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Income Tax Appellate Tribunal, MUMBAI BENCHES “SMC”, MUMBAI
Before: SHRI G. MANJUNATHA (AM) & SHRI RAM LAL NEGI (JM)
O R D E R PER RAM LAL NEGI, JM These appeals have been filed by the assessee against the two orders dated 27.07.2018 passed by the Commissioner of Income Tax (Appeals)-6 (for short ‘the CIT(A), Mumbai, for the assessment years 2010-11 and 2011-12, whereby the Ld. CIT(A) has dismissed the appeal filed by the assessee against the assessment order passed u/s 143 (3) r.w.s 147 of the Income Tax Act, 1961 (for short the ‘Act’). Since, both the appeals pertain to the same assessee, these were clubbed, heard together and are being disposed of by this common and consolidated order for the sake of convenience. The facts of both the cases and the issues involved in the both the appeals are identical except the amount of bogus purchases determined by the Assessment Years: 2010-11 and 2011-12 AO. Hence, we take the facts of the assessee’s case for the assessment year 2010-11 as lead case.
The assessee proprietor of Sunflex Metal (India), engaged in the business of trading in ferrous and non-ferrous metals, filed its return of income for the assessment year under consideration declaring the total income of Rs. 2,13,730/-. Subsequently, it came to the notice of the AO that the assessee had shown purchases amounting to Rs. 37,90,548/- from six bogus parties declared by the Sales Tax Department, Maharashtra who used to provide accommodation bills without supplying any goods. Accordingly, the AO issued notice u/s 148 of the Act. The assessee submitted that the original return submitted u/s 139(1) of the Act be treated as the return filed in response to the notice u/s 148 of the Act. Thereafter the AO issued notices u/s 143(2) and 142(1) of the Act. In response thereof, the authorized representative of the assessee appeared and filed the details. The assessee contended that the purchases were genuinely made from the aforesaid party, however the AO rejecting the contention of the assessee treated the questioned purchases as bogus transaction and made addition of 12.5% of the said amount to the income of the assessee and determined the total income of the assessee at Rs. 6,87,550/- The assessee challenged the assessment order before the Ld. CIT (A). The Ld. CIT (A) after hearing the assessee confirmed the addition of 12.5% of the total amount of bogus purchases. Against the said findings, the assessee is in appeal before the Tribunal.
The assessee has challenged the impugned order passed by the Ld. CIT (A) on the following effective grounds:- 1) (a) The learned Commissioner of Income Tax (Appeals)-6, Mumbai [“the ld. CIT (A)”] erred in facts and law in confirming the order passed by the ld. Assessing Officer u/s 143 (3) r.w.s 147 of the Act and not treating it as non-est and bad in law. (b) The ld. CIT (A) erred in facts and law in not appreciating that the order passed by the ld. Assessing Officer is against the principles of natural justice, suffers from infirmity, without jurisdiction and invalid. Assessment Years: 2010-11 and 2011-12 2) (a) The ld. CIT (A) erred in facts and in law in sustaining the addition of profit @ 12.5% estimated by Assessing Officer on the alleged purchases of Rs. 37,90,548/- without appreciating the material evidences and submissions placed on record. (b) The ld. CIT (A) grossly erred in facts and law in erroneously stating that the assessee has not reconciled the purchases with the items sold and failed to reconcile 1:1 of the items purchased and sold, without appreciating these details already placed on record. (c) The ld. CIT (A) erred in facts and law in not appreciating that the assessee ought to have been given the copy of the statements of the alleged suppliers relied upon and have been granted cross examination of these parties in light of natural justice. 3) Without prejudice to ground no. (1) and (2) above, the ld. CIT (A) ought to have reduced the gross profit percentage @ 7.87% already offered by the assessee from the addition of estimated profit @ 12.5% on the alleged purchases. 4) Your appellant prays that- (a) Order passed u/s 143 (3) r.w.s. 147 of the Act be treated as invalid and bad in law, (b) Addition of Rs. 4,73,819/- estimating profit @ 12.5% on alleged purchases be deleted. (c) Without prejudice to (a) & (b), the GP % already offered should be reduced from the estimated profit of Rs. 4,73,819/-. (d) Such other relief as may be deemed fit be granted. 5) The grounds of appeal raised above are without prejudice to one another.”
4. Before us, the Ld. counsel for the assessee submitted that since the assessee has discharged the primary onus of establishing genuineness of the purchases by submitting the documentary evidence, the Ld. CIT(A) ought to have deleted the addition of 12.5% of the 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. Assessment Years: 2010-11 and 2011-12 On the other hand, the Ld. departmental representative (DR) relying on the findings of the authorities below submitted that since the assessee has failed to prove the genuineness of the transaction of purchase by adducing cogent and convincing evidence, the Ld. CIT (A) has rightly confirmed the addition of 12.5% of the total amount of bogus purchases in the light of the ratio laid down by the Hon’ble Gujarat High in the case of Simit P. Sheth, 356 ITR 451(Guj).
5. 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 notices issued by the AO to the hawala parties were received back un-served. The assessee also failed to produce them 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 parties mentioned in the books of account. We further notice that, the AO has not rejected the sale of the goods so purchased. The above-mentioned facts give rise to the conclusion that the assessee had purchased the goods in question from grey market and evaded 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 element of profit embedded in the said transaction. The Ld. CIT(A) has sustained the addition of 12.5%, holding that the estimate reached at by the AO is just and reasonable. The operative part of the decision of the Ld. CIT (A) reads as under:- “7.3.5 In the present case, A.O. concluded that following the court pronouncements and material evidence on record, it would be fair and just to augment the income of the assessee by 12.5% of the purchases made by the assessee from impugned non- genuine and tainted parties to rope in element of diluted income. In the decision of Hon’ble Gujarat High Court in the case of CIT vs. Simit Sheth 256 ITR 451 (Guj) wherein also it is found that some of the alleged suppliers of steel to the Assessment Years: 2010-11 and 2011-12 assessee had not supplied any goods but had only provided sale bills and hence, purchases from the said parties were held to be bogus. The AO in that case added the entire amount of purchases to gross profit of the assessee. Ld. CIT (A) having found that the assessee had indeed purchased though not from named parties but other parties from grey market, partially sustained the addition as probable profit of the assessee. The Tribunal however, sustained the addition to the extent of 12.5%. Taking into account the above facts, the Hon’ble Gujarat High Court held that since the purchases were not bogus but were made from parties other than those mentioned in books of accounts, only the profit element embedded in such purchases could be added to the assessee’s income and concluded that no question of law arose in such estimation.
7.3.6 The facts of the present case are exactly similar to the above case. The appellant made purchased from sic parties who are said to be hawala operators, who are indulted in providing bogus bills without supply of any material. Under these circumstances, as the appellant could not prove his claim of purchases debited to the profit & loss account, there is no other way to the AO, but to estimate the profit element embedded on such purchases. As stated earlier, the facts of the present case are exactly similar to the cited case and respectfully following the above cited decision, the action of the AO in estimating the addition @ 12.5% on the total purchases from the six parties is confirmed. In respect of the assessee’s contention regarding giving set off for their actual gross profit of 7.95%, it is stated that the same would not have any bearing to the case, as assessee’s books cannot be considered to be reliable in view of the fact that some of the purchases are from bogus parties. When actual margin earned by the assessee is not ascertainable, then the only recourse left is a fair estimation of the income element earned in the purchase made by the assessee by resorting to dubious means as discussed in detail in this order in the foregoing paragraphs. The appellant on without prejudice has contended that the estimation of the profit embedded in the purchases should only be restricted to the net amount and VAT element which amounts to rs. 1,45,794/- out of such purchases should be excluded from the Assessment Years: 2010-11 and 2011-12 ambit of computation of disallowance. In this regard, it is stated that the assessee may follow either inclusive or exclusive method but that would not make the process of estimation of the additional profit embedded in such bogus purchases different. The total purchases would include the amount of VAT as well. In the case of CIT vs. Simit P. Sheth (supra), the Hon’ble High Court have estimated such profit embedded in bogus purchases at 12.5% including the element of VAT sought to be saved on account of such off-market purchases. Accordingly, the contention of the assessee to exclude the VAT element from the purchases while estimating the additional profit embedded in bogus purchases is not found to be acceptable. Ground Nos. 2, 3, 4 and 5 of the appeal are, therefore, dismissed.”
The Ld CIT(A) has sustained addition to 12.5%, by following the ratio laid down by the Hon’ble Gujarat High Court in the case of CIT vs. Simit P. Seth 356 ITR 451(Guj), in which the Hon’ble 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 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 said case. Hence, we do not find any infirmity in the order of the Ld. CIT (A) to interfere with. Accordingly, we uphold the order of the Ld. CIT (A) and dismiss the assessee’s appeal and direct the AO to make addition of 12.5% of the total amount of questioned purchases. The assessee has challenged the impugned order passed by the Ld. CIT
(A) on the following effective grounds:- 1) (a) “The learned Commissioner of Income Tax (Appeals)-6, Mumbai [“the ld. CIT (A)”] erred in facts and law in confirming the order passed by the ld. Assessing Officer u/s 143 (3) r.w.s 147 of the Act and not treating it as non-est and bad in law. Assessment Years: 2010-11 and 2011-12
(b) The ld. CIT (A) erred in facts and law in not appreciating that the order passed by the ld. Assessing Officer is against the principles of natural justice, suffers from infirmity, without jurisdiction and invalid. 2) (a) The ld. CIT (A) erred in facts and in law in sustaining the addition of profit @ 12.5% estimated by Assessing Officer on the alleged purchases of Rs. 49,54,064/- without appreciating the material evidences and submissions placed on record. (b) The ld. CIT (A) grossly erred in facts and law in erroneously stating that the assessee has not reconciled the purchases with the items sold and failed to reconcile 1:1 of the items purchased and sold, without appreciating these details already placed on record. (c) The ld. CIT (A) erred in facts and law in not appreciating that the assessee ought to have been given the copy of the statements of the alleged suppliers relied upon and have been granted cross examination of these parties in light of natural justice. 3) Without prejudice to ground no. (1) and (2) above, the ld. CIT (A) ought to have reduced the gross profit percentage @ 7.08% already offered by the assessee from the addition of estimated profit @ 12.5% on the alleged purchases. 4) Your appellant prays that- (a) Order passed u/s 143 (3) r.w.s. 147 of the Act be treated as invalid and bad in law, (b) Addition of Rs. 6,19,258/- estimating profit @ 12.5% on alleged purchases be deleted. (c) Without prejudice to (a) & (b), the GP % already offered should be reduced from the estimated profit of Rs6,19,258/-. (d) Such other relief as may be deemed fit be granted. 5) The grounds of appeal raised above are without prejudice to one another.”