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Income Tax Appellate Tribunal, “G” Bench, Mumbai
Before: Shri Manoj Kumar Aggarwal & Shri Ravish Sood
Appellant by: Shri Sunil Hirawat Respondent by: Shri N. Padmanaban, Sr. A.R Date of Hearing: 09.01.2020 Date of Pronouncement: 10.01.2020 O R D E R
PER RAVISH SOOD, JM
The present appeals filed by the assessee are directed against the respective orders passed by the CIT(A)-51, Mumbai, dated 16.03.2018 for A.Y. 2010-11 and A.Y. 2011- 12, which in turn arises from the respective assessment orders passed under Sec. 143(3) r.w.s 147 of the Income Tax Act 1961 (for short „Act‟) for the aforementioned years. As the issues involved in the captioned appeals are inextricably interlinked or rather interwoven, therefore, the same are being taken up and disposed off by way of a common order. We shall first advert to the appeal of the assessee for A.Y. 2010-11. The assessee has assailed the impugned order on the following grounds of appeal before us: “1. On facts and in law, the learned Commissioner of Income-tax (Appeals) (hereinafter referred to as the id. CIT(A)") had failed to appreciate that the jurisdictional conditions precedent to issue of notice u/s.148 not complied, the assessment made u/s.143(3) r.w.s. 147 is bad-in-law. & 3770/Mum/2018 A.Ys. 2010-11 & 2011-12
2. M/s Sobhagmull Gokalchand Jewellers Vs. The Asstt. Commissioner of Income-tax-19(3)
2. On facts and in law, the Ld. CIT(A) had erred in holding that the proceedings u/s.147 are not bad-in-law.
3. On facts and in law, the Ld. CIT(A) had erred in confirming the addition of Rs.1,51,113/- without appreciating the fact that neither statements of the person concerned were given to the appellant nor any opportunity to cross examine the person was given to the appellant, which is against the principles of natural justice. 4. On facts and in law, the Ld. CIT(A) had erred in confirming the additional gross profit of Rs.1,51,113/- by adopting the rate of 3% on the alleged bogus purchase of Rs.50,37,093/- without appreciating the fact that the appellant has also shown gross profit on the said purchase @ 8.06%. Under the facts and circumstances of the matter, the Ld. CIT(A) ought to have directed the learned Assessing Officer (Ld. AO) to delete the entire addition made by Ld. AO. 5. The Appellant craves leave to add, alter, vary, omit, substitute or amend the above grounds of appeal, at any time before or at, the time of hearing of the appeal, so as to enable the Hon. ITAT to decide this appeal according to law.”
Briefly stated, the assessee firm which is engaged in the business of a jeweller had filed its return of income for A.Y. 2010-11 on 25.06.2011, declaring its total income at Rs. nil. The return of income filed by the assessee was processed as such under Sec. 143(1) of the Act. On the basis of information received from the DGIT(Inv.), Mumbai, that the assessee as a beneficiary had obtained bogus purchase bills from certain hawala operators, its case was reopened under Sec. 147of the Act.
During the course of the assessment proceedings, it was observed by the A.O that the assessee had claimed to have made purchases from the following three tainted parties:
Sr. No. Name of the hawala parties Bill amount 1. Mukti Exports 3846308 2 Navkar Diamonds 439032 3. Balaji Impex 751753 Total 50,37,093 On being called upon to substantiate the genuineness and veracity of the aforesaid purchase transactions, the assessee furnished certain supporting documentary evidence. After deliberating on the material filed by the assessee, the A.O was not persuaded to accept its claim that it had made genuine purchases from the aforementioned parties. On the basis of necessary deliberations as regards the modus operandi that was adopted by Shri Bhanwarlal Jain and his group entities/associates, the A.O held a conviction that the assessee had purchased the goods from the open/grey market and only procured bogus purchase bills from the aforementioned parties. As such, on the basis of his aforesaid observations the A.O was of & 3770/Mum/2018 A.Ys. 2010-11 & 2011-12 3 M/s Sobhagmull Gokalchand Jewellers Vs. The Asstt. Commissioner of Income-tax-19(3) the view that the assessee would had benefitted by procuring the goods at a discounted value from the dealers operating in the unorganised open/grey market, as against the value at which the purchases were booked in its books of accounts on the basis of the bogus bills of the aforementioned parties. Accordingly, the A.O quantifying the said profit element @ 5% of the aggregate value of the impugned purchases, therein made an addition of Rs.2,51,855/- [5% of Rs.50,37,093/-] and assessed the income of the assessee firm at Rs.53,65,910/-.
Aggrieved, the assessee assailed the assessment in appeal before the CIT(A). It was observed by the CIT(A) that as per the CBDT Instruction No. 2/08, dated 22.06.2008, the profit margin in respect of gems & jewellery business varied from 6% to 8%. As such, it was observed by him that as per the Income Tax Department 6% of profit margin was considered to be reasonable in the business of gems & jewellery. However, it was observed by him that the aforesaid margin of 6% would be reasonable for an assessee which was not indulging in hawala purchases. Observing, that the assessee during the year had shown a G.P rate of 7.46% on sales and 8.06% on the purchases, the CIT(A) was of the view that the assessee had shown a healthy G.P rate. At the same time, the CIT(A) observed that as the assessee would have procured the goods at a discounted value from the open/grey market, therefore, he would have generated an additional profit from making of such purchases. On the basis of his aforesaid deliberations, the CIT(A) restricted the addition to 3% of the aggregate value of the bogus purchases of Rs.50,37,093/- and sustained an addition of Rs.1,51,113/-.
The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. It was submitted by the ld. A.R that in the assesses own case for A.Y. 2008- 09, A.Y. 2009-10 and A.Y. 2013-14, the Tribunal by a consolidated order viz. M/s Sobhagmull Gokalchand Jewellers Vs. ACIT-19(3), Mumbai [ITA No.3767, 3768 & 3771/Mum/2018, dated 31.07.2019], had by relying on the judgment of Hon‟ble High Court of Bombay in the case of Pr. CIT Vs. M/s Mohhomad Haji Adam & Co. [ITA No. 1004 of 2016, dated 11.02.2019] directed the A.O to restrict the addition/disallowance only to the extent of bringing the gross profit rate on alleged bogus purchase at the same rate of the other genuine purchases declared by the assessee, after calling for details and verification of the records. The ld. A.R had drawn our attention to the observations of the Tribunal in its aforesaid order and also placed on record a copy of the aforesaid order. It was thus submitted by the ld. A.R, that as the issue involved in & 3770/Mum/2018 A.Ys. 2010-11 & 2011-12 4 M/s Sobhagmull Gokalchand Jewellers Vs. The Asstt. Commissioner of Income-tax-19(3)
the present appeal was squarely covered by the aforesaid order of the Tribunal in the assesses own case, therefore, the matter may be restored to the file of the A.O with a similar direction.
Per contra, the ld. Departmental Representative (for short „D.R‟) did not controvert the aforesaid claim of the assessee that the issue involved in the present appeal was squarely covered by the order of the Tribunal in the assessees own case for the aforementioned years.
We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record, as well as the judicial pronouncements relied upon by them. Admittedly, the assessee in the case before us had failed to substantiate the authenticity of the impugned purchase transactions to the satisfaction of the A.O. In fact, we find that the solitary issue involved in the present appeal before us hinges around the aspect of quantification of the profit which the assessee would have made by procuring the goods at a discounted price from the open/grey market. As observed by us hereinabove, while for the A.O had worked the profit @ 5% of the aggregate value of the impugned purchases, the same was however scaled down by the CIT(A) to 3%.
We have given a thoughtful consideration and find that the issue as regards the quantification of the profit involved in making of the purchases by the assessee from the open/grey market is squarely covered by the order of the ITAT “SMC”, Mumbai, in the assesses own case for A.Ys. 2008-09, 2009-10 and 2013-14 in M/s Sobhagmull Gokalchand Jewellers Vs. ACIT-19(3), Mumbai [ITA No.3767, 3768 & 3771/Mum/2018, dated 31.07.2019]. On a perusal of the aforesaid order, we find that the Tribunal by drawing support from the judgment of the Hon’ble High Court of Bombay in the case of Pr. CIT Vs. M/s Mohhomad Haji Adam & Co. [ITA No. 1004 of 2016, dated 11.02.2019], had directed the A.O to restrict the addition/disallowance to the extent of bringing the gross profit rate on the impugned bogus purchases at the same rate of the other genuine purchases declared by the assessee after calling for the details and the verification of records. As the facts and the issue involved in the captioned appeals remains the same as was there before the Tribunal in the aforementioned years, therefore, finding no reason to take a different view, we respectfully follow the same. Accordingly, we restore the matter to the file of the A.O with a direction to restrict the addition/disallowance only to the extent of bringing the G.P rate of alleged bogus purchase at the same rate as that of the other genuine purchases declared by the assessee & 3770/Mum/2018 A.Ys. 2010-11 & 2011-12 5 M/s Sobhagmull Gokalchand Jewellers Vs. The Asstt. Commissioner of Income-tax-19(3)
after calling for the details and verification of records. Needless to say, the assessee shall in the course of the „set aside‟ proceedings provide the requisite details as called for by the A.O. As such, the order passed by the CIT(A) is set aside in terms of our aforesaid observations.
Resultantly, the appeal filed by the assessee is allowed for statistical purposes. A.Y. 2011-12 10. We shall now advert to the appeal of the assessee for A.Y. 2011-12 in ITA No. 3770/Mum/2018. The assessee has assailed the impugned order on the following grounds of appeal before us: “1. On facts and in law, the learned Commissioner of Income -tax (Appeals) (hereinafter referred to as the ld. CIT(A)") had failed to appreciate that the jurisdictional conditions precedent to issue of notice u/s.148 not complied, the assessment made u/s.143(3) r.w.s. 147 is bad-in-law.
2. On facts and in law, the Ld. CIT(A) had erred in holding that the proceedings u/s.147 are not bad-in-law.
3. On facts and in law, the Ld. CIT(A) had erred in confirming the addition of Rs.19,58,392/- without appreciating the fact that neither statements of the person concerned were given to the appellant nor any opportunity to cross examine the person was given to the appellant, which is against the principles of natural justice.
4. On facts and in law, the Ld. CIT(A) had erred in confirming the additional gross profit of Rs.19,58,392/- by adopting the rate of 3% on the alleged bogus purchase of Rs.6,52,79,727/- without appreciating the fact that the appellant has also shown gross profit on the said purchase @ 7.96%. Under the facts and circumstances of the matter, the Ld. CIT(A) ought to have directed the learned Assessing Officer (Ld. AO) to delete the entire addition made by Ld. AO.
5. The Appellant craves leave to add, alter, vary, omit, substitute or amend the above grounds of appeal, at any time before or at, the time of hearing of the appeal, so as to enable the Hon‟ble ITAT to decide this appeal according to law.”
Briefly stated, the assessee had filed its return of income for A.Y. 2011-12 on 08.09.2011, declaring its total income at Rs.nil. The return of income filed by the assessee firm was processed as such under Sec.143(1) of the Act. On the basis of information received from the DGIT (Inv.), Mumbai, that the assessee had procured bogus purchase bills from certain hawala parties without actual supply of material, its case was reopened under Sec.147 of the Act.
During the course of the assessment proceedings it was observed by the A.O that the assessee had claimed to have made purchases from the following 7 parties: & 3770/Mum/2018 A.Ys. 2010-11 & 2011-12 6 M/s Sobhagmull Gokalchand Jewellers Vs. The Asstt. Commissioner of Income-tax-19(3)
Sr. No. Name of the hawala parties Bill amount 1. Malhar Exports 9159085 2. Navkar Diamonds 10423988 3. Jewel Diam 9515806 4. Rose Impex 6720838 5. Megha Gems 7886662 6. Suman Exports 13372362 7. Meenakshi Exports 8200986 Total 65279727 In order to verify the genuineness and veracity of the aforesaid purchase transactions, the A.O called upon the assessee to furnish supporting documentary evidence. In compliance, certain documentary evidence was filed by the assessee in order to impress upon the A.O that it had made genuine purchases from the aforementioned parties. However, the A.O was not inspired with the aforesaid claim of the assessee and therein concluded that the assessee had procured the goods under consideration from the open/grey market, and had only obtained bogus purchase bills from the aforementioned parties. Accordingly, the A.O holding a conviction that the assessee would have made a profit by procuring the goods from the open/grey market, therein made an addition of 5% of the aggregate value of the purchases of Rs.6,52,79,727/-. As such, the A.O made an addition of Rs.32,63,986/- in the hands of the assessee.
On appeal, the CIT(A) scaled down the aforesaid addition to 3% of the aggregate value of the aforesaid purchases. As such, the CIT(A) sustained the addition to the extent of Rs.19,58,392/-.
The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. We find that as the facts and the issue involved in the aforementioned appeal remains the same as were there before us in appeal of the assessee for the immediately preceding year i.e A.Y. 2010-11 in , therefore, our order therein passed shall apply mutatis mutandis for disposal of the present appeal viz. for A.Y. 2011-12.
Resultantly, the appeal of the assessee is allowed for statistical purposes in terms of our aforesaid observations.