INCOME TAX OFFICER 20(2)(3), MUMBAI vs. SHRI KAIZAD RUSHI ANKLASARIA, MUMBAI

Since, the facts of both the cases are common and the issues involved are identical in the appeals as well as in cross objections, we take the facts of the case pertaining to the AY 2010-11 as lead case.

The assessee engaged in the business of manufacturing leather goods and gift articles, filed its return of income for the assessment year under consideration declaring total income of Rs. 10,27,300/-. Since, the case was selected for scrutiny, AO issued notice u/s 143 (2) and 142 (1) of the Act. In response to the said notices, the authorized representative of the assessee appeared before the AO and submitted the details. During the course of assessment proceedings AO received information from the Sales Tax Department, Maharashtra through the office of DGIT (Inv) Mumbai to the effect that the assessee, in order to inflate purchases, had obtained bogus bills from Akshar Distributors Pvt. Ltd. amounting to Rs. 1,86,300/- without purchasing any goods/material. Accordingly, the AO asked the AR to furnish the details/documentary evidence in order to prove the genuineness of the transaction of purchase from Akshar Distributors. The AR contended that the assessee had genuinely purchased the goods from the said party and used the same in the course of manufacturing leather goods, however, the assessee had not made any payment as on 31.03.2011 to the said party. The AO rejected the contention of the assessee and holding the questioned purchases as bogus, made addition of the said amount to the income of the assessee. Accordingly, the AO inter alia making addition of the said amount, determined the total income of the assessee at Rs. 13,06,210/- as against Rs. 10,27,300/- filed in the return of income. In the first appeal, the Ld. CIT (A) restricted the addition CO No. 202 & 203/MUM/2019 Assessment Years: 2010-11 and 2011-12 to 12.5% of the total amount of bogus purchases determined by the AO. The revenue is in appeal against the said findings of the Ld. CIT (A).

The revenue has challenged the impugned order passed by the Ld. CIT (A) on the following effective grounds:- 1. “On the facts and in the circumstances of the case and in law, the ld. CIT (A) has erred in granting relief of Rs. 1,63,012/- by restricting the addition to 12.5% of alleged bogus purchases.

On the facts and in the circumstances of the case ad in law, the ld. CIT (A) failed to appreciate the fact that onus is on the assessee to explain and substantiate the genuineness and true nature purchases transaction.

On the facts and in the circumstances of the case and in law, the ld. CIT (A) failed to consider the applicability of section 40A (3) of the Income Tax Act, 1961, when he has stated in para 5.12 of the order that the purchases have been made from the parties other than those mentioned in the books of accounts.

The appellant pray that appeal is being filed because it is covered under the exception provided in para 10(e) of the amended instruction no. 3 dated 20.08.2018. 5. Before us, the Ld. departmental representative (DR) relying on the findings of the AO submitted that since the assessee has failed to discharge the primary onus of proving genuineness of the transaction of purchase, the Ld. CIT (A) ought to have confirmed the addition made by the AO.

On the other hand the Ld. counsel for the assessee submitted before us that since the assessee has proved the genuineness of the purchases by submitting that documentary evidence, the Ld. CIT(A) ought to have deleted the addition of the total amount of alleged bogus purchases determined by the AO. Placing reliance on the judgment of the Hon’ble Bombay High Court in the case of CIT vs. Nikunj Eximp Enterprises Pvt. Ltd, the Ld. counsel submitted that merely because the assessee could not produce the parties before the authorities below, it could not be concluded that the goods were not purchased. The Ld. counsel further submitted the Ld. CIT (A) has wrongly CO No. 202 & 203/MUM/2019 Assessment Years: 2010-11 and 2011-12 sustained the addition to 12.5% of the total amount of the alleged bogus purchases, hence there is no merit in the revenue’s appeal.

We have carefully gone through the relevant record including the cases relied upon by the authorities below. We are convinced from the material on record that the assessee has failed to establish the genuineness of the purchases in question by adducing cogent and convincing evidence. The notice issued by the AO to the said party was received back un-served. The assessee also failed to produce the party before the AO for verification. Hence, in our considered view, the AO has rightly concluded that the assessee has not made the questioned purchases from the party mentioned in the books of account of the assessee. However, the AO has not rejected the sale of the goods in question. The above-mentioned facts give rise to the conclusion that the assessee had purchased the goods in question from grey market without paying the tax applicable during the relevant period. Under these circumstances, the AO had no option but to make an addition on estimation basis considering the applicable rate of VAT or other taxes and the profit embedded in the said transaction. But, in the present case the AO has made addition of the entire amount of purchases. The Ld. CIT(A) has restricted the addition to 12.5%, holding that the estimate reached at by the AO is on much higher side. The operative part of the decision of the Ld. CIT (A) reads as under:- “5.11 in the present facts and circumstances of the case, it can be fairly assumed that the appellant only took bills from the above parties to explain the purchases made albeit from open market.

12 Thus in view of the above facts and circumstances of the case and the recent judgments quoted as above, it is observed that the likelihood of the purchase price being inflated cannot be ruled out and therefore in view of the above, the entire purchase from the aforesaid parties cannot be held to be bogus but it is held to have been made from the parties other than those mentioned in the books of accounts and that being the position, not the entire purchase price but only the profit element embedded in such purchases is required to be taxed. CO No. 202 & 203/MUM/2019 Assessment Years: 2010-11 and 2011-12

13 Therefore, the possible profit out of purchases made through non genuine parties is required to be estimated. The estimation of rate of profit must be necessarily vary with the nature of business and no uniform yardstick should be adopted for which reliance is placed on the recent judgment in the case of CIT vs. Simit P. Seth 256 ITR 461 (Guj) of Hon’ble Gujarat High Court wherein disallowance on account of bogus purchases in the case of traders was sustained at 12.5% of the alleged bogus purchases. 5.14 in such case, the best course of action would be to apply GP ratio and confirm certain percentage of alleged purchases to cover any leakage of revenue. In the given circumstances, in view of the above facts, I propose to apply 12.5% GP on the alleged purchases whish seems to be justified in view of the nature of business of the appellant and as also agreed by the appellant during the appellate proceedings. In view of the above, the addition is restricted to 12.5% of the purchases (of Rs. 1,86300/-). Accordingly, this ground of appeal is partly allowed.”

The Ld CIT(A) has restricted the addition to 12.5%, basically on the ground that the addition of total amount of bogus purchases is on much higher side. In the case of CIT vs. Simit P. Seth 356 ITR 451(Guj), the Hon’ble Gujrat High Court has upheld the decision of the Tribunal and sustained the addition @12.5% of the total amount of bogus purchases determined by the Tribunal, holding that only profit element embedded in such purchases can be added to the income of the assessee. Hence, in our considered view, the order passed by the Ld. CIT(A) is based on the principles of law laid down by the Hon’ble Gujarat High Court in the aforesaid case. On the other hand, the law relied upon by the Ld. DR is distinguishable on facts. Hence, we do not find any reason to interfere with the order of the Ld. CIT (A). Accordingly, we uphold the order of the Ld. CIT (A) and dismiss the sole ground of the revenue’s appeal and direct the AO to make addition of 12.5% of the total amount of questioned purchases. CO No. 202 & 203/MUM/2019 Assessment Years: 2010-11 and 2011-12 CO No. 203/MUM/2019 (Assessment Year: 2010-2011)

The learned assessing officer as well as Hon'ble CIT(A) erred in using the affidavit /statement issued or submitted by the alleged hawala dealer to the sales tax authorities against the assessee without giving opportunities to cross verify or examines the said affidavit /statement by the assessee. Violating the principle of natural justice.

The learned assessing officer as well as Hon'ble CIT (A) failed to bring on record or corroborate any findings whether the sale made against such purchase is genuine or not.

The fact is recorded by the learned assessing officer that the percentage of gross profit as well as net profit as compare to the immediately previous year is marginally differs. Hence, learned Assessing Officer logically fails to prove the purpose of obtaining alleged bogus purchase bills. Even the assessing officer fail to corroborate the fact whether there is abnormal cash deposit or withdrawal from the bank account taken place around the alleged bogus purchase transaction date or not which may indicate that such bogus transaction taken place.

The learned assessing officer didn't rejected the audited books of accounts while disallowing the Purchases as well as Conveyance and miscellaneous Expenses, Travelling Expenses, Notional Interest, Motor Car Expenses, Depreciation on motor car expenses on ad-hoc basis which can be done only in case of best judgment assessment under section 144 CO No. 202 & 203/MUM/2019 Assessment Years: 2010-11 and 2011-12 and not under regular assessment under section 143(3) or 147. 6. The Hon’ble CIT(A) erred in framing Judgement by recording reference about the records and information available and procedures followed by learned Assessing Officer in para 5, 5.1, 5.2, 5,3, 5.4, 5,5 of the Appellate Order based on which the conclusion arrived that the alleged purchase is bogus purchase, e,g. para 5.1 of the C1T(A( appellate order which is read as under "During the year under consideration, on the basis of information /material supplied by DGIT (Inv), Mumbai and enquiries carried out in this regard, the AO summarized the purchases shown by the appellant in respect of the aforementioned parties amounting to Rs. 8,38,400/- as being non genuine." Similarly, fact is recorded in para 5,2, 5.3, 5.4, 5.5 elaborately. No findings as recorded by Hon'ble CIT(A] in his appellate order, recorded or mentioned by the learned assessing officer in the entire original assessment order. Thereby appellate order of Hon'ble C1T(A) is contradicting findings and recording.

While framing the judgement, the Hon’ble CIT(A) has recorded exactly same finding as mentioned in para 6 hereinabove on the same question of alleged bogus purchase in case of assessee for A.Y.2011-2012 in same para 5, 5,1, 5.2, 5.3, 5.4, 5,5 even though the name of alleged Hawala / bogus dealer in A.Y,2010^2011 is different from the alleged Hawala / Bogus dealer in A.Y,2011 2012. (Copy of the Appellate Order of Hon ‘ble CIT (A) 2010-2011 is enclosed herewith for your ready reference as Annexure B and A. Y.2011-2012 as Annexure C)

The Hon’ble CIT(A) failed to establish a link on the record as how on the basis of material/ information supplied by DGIT (Inv) Mumbai AO summarized the purchases shown by the appellant in respect of the aforementioned parties amounting to Rs, 8,38,400/- as being non genuine for A.Y.2010-2011 and A,Y.2011-2012 are same despite of the fact that both the original assessment completed on different dates and year and alleged Hawala / Bogus dealers are also different.” CO No. 202 & 203/MUM/2019 Assessment Years: 2010-11 and 2011-12

Vide CO No. 203/Mum/2019, the assessee has challenged the action of the Ld. CIT (A) in sustaining addition of 12.5% of the total amount of bogus purchases and confirmation of disallowances made on ad hoc basis by the AO from conveyance and miscellaneous expenses, travelling expenses, Motor car expenses, depreciation on motor car claimed by the assessee and further addition made on account of notional interest. Gruond No. 1-4 and 6 to 8 pertain to addition on account of bogus purchases and ground No 5 pertains to disallowances made on the other expenses claimed by the assessee.

So far as the addition of 12.5% of the bogus purchases by the Ld. CIT (A) is concerned, the Ld. counsel submitted that the authorities below have relied upon the affidavit/statements made by the hawala dealer against the assessee. Since the assessee was not afforded an opportunity to cross examine the hawala dealer and the order was passed by relying upon their statement and the affidavits submitted by them, the assessment proceedings are bad in law, therefore liable to be quashed. The Ld. counsel further submitted that in view of the aforesaid facts, the Ld. CIT(A) has wrongly sustained the addition of 12.5% of the total amount of questioned purchases.

On the other hand, the Ld. Departmental Representative (DR) submitted that since the assessee failed to establish the genuineness of the transaction despite availing sufficient opportunity the AO had made the addition of the entire amount of bogus purchases, therefore no prejudice has been caused to the assessee. Moreover, since the concerned party was not found at the addresses made available by the assessee, it was not possible for the authorities below to afford an opportunity to cross examine the concerned hawala party.

We have heard the rival submissions and also perused the material on record. As pointed out by the Ld.CIT (A), during the assessment proceedings, the AO issued notice u/s 133 (6) of the Act to the concerned party. However, the postal department returned the un-served notice back with the remarks “not known”. Accordingly, the AO asked the assessee to produce the party along with the books of accounts to verify the claim. But, the assessee failed to CO No. 202 & 203/MUM/2019 Assessment Years: 2010-11 and 2011-12 produce the parties and their books of accounts. We further notice that the authorities below have not solely based their findings on the statement/affidavits filed by the party concerned. In our considered view, the other circumstantial evidences on record are sufficient to hold that the purchases in question are not genuine. Rather, the evidence on record suggest that the assessee has not made the purchases in question from the party mentioned in its books of account. Therefore, the Ld. CIT (A) has sustained the addition of 12.5% of the total amount of bogus purchases. Since, we have upheld the findings of the Ld.CIT (A) in department’s appeal, this ground of cross objection filed by the assessee has become infrcutuous. Hence, we dismiss this ground of the present cross objection.

As regards, the disallowances of 1/5th of the total amount of Rs. 45,250/- claimed on account of miscellaneous expenses and conveyance expenses, 1/5th disallowance of travelling expenses amounting to Rs. 1,60,318/- claimed by the assessee, addition of Rs. 20,827/- on account of notional interest @ 12% of Rs. 1,73,560/- interest free loan given by the assessee and disallowance of 50% amount of the total amount of motor car expenses, the Ld. counsel for the assessee submitted that the action of the AO is contrary to the settled principles of law as the AO can make ad hoc disallowance only in case of best judgment assessment u/s 144 of the Act and not under the regular assessment u/s 143 (3) or 147 of the Act.

On the other hand, the Ld. DR relying on the concurrent findings of the authorities below submitted that since the assessee has failed to establish the genuineness of the claims made, the Ld. CIT (A) has sustained a reasonable percentage of disallowance on the claims made by the assessee.

We have perused the material on record in the light of the rival submissions of the parties. The AO made disallowance of 1/5th. i.e., 20% of the total amount of Rs. 2,26,251/- claimed under the head miscellaneous expenses and conveyance expenses on the ground that the assessee has failed to produce any evidence except self generated cash vouchers. In the first appeal, the Ld. CIT(A) affirmed the findings of the AO that the assessee has CO No. 202 & 203/MUM/2019 Assessment Years: 2010-11 and 2011-12 failed to substantiate its claim by adducing cogent evidence, however, restricted the disallowance to 10% on the ground that 20% disallowance is on higher side. Similarly, AO made disallowance of 20% of the total amount of Rs. 1,60,318/-claimed as travelling expenses holding that personal expenses in the said claim cannot be ruled out. In the first appeal, the Ld. CIT(A) restricted the disallowance to 10% holding that 20% disallowance is on higher side. The AO made interest disallowance of 12% of the total amount of interest claimed on the ground that the assessee has given interest free loan to the extent of Rs. 1,73,560/-. In the first appeal the Ld. CIT(A) restricted the addition to 10% again holding that the disallowance of 12% made by the AO is on higher side. Similarly, the AO made disallowance @ 15% of Motor Car expenses and depreciation on the ground that since the assessee has not maintained any log book to prove that the cars were exclusively used for the purposes of business, however, in the first appeal the Ld. CIT(A) restricted the addition to 10% holding that the ad hoc disallowance made by the AO is on higher side. The main contention of the assessee is that since the AO had made the disallowances in question on ad hoc basis, which can be done only in case of best judgment assessment u/s 144 of the Act and not under section 143(3) or 147 of the Act, the Ld. CIT(A) ought to have deleted the disallowances made by the AO.

We further notice that the AO has made the disallowances in question on the ground that the assessee has failed to adduce cogent and convincing evidence to substantiate its claim. The Ld. CIT(A) has affirmed the aforesaid findings however, restricted the additions to 10% on each claim of the assessee holding that the ad hoc disallowances are on the higher side. Hence, we do not find any reason to interfere with the action of the Ld. CIT(A) as we are of the considered view that the authorities below have rightly held that the assessee has failed to substantiate its claim by producing cogent and convincing evidence. We therefore, uphold the findings of the Ld CIT(A) and confirm the disallowances sustained by the Ld. CIT(A) and dismiss ground No 5 of the Cross Objection filed by the assessee. CO No. 202 & 203/MUM/2019 Assessment Years: 2010-11 and 2011-12 The revenue has challenged the impugned order passed by the Ld. CIT (A) on the following effective grounds:- 1. “On the facts and in the circumstances of the case and in law, the ld. CIT (A) has erred in granting relief of Rs. 1,08,281/- by restricting the addition to 12.5% of alleged bogus purchases.

On the facts and in the circumstances of the case ad in law, the ld. CIT (A) failed to appreciate the fact that onus is on the assessee to explain and substantiate the genuineness and true nature purchases transaction.

On the facts and in the circumstances of the case and in law, the ld. CIT (A) failed to consider the applicability of section 40A (3) of the Income Tax Act, 1961, when he has stated in para 5.12 of the order that the purchases have been made from the parties other than those mentioned in the books of accounts.

The appellant pray that appeal is being filed because it is covered under the exception provided in para 10(e) of the amended instruction no. 3 dated 20.08.2018. 2. The issues raised by the revenue in the present appeal are identical to the issues raised by the revenue in assessee’s case for the AY 2010-11. Since, we have dismissed the revenue appeals pertaining to the AY 2010-11 and since there is no change in the facts of the present case except the hawala party from whom the assessee had obtained bogus bills and the amount of bogus purchases, consistent with our findings in the assessee’s case for the AY 2010- 11 aforesaid, we dismiss the present appeal of the revenue for the same reasons. Accordingly, we direct the AO to make addition of 12.5% of the total amount of bogus purchases determined during the assessment proceedings. CO No. 202/MUM/2019 (Assessment Year: 2011-2012) The assessee has filed the cross objection against the impugned order on the following effective ground:

The learned assessing officer as well as Hon'ble CIT(A) erred in using the affidavit /statement issued or submitted by the alleged hawala dealer to the sales tax authorities against the assessee without giving opportunities to cross verify or examines the said affidavit /statement by the assessee.

The learned assessing officer erred while passing the impugned assessment order, objectively fails to prove that the alleged hawala parties actually issued only invoices to the assessee without supply of material.

The learned assessing officer as well as Hon'ble CIT (A) failed to bring on record or corroborate any findings whether the sale made against such purchase is genuine or not.

The fact is recorded by the learned assessing officer that the percentage of gross profit as well as net profit as compare to the immediately previous year is marginally differs. Hence, learned Assessing Officer logically fails to prove the purpose of obtaining alleged bogus purchase bills. Even the assessing officer fail to corroborate the fact CO No. 202 & 203/MUM/2019 Assessment Years: 2010-11 and 2011-12 whether there is abnormal cash deposit or withdrawal from the bank account taken place around the alleged bogus purchase transaction date or not which may indicate that such bogus transaction taken place.

The learned assessing officer didn't rejected the audited books of accounts while disallowing the Purchases as well as Conveyance and miscellaneous Expenses, Travelling Expenses, Notional Interest, Motor Car Expenses, Depreciation on motor car expenses on ad-hoc basis which can be done only in case of best judgement assessment under section 144 and not under regular assessment under section 143(3) or 147. Hon’ble CIT (A) also failed to record any findings on the same.

The Hon’ble CIT (A) erred in not considering the fact which brought to his notice that the learned assessee has not recorded any findings or any comments about wrong disallowance of depreciation on motor car, while computing the revised computation of income in para 6 of the impugned assessment order 1/5th of total Depreciation on motor car amounting to Rs. 16,330/- added which is grossly wrong and mistake apparent from the record. The addition should be deleted.

The Hon’ble CIT(A) erred in framing Judgement by recording reference about the records and information available and procedures followed by learned Assessing Officer in para 5, 5.1, 5.2, 5,3, 5.4, 5,5 of the Appellate Order based on which the conclusion arrived that the alleged purchase is bogus purchase, e,g. para 5.1 of the C1T(A( appellate order which is read as under "During the year under consideration, on the basis of information /material supplied by DGIT (Inv), Mumbai and enquiries carried out in this regard, the AO summarized the purchases shown by the appellant in respect of the aforementioned parties amounting to Rs. 8,38,400/- as being non genuine." Similarly, fact is recorded in para 5,2, 5.3, 5.4, 5.5 elaborately. No findings as recorded by Hon'ble CIT(A] in his appellate order, recorded or mentioned by the learned assessing officer in the entire original assessment order. Thereby appellate order of Hon'ble C1T(A) is contradicting findings and recording. CO No. 202 & 203/MUM/2019 Assessment Years: 2010-11 and 2011-12

The assessee has filed the cross objection raising the issues identical to the issues raised in its case pertaining to the assessment year 2010-11 except the additional issue with regard to one legal issue vide which the assessee has challenged the assessment order on the ground that the AO has failed to bring on record any finding regarding reopening of the assessment. Since we have dismissed the assessee’s cross objection raising identical issues, except the issue regarding reopening, in assessee’s own case for the assessment year 2010-11 and since there is no change in the facts of the present case, consistent with our findings in assessee’s case for the assessment year 2010- 11, we uphold the findings of the Ld. CIT(A) in the present case and dismiss all the issues raised by the assessee except the issue pertaining to reopening of the assessment u/s 147 of the Act.

So far as the issue regarding reopening of the assessment is concerned, the AO has inadvertently mentioned that notice u/s 147 was issued. In fact the CO No. 202 & 203/MUM/2019 Assessment Years: 2010-11 and 2011-12 assessment in this case has been completed u/s 143(3) of the Act. Moreover, this ground is not arising out of the impugned order. Hence, this ground of cross objection is dismissed as not maintainable. In the result, appeals filed by the revenue as well as the Cross Objections filed by the assessee, are dismissed. Order pronounced in the open court on 11th October, 2019. (G. MANJUNATHA) JUDICIAL MEMBER म ुंबई Mumbai; दिन ुंक Dated: 11/10/2019 Alindra, PS आदेश प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपील र्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आय क्त(अपील) / The CIT(A)- आयकर आय क्त / CIT 4. दिभ गीय प्रदिदनदि, आयकर अपीलीय अदिकरण, म ुंबई / DR,

ITAT, Mumbai ग र्ड फ ईल / Guard file. 6. आदेशानुसार/ BY ORDER, सत्य दपि प्रदि //// उि/सहायक िंजीकार (Dy./Asstt.