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Income Tax Appellate Tribunal, MUMBAI BENCHES “D”, MUMBAI
Before: SHRI M. BALAGANESH (AM) & SHRI RAM LAL NEGI (JM)
O R D E R PER RAM LAL NEGI, JM These are the appeals by the assessee and the revenue against the orders dated 29.08.2016 for the assessment year 2009-10 and 2011-12 and order dated 19.03-2015 for the assessment year 2010-11 passed by the Ld. Commissioner of Income Tax (Appeals)-2, Thane (for short ‘the CIT (A)’), whereby the Ld. CIT (A) has dismissed the appeal filed by the assessee against the assessment orders passed u/s 143 (3) r.w.s 147 of the Income Tax Act, 1961 (for short the ‘Act’) pertaining to the assessment year2009-10 and partly allowed the appeal pertaining to the assessment year 2011-12 and partly allowed the appeal filed by the assessee against the assessment order passed u/s 143(3) of the Act. Since these appeal pertain to the same assessee, these were clubbed, heard together and are being disposed of by this common order for the sake of convenience. Assessment Years: 2009-10, 2010-11 & 2011-12 The assessee a partnership firm, engaged in the business of fabrication, manufacturer and repair of cranes and general engineering works, filed its return of income for the assessment year under consideration on 30.09.2009 declaring the total income of Rs. 4,06,80,390/-. The return was processed u/s 143 (1) of the Act. Subsequently, this case was re-opened u/s 147 of the Act after issuing notice dated 24.03.2015 u/s 148 of the Act. Accordingly, the AO issued notice u/s 143 (2) and 142 (1) of the Act and in response thereof the authorized representative of the assessee appeared before the AO and produced the relevant records/documents as asked by the AO. It was noticed that the assessee had made purchases from the parties, whose name were in the list of suspicious dealers published by the Sales Tax Department, Maharashtra. As per the information, the assessee had obtained bogus purchase bills amounting to Rs. 1,32,03,198/- from seven entities mentioned in the assessment order. Accordingly, the assessee was asked to explain as to why the purchases shown to have been made from the said parties should not be treated as bogus transaction. The assessee furnished a detailed written submission contending that all the purchases are genuine and the material purchased was utilized for the purpose of business. The AO rejecting the contention of the assessee treated the purchases in question as bogus transaction and made addition of the said amount to the income of the assessee and determined the total income at Rs. 5,38,83,590/-. In the first appeal, the Ld. CIT (A) confirmed the addition made by the AO.
2. The assessee has challenged the impugned order passed by the Ld. CIT
(A) by raising the following effective grounds:-
1. “The Hon’ble Commissioner of Income Tax (Appeals) -2 Thane (“Hon’ble CIT-A”) erred on facts and in the circumstances of the case and in law Assessment Years: 2009-10, 2010-11 & 2011-12 in confirming the action of Assessing Officer in reopening the assessment under section 147/148 of Income Tax Act, 1961.
2. The Hon’ble CIT-A erred on facts and circumstances and in law in rejecting the books of accounts and also in sustaining the disallowance made by the Assessing Officer on account of alleged bogus purchases amounting to Rs. 1,32,03,198/-. 3. The appellant prays that the disallowance on account of alleged bogus purchases confirmed by the Hon’ble CIT-A to the extent of Rs. 1,32,03,198/- be deleted.”
The assessee raised the following additional grounds of appeal vide application dated 28.08.2019:-
1. The learned CIT (A) has erred in law and on facts in not holding that the order passed by the Assessing Officer u/s 143 (3) r.w.s 147 of the Act is bad in law.
2. The learned CIT (A) ought to have held that the order passed by the Assessing Officer u/s 143 (3) r.w.s. 147 of the Act is bad in law since the reasons for reopening were not supplied to the assessee.”
The Ld. counsel for the assessee submitted before us that the assessee has already challenged the action of the Assessing Officer in reopening the assessment u/s 147 of the Act, which covers the assessee’s argument against the reopening of the assessment. However, the assessee has filed the present application for allowing the additional ground of appeal challenging the assessment order passes u/s 143 (3) r.w.s. 147 of the Act by the AO on the ground that since the reasons for reopening were not supplied to the assessee, the order passed by the AO is bad in law and the Ld.CIT (A) ought to have dismissed the same. The Ld. counsel relied on the judgments of the Hon’ble Supreme Court in the case of National Thermal Power Corporation vs. CIT 229 ITR 383 (SC), Jute Corporation of India vs. CIT 187 ITR 688 (SC) and the Hon’ble High Court of Bombay in Ahmadabad Electricity Company Ltd. vs. CIT 199 ITR 351 (Bom) to substantiate the contention that the assessee can raise the legal Assessment Years: 2009-10, 2010-11 & 2011-12 ground at any stage. After hearing the Ld. Departmental Representative (DR), we admitted the additional ground raised
by the assessee as the same are purely legal and no new facts are required to be brought on record.
5. The Ld. counsel submitted that since the AO had not supplied the reasons recorded for reopening of the assessment u/s 147 of the Act, the reassessment proceedings is bad in law and is liable to be quashed in the light of the judgment of the Hon’ble Bombay High Court in the case of CIT vs. Videsh Sanchar Nigam Ltd. 340 ITR 66 and the judgment of the Hon’ble Bombay High Court in the case of CIT vs. IDBI Ltd. 2016 (76 taxman.com 227). The Ld. counsel invited our attention to the reply dated 16.04.2015 filed by the assessee to the notice issue by the AO u/s 148 of the Act, in which the assessee has specifically requested the AO to supply the copy of reasons recorded for reopening of the assessment.
6. On the other hand, the Ld. DR submitted that it is not clear from the record whether the reasons recorded were made available to the assessee. However, the Ld. DR submitted that even if the same was not supplied to the assessee it will only amount to a procedural lapse and the entire proceedings cannot be held void ab initio on the basis of the said lapse.
7. We have perused the material on record and also gone through the cases relied upon by the Ld. counsel for the assessee. In the present case as contended by the Ld. counsel, the AO has not mentioned in its order that the reasons for reopening of the assessment was supplied to the assessee. Since, the assessee has raised the legal issue, the revenue was given opportunity to rebut the contention of the assessee, however, the revenue failed to establish that the reasons recorded was supplied to the assessee. As pointed out by the Ld. counsel, the Hon’ble Bombay High Court in the case of CIT vs. Videsh Sanchar Nigam Ltd. (supra) has dismissed the revenue’s appeal holding that since the reasons recorded for reopening of the assessee were not furnished to the assessee till completion of assessment, the reassessment order could not be upheld. The findings of the Hon’ble High Court reads as under:- Assessment Years: 2009-10, 2010-11 & 2011-12
2. The finding of fact recorded by the Income tax Appellate Tribunal is that in the present case the reasons recorded for reopening of the assessment though repeatedly asked by the assessee were furnished only after completion of the assessment. The Tribunal following the judgment of this court in the case of CIT v. Fomento Resorts and Hotels Ltd., Income Tax Appeal No. 71 of 2006 decided on November 27, 2006, has held that though the reopening of the assessment is within three years from the end of the relevant assessment year, since the reasons recorded for reopening of the assessment were not furnished to the assessee till the completion of assessment, the reassessment order cannot be upheld. Moreover, special leave petition filed by the Revenue against the decision of this court in the case of CIT v. Fomento Resorts and Hotels Ltd. has been dismissed by the apex court, vide order dated July 16, 2007. In this view of the matter, the present appeal is also dismissed with no order as to costs.
Similarly, in the case of CIT vs. IDBI Ltd. (supra), the Hon’ble Bombay High Court has dismissed the revenue’s appeal holding that the question framed does not give rise to any substantial question of law. In the said case, whether in the absence of supply of reasons recorded for issue of reopening notice would be without jurisdiction, the Hon’ble High Court decided the said question in affirmative holding as under:-
(v) We find that the question as framed proceeds on the basis that the Respondent Assessee was aware of the reasons for re- assessment. The only basis for the aforesaid submission is the submission made by the Revenue before the Tribunal that the Respondent Assessee is a public sector institution who was aware that search action has been initiated on certain lessees in respect of transaction with IDBI i.e. Respondent Assessee. On the basis of the above, it is to be inferred that the reason for re-assessment was known to the Respondent Assessee. The supply of reason in support of the notice for reopening of an assessment is a jurisdictional requirement. The reasons Assessment Years: 2009-10, 2010-11 & 2011-12 recorded form the basis to examine whether the Assessing Officer had at all applied his mind to the facts and had reasons to believe that taxable income has escaped reassessment. It is these reasons, which have to be made available to the Assessee and it could give rise to a challenge to the reopening notice. It is undisputed that the reasons recorded for issuing reopening notice were never communicated to the Respondent Assessee in spite of its repeated requests. Thus, the grievance of the Revenue on the above count is unsustainable.
The Hon’ble Supreme Court in the case of PCIT vs. V. Rammaiah (supra) has dismissed the SLP filed by the revenue against the findings of the Hon’ble High Court. In the said case, the Tribunal quashed re-assessment order on the ground that the reasons recorded by the AO for re-opening were never communicated to the assessee though the same were produced before the Tribunal for perusal. The Hon’ble High Court uphold the findings of the Tribunal holding that non-communication of reasons recorded for reassessment to the assessee did not amount to a mere procedural lapse. The revenue challenged the order of the Hon’ble High Court, which was dismissed by the Hon’ble Supreme Court.
As pointed out by the Ld. counsel, the assessee filed written reply dated 16.04.2015 to the notice issued by the AO u/s 148 of the Act. In the said reply, the assessee requested the AO to provide the reasons recorded for reopening of the assessment. The copy of the same is available at page 2 of the paper book filed by the assessee. The AO has mentioned in its order that this case was reopened after issuing notice u/s 148 of the Act after recording the reason that “the assessee has made bogus purchases in order to inflate expenses.” It is no where mentioned that the reason recorded for reopening was supplied to the assessee. The Ld CIT(A) has also mentioned in the appellate order that AO initiated reassessment proceedings after recording necessary reasons/satisfaction and issuing notice u/s 148 of the Act. However, the revenue failed to controvert the contention of the assessee that the reasons Assessment Years: 2009-10, 2010-11 & 2011-12 recorded was not supplied to the assessee. These facts substantiate the contention of the assessee that the reasons recorded for reopening was not supplied to the assessee. Hence, in light of the judgments of the Hon’ble Supreme Court and the High Court discussed in the foregoing paras, we hold that the re-assessment proceedings initiated by the AO without supplying the copy of reasons recorded is bad in law. Hence, we allow the legal ground raised
by the assessee and quash the reassessment proceedings pertaining to the assessment year 2009-10.
11. Since, we have allowed the legal ground raised by the assessee and quashed the reassessment proceedings, we do not consider it necessary to decide the other grounds raised on merits. (Assessment Year: 2010-2011)
The assessee and the revenue have filed cross appeals against the order dated 19.03.2015 passed by the Ld. CIT(A) pertaining to the assessment year 2010-11. In this case the assessee filed its return of income for the assessment year under consideration declaring the total income of Rs. 2,03,27,012/-. The case was selected for scrutiny and accordingly AO issued notice u/s 143 (2) and 142 (1) to the assessee. In response to the said notices, the authorized representative of the assessee attended the proceedings from time to time produced the books of account, bills, vouchers, and other details called for and discussed the case. During the course of assessment, it was noticed that the assessee had shown sundry creditors. Hence, the AO asked the assessee to explain the purchases made from Zenith Enterprises, R.S. Industries, Arihant Traders, Vaishali Enterprises, Bright Corporation, Surat Tube Corporation, Shri Jalaram Enterprises and Mahavir Enterprisers amounting to Rs. 2,54,95,855/-. The AR contended that the assessee Assessment Years: 2009-10, 2010-11 & 2011-12 has already submitted material issue slips, stock registers and further produced the bound books of goods, inward notes and material issue slips and stock registers for verification. As regards octroi receipts, the AR submitted that the factory of the assessee is located at village- Patansai, Taluka-Roha, distt- Raigad, where no octroi duty is applicable. As regards transport vouchers, the AO submitted that since the transportation was done by the above parties, the same would be available with them. As regards, quality certificate the AR stated that material purchased from the assessee parties are manufacture by the reputed parties as such quality certificate is normally not required. The AO rejecting the contentions of the assessee made addition of the total amount of the bogus purchases. In the first appeal, the Ld. CIT(A) restricted the addition to 25% of the total amount of bogus purchases. Against the said findings of the Ld. CIT(A) the assessee and the revenue have filed cross appeals.
2. The assessee has challenged the impugned order passed by the Ld. CIT (A) by raising the following grounds:-
1. “The Hon’ble Commissioner of Income Tax (Appeals) -2 Thane (“Hon’ble CIT-A” ) erred on facts and in the circumstances of the case and in law in disallowing purchases as inflated purchases merely on assumptions and surmises to the extent of Rs. 61,28,750/- i.e. 25% of total alleged bogus purchases of Rs. 2,45,15,000/-
2. The appellant prays that the said disallowance of purchases be deleted.
3. On the other hand the revenue has challenged the impugned order passed by the Ld. CIT (A) by raising the following grounds:- Assessment Years: 2009-10, 2010-11 & 2011-12
1. “On the facts and in the circumstances of the case, the Ld. CIT
(A) has erred in disallowing only 25% of the total bogus purchases of Rs. 2,45,15,000/- on account of unsubstantiated purchases. 2. On the facts and in the circumstances of the case, the Ld. CIT (A) has erred in giving relief of 75% of the total bogus purchases even though- (i) The assesse could not produce satisfactory evidence to prove the genuineness of the purchases before the AO and before CIT (A). (ii) The affidavits filed by the entry providers before Sales Tax Authorities cannot be ignored having evidentiary value. (iii) Where the other purchases are made directly by the assesse, the fact that only these purchases were made through brokers clearly shows an element of inflation purchases from unaccounted income. (iv) Goods are received from parties other than the persons who have issued such bill and payment by cheques have been made to some other parties, the possibilities of inflated purchases cannot be ruled out. (v) Comparative study of GP & NP shows that the books result of the assesse are not reliable.”
4. So far as the appeal of the assessee is concerned, the only grievance of the assessee is that the Ld. CIT(A) has wrongly sustained the addition @ 25% of the total amount of bogus purchases determined by the AO. The Ld. counsel further contended that since the findings of the AO are based on surmises and conjectures, the Ld. CIT(A) ought to have deleted the entire addition made by the AO as the assessee has discharged the primary onus of proving the genuineness of transaction by furnishing identity of the parties and other details like copies statements of bank statement, goods inward Notes, material issued slips and stock register. As regards octroi receipts the Ld. counsel submitted that the factory of the assessee is located at Patansai, where octrio was not applicable, the assessee was not in a position to produce the same before the AO. The Ld. counsel for the assessee accordingly submitted that the Assessment Years: 2009-10, 2010-11 & 2011-12 Ld. CIT (A) has wrongly sustained the addition of 25% of the total amount of bogus purchases determined by the AO. The Ld. counsel for the assessee further pointed out that the assessee has already shown the GP rate of 34.14% during the assessment year and further addition of 25% is not justified. The Ld. counsel relied on the decision of the “A” Bench of the Mumbai Tribunal in the case of ITO vs. Actube Enterprises, in which the Tribunal has upheld the order of the Ld.CIT (A) restricting the addition to 12.5% of the total amount of bogus purchases.
On the other hand, the Ld. Departmental Representative (DR) relying on the assessment order passed by AO submitted that the assessee has shown purchases from the parties whose name are there in the list of hawala parties prepared by the Maharashtra Sales Tax Department, after conducting thorough enquiry. Since the assessee had failed to produce the parties for verification before the authorities below during survey u/s 133A of the Act carried out by the investigation wing, the assessee was given opportunity to produce the party to substantiate its claim during assessment proceeding. Moreover, the fact that the payment were made through banking channels itself is not sufficient to prove the genuineness of the transaction. Hence, the AO had rightly made addition of the entire amount of bogus purchases to the income of the assessee. Therefore, the Ld.CIT (A) ought to have confirmed the addition made by the AO. In the light of the aforesaid facts, the Ld DR submitted that the impugned order passed by the Ld. CIT(A) may be set aside and the order of the AO may be restored.
We have heard the rival submissions of the parties and also perused the material on record in the light of the contentions of the parties. The grievance of the revenue is that the Ld. CIT (A) has wrongly restricted the addition to 25% of the total amount of bogus purchases, whereas the grievance of the assessee is that the Ld.CIT (A) has wrongly sustained 25% of the total amount of bogus purchase. We notice that the Ld. CIT (A) has upheld the findings of the AO that the assessee has failed to prove the genuineness of the transaction, however, Assessment Years: 2009-10, 2010-11 & 2011-12 restricted the addition to 25% keeping in view the various judicial decisions confirming the addition in the case of bogus purchases at the rate of 12% to 30% depending on the facts of the case. We also agree with the Ld. CIT(A) that the evidence on record is not sufficient to rebut the contention that the questioned purchases are bogus. So far as the addition is concerned, the AO has not rejected the sales shown by the assessee. Since, there cannot be any sale without purchases, it can be inferred that the assessee had purchased the materials in question from the parties other than the parties mentioned in its books of account. Accordingly, it can be concluded that the assessee purchased the materials in question from grey market and evaded the taxes including VAT. Under these circumstances addition can be made keeping in view the rate of tax applicable during the relevant period and the profit earned by the assessee. The Hon’ble Gujrat High Court in CIT vs. Simit P. Seth 356 ITR 451(Guj) has upheld the decision of the Tribunal and sustained the addition 12.5% of the total amount of bogus purchases holding that only profit element embedded in such purchases can be added to income of the assessee. Further in the case of ITO vs. Actube (supra), the coordinate Bench has upheld the order passed by the Ld. CIT (A) restricting the addition to 12.5% in the case of bogus purchases. The operative part of the said order reads as under:-
7.2 In our considered view keeping in view factual matrix of the case, there is no infirmity in the appellate order passed by Ld. CIT (A) estimating profits @ 12.5% of the alleged bogus purchases being profits embedded in these purchases, as additional income to be brought to tax in the hands of the assessee, as some guess work is required in estimating profits embedded in these alleged bogus purchases but the said guess work has to be reasonable, fair and honest guess work. We find that there is not perversity in estimation made by learned CIT (A) nor it is unconscionable estimation and we are not inclined to interfere with appellate order passed by learned CIT (A),, more so the assessee has duly reconciled quantitative stocks reflected by these alleged purchases with sales made. Assessment Years: 2009-10, 2010-11 & 2011-12 The sales are not doubted by Revenue. The ratio of decision of Hon’ble Supreme Court in the case of Kachwala Gems v. JCIT (supra) supports our decision. Revenue ails in its appeal. We order accordingly.
In the light of the facts and circumstances of the case and the evidence on record we are of the considered view that the addition of 25% sustained by the Ld. CIT (A) is on higher side. We are therefore, respectfully following the ratio laid down by the Hon’ble Gujarat High Court in the case of Simit P Sheth (supra) followed in various benches of the ITAT including the coordinate Bench in the case of ITO vs. Actube (supra), modify the order of the Ld. CIT (A) and restrict the addition to 12.5% of the total amount of bogus purchases and further direct the AO to compute the addition @ 12.5% of the total amount of bogus purchases determined by the AO. (Assessment Year: 2011-2012)
The facts of the present case are similar to the facts of the assessee’s case for the AY 2009-10 and 2010-11 aforesaid. The assessee and the revenue have filed cross appeals against the impugned order passed by the Ld. CIT (A) pertaining to the assessment year 2011-12. The assessee has challenged the impugned order by raising the following effective grounds:-
1. “The Hon’ble Commissioner of Income Tax (Appeals) -2 Thane (“Hon’ble CIT-A”) erred on facts and in the circumstances of the case and in law in confirming the action of Assessing Officer in reopening the assessment under section 147/148 of Income Tax Act, 1961.
2. The Hon’ble CIT-A erred on facts and circumstances and in law in rejecting the books of accounts and also in sustaining the disallowance made by the Assessing Officer on account of alleged bogus purchases amounting to Rs. 2,07,99,200 i.e. Assessment Years: 2009-10, 2010-11 & 2011-12 25% of total alleged bogus purchases amounting to Rs. 8,31,96,803/-. 3. The appellant prays that the disallowance on account of alleged bogus purchases confirmed by the Hon’ble CIT-A to the extent of Rs. 2,07,99,200/- be deleted.”
The assessee raised the following additional grounds of appeal vide application dated 28.08.2019:--
3. The learned CIT (A) has erred in law and on facts in not holding that the order passed by the Assessing Officer u/s 143 (3) r.w.s 147 of the Act is bad in law.
4. The learned CIT (A) ought to have held that the order passed by the Assessing Officer u/s 143 (3) r.w.s. 147 of the Act is bad in law since the reasons for reopening were not supplied to the assessee.”
3. On the other hand, the revenue has challenged the impugned order passed by the Ld. CIT (A) by raising the following effective grounds:-
“On the facts & in the circumstances of the case & the Ld. CIT
(A) has erred in relying on the decision of Supreme court in the case of Kanchwala Gems Vs. JCIT 288 ITR 10 (SC) and Hon’ble High Court’s decision in the case of Vijay Protein, Sanjay Oil Cake Industries, etc.
2. On the facts& in the circumstances of the case & the Ld.CIT (A) has erred in following the order of ITAT, Pune in 1415 dated 20.02.2015 in the case of M/s Kolte Patil Developers Ltd. Wherein 100% addition of bogus purchases was confirmed.
3. On the facts & in the circumstances of the case, the Ld. CIT (A) has erred in giving relief to the assesse to the extent of suppressed G.P. out of total bogus purchases even though-
(i) The assesse could not produce primary evidences like Octroi Receipts, Delivery Challan etc. evidence to prove Assessment Years: 2009-10, 2010-11 & 2011-12 the genuineness of the purchases before the AO and before CIT (A). (ii) The affidavits filed by the entry providers before Sales Tax Authorities cannot be ignored having evidentiary value.”