of the supplier at the given address the AO added entire bogus purchases as unexplained purchases u/s 69C of the Act. Section 69C reads. "Where in any financial year an assesses has incurred any expenditure and he offers no explanation about the source of such expenditure or part thereof, or the explanation, if any,, offered by him is not, in the opinion of the AO, satisfactory the amount covered by such, expenditure or part thereof, as the case may be, may be deemed to be the income of the assesse for such financial year. this can be seen from the provision, for applying the section 69C, what is important is that there should be no explanation about the source of expenditure or that the explanation offered is not found satisfactory. Here in this case, the appellant furnished an explanation of source from his bank account along with supporting evidence of purchase invoices. Therefore, in this case, the source of expenditure for purchases stands explained through the bank account. Therefore in invoking of section 69C in the present case is not proper. 4.3 It is seen that many Benches of 1TAT and Hon’ble High Courts have held that when purchases are supported by sufficient documentary evidences, then merely because of non-appearance before the AO, one cannot conclude that the purchases were not made by the assessee. Reliance is placed on Nlkunj Eximp Enterprises (P.) Ltd. v. CIT 216 Taxman 171 (Bom.), CIT v, Nangalia Fabrics (P,)Ltd. 220 Taxmann 17 (Guj.), CIT v, MK, Bros, 163 1TR 249 (Guj.), Asstt.CiT v. Akruti Dyeing & Printing Mills (?,)UA. Dy. CIT v. Adinat Industries [2001] 2521TR 476 (Guj.), CIT v. Precious Jewels Corpnl7 taxmann.com 264 (Raj.), CIT v. Rajesh P. Soni [Tax Appeal No,1107 of 2006, dated 27-2-2012.].
4.4 In this case the appellant produced bank account statement to prove payment, purchase bills, stock register, manufacture jewelry details using the purchased cut and polished diamonds and corresponding sale bills to prove the genuineness of the purchases. It is also a fact on record that the Assessing Officer has not doubted the sales affected by the appellant. Thus, it is logical to conclude that without corresponding purchases being affected, the appellant could not have made the sales. Merely relying upon the information from the PCIT(lnv,)-l, Mumbai the Assessing Officer could not have treated the purchases as bogus. The appellant has brought documentary evidences on record to prove genuineness of such transactions, the action of the Assessing Officer in ignoring them cannot be U When the payment to the concerned parties are through proper banking and there is no evidence before the AO that the payments made were again back to the appellant, the addition of bogus purchases is not sustainable in and facts. Only corollary that follows in such situation is that the appellant could have obtained the accommodation bills for the material purchased locally. In other words the entities may not be the actual supplier but may have provided the bills for the material purchased locally. This is not case in which the signed blank cheque books etc, found with the buyer to say that the purchases of material were not at all made but purchases were inflated. Therefore the decision of the Supreme Court in the case of N K Proteins Ltd 2oC taxman 0022(SC) would not apply to the case. Therefore the saving on account of VAT and other incidental charges made by the appellant on the said bogus purchases can be brought to tax as additional profit. Keeping in view the totality of facts and circumstances of the case, the disallowance made by the AO is restricted to 12.5% of such purchases. Therefore the AO is directed to estimate the 12,5% of Rs.3,50,406 and modify the addition accordingly. Appellant gets part relief. This ground is partly allowed.
Jepi chemo-Pack Pvt.Ltd.
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. We find that the Ld. AO has made 100% addition 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. 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 Jepi chemo-Pack Pvt.Ltd. investigation wing, which was further supported by information received from Maharashtra Sales Tax Department. 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 100% additions, whereas the Ld.CIT(A) has scaled down addition to 12.50% gross profit on total alleged bogus purchase. 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. 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 fair veiw and estimated 12.50% gross profit on alleged bogus purchases to settle dispute between the parties and Jepi chemo-Pack Pvt.Ltd. hence, we are inclined to uphold order of the ld. CIT(A) and dismiss appeal filed by the Revenue.
In the result, appeal filed by the revenue is dismissed.
Order pronounced in the open court on this 12/02/2020