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Income Tax Appellate Tribunal, “D” Bench, Mumbai
Before: Shri Ravish Sood & Shri N.K. Pradhan
O R D E R
PER RAVISH SOOD, JM
The present appeal filed by the assessee is directed against the order passed by the CIT(A)-30, Mumbai, dated 19.03.2018, which in turn arises from the assessment order passed by the A.O under Sec. 143(3) r.w.s 147 of the Income Tax Act, 1961 (for short „Act‟), dated 13.03.2015. The assessee has assailed the impugned order on the following grounds of appeal: “ 1 . T h a t o n f a c t s o f t h e c a s e a n d i n l a w t h e l d . C . I . T ( A p p e a l s ) h a s e r r e d i n upholding the validity of the P a g e | Ramesh Sawantmal Bhansali Vs. I.T.O-19(3)(1) reassessment proceeding initiated u/s. 147 by issue of notice u/s. 148 on wrong facts and in unlawful manner.
2. That the l d. C.I .T.(Appeals ) has erred in c onfirming the dis all owan ce of R s. 45,34,465/ - being 12.5% of the purchases of trading goods from the alleged suspicious hawala dealers of Rs. 3,62,75,720/- without properly appreciating the facts of the case and law. That both the appeal grounds are independent grounds & without prejudice to each other. That the appellant craves the leave to amend, alter, substitute and or to raise new or additional grounds of appeal at the time of hearing.”]
2. Briefly stated, the assessee who is engaged in the business of trading in ferrous and non-ferrous metals as a proprietor under the name and style of M/s VIP Ferromet had filed his return of income for A.Y. 2009-10 on 29.09.2009, declaring his total income at Rs.8,56,400/-. On the basis of information received from the DGIT (Inv.), Mumbai, that the assessee as a beneficiary had obtained accommodation entries from certain hawala dealers, his 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 22 parties:
Sr. No. Name of the hawala parties Amount 1. Mona Metals/Metalex Metal Corp. 9,55,682/- 2. Reliant Metal Corp. 26,31,044 3. Surat Tube Corp. 8,076 4. Shubham Metal Corp. 6,19,008 5. Champion Steel (India) 16,10,526 6. Chirag Steel Centre 71,92,040 7. Navdeep Trading Corp. 6,01,869 8. Vijay Industries 9,90,522 9. Hans Enterprises 43,25,777 10. Murphy Metals Pvt. ltd. 5,23,869 11. Ratnajyoti Metal & Tubes Pvt. Ltd. 1,35,200 12. Gurukul Steel 5,39,510 13. Reliable Metal (India) 5,67,497 14. Aniket Steel Pvt. Ltd. 5,92,436 15. Jinesh Metal Corp. 6,32,221 16. Raj Star Metal Industries 8,20,352 P a g e | Ramesh Sawantmal Bhansali Vs. I.T.O-19(3)(1) 17. Vigneshwar Impex 19,42,377 18. Tyson Steel and Tubes Pvt. ltd. 27,86,357 19. Madhura Metals Pvt. Ltd. 19,39,600 20. Kank Guru Tubes & Metals Pvt. Ltd. 38,20,408 21. Moksha Metals Pvt. Ltd. 8,73,990 22. Shree Keshar Impex Metals Pvt. Ltd. 21,67,720 Total 3,62,75,720 In order to verify the genuineness and veracity of the aforesaid purchase transactions the A.O directed the assessee to place on record supporting documentary evidence viz. sale bills, transportation documents, delivery challans/bills, lorry receipts/bills, copy of ledger accounts, date wise details of payments made to the supplier parties, copies of the bank statements, copy of stock register, copy of sales tax returns, VAT challans etc. Apart there from, the A.O in order to verify the authenticity of the purchase transactions issued notices under Sec.133(6) to the aforementioned parties at the addresses provided by the assessee. However, the said notices could not be served and were returned back unserved by the postal authorities with the remarks „not known‟ or „left‟ etc. The A.O brought the aforesaid factual position to the notice of the assessee and directed him to file adequate supporting evidence proving the genuineness of the aforesaid purchase transactions, and also produce the said parties along with their books of accounts. In reply, the assessee in his attempt to substantiate the genuineness of the purchase transactions filed certain documentary evidence viz. (i) copy of bills ; (ii) copy of the bank statements; (iii) copy of sales tax paid/VAT challans; and (iv) copy of the ledger accounts of the aforementioned parties. The A.O was not inspired as regards the authenticity of the purchase transactions under consideration and held a conviction that the assessee in the garb of bogus purchase transactions had tried to inflate his expenses and reduce the true profits. Also, it was observed by the A.O, that the assessee despite specific directions had failed to produce the parties P a g e | Ramesh Sawantmal Bhansali Vs. I.T.O-19(3)(1) for necessary verification. However, the A.O taking cognizance of the quantitative tally and evidence of payments made by the assessee towards purchase of goods under consideration, held a conviction, that the said purchases were made by the assessee from the open/grey market. Accordingly, in the backdrop of his aforesaid conviction, it was concluded by the A.O that the assessee after procuring the goods at a discounted value from the open/grey market had on the basis of inflated bogus bills obtained from the aforementioned accommodation entry providers had suppressed his true profits. Accordingly, the AO was of the view that the assessee by making such purchases from the open/grey market would had benefitted by procuring the goods at a discounted value as against that booked in his „books of accounts.‟ In the backdrop of his aforesaid observations the A.O quantified the profit element involved in the aforesaid purchase transactions @ 12.5% of the aggregate value of such purchases and made an addition of Rs.45,34,465/-.
Aggrieved, the assessee carried the matter in appeal before the CIT(A). The CIT(A) after deliberating on the contentions advanced by the assessee was however not persuaded to subscribe to the same and dismissed the appeal.
The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. The ld. Authorized Representative (for short „A.R‟) for the assessee, at the very outset of the hearing of the appeal submitted, that the quantification of the profit element by the lower authorities @ 12.5% of the aggregate value of the unproved purchases was substantially on the higher side. It was submitted by the ld. A.R, that the addition in the hands of the assessee as regards the aforesaid bogus/unproved purchases was to be made only to the extent of bringing the G.P rate of such purchases P a g e | Ramesh Sawantmal Bhansali Vs. I.T.O-19(3)(1) at the same rate as that of other genuine purchases. In support of his aforesaid contention the ld. A.R relied on the judgment of the Hon’ble High Court of Bombay in the case of Pr. Commissioner of Income Tax-17 Vs. M/s Mohhomad Haji & Adams Co. (ITA No. 1004/Mum/2016, dated 11.02.2019) (copy placed on record). Accordingly, it was submitted by the ld. A.R that the addition in the case of the present assessee may also be restricted to the extent of the G.P rate of the genuine purchases booked by the assessee in its „books of account‟ for the year under consideration.
Per contra, the ld. Departmental Representative (for short „D.R‟) relied on the orders of the lower authorities. It was submitted by the ld. D.R that as the assessee had failed to substantiate the genuineness and veracity of the purchase transactions under consideration, therefore, the lower authorities had rightly sustained the addition to the extent of 12.5% of the aggregate value of such purchases under consideration.
We have given a thoughtful consideration to the facts involved in the case before us, and find that the assessee had failed to substantiate the genuineness and veracity of the purchase transactions under consideration on the basis of irrefutable documentary evidence. Apart there from, we find that despite specific directions the assessee had also failed to produce the parties for necessary verification of the authenticity of the purchase transactions under consideration by the A.O. To sum up, in our considered view, the assessee had failed to discharge the „onus‟ that was cast upon him as regards proving the genuineness of the purchases which were claimed by him to have been made from the aforementioned 22 parties. Accordingly, we are of the considered view that the lower authorities had rightly concluded that the assessee had made the P a g e | Ramesh Sawantmal Bhansali Vs. I.T.O-19(3)(1) purchases at a discounted value from the open/grey market, and thereafter, had merely obtained inflated bills from the aforementioned in order to suppress its true profits.
We are however in agreement with the lower authorities that as the sales of the goods had duly been accounted by the assessee in his „books of accounts‟, therefore, the addition in his hands was liable to be restricted only to the extent of the profit which he would have generated by making of such purchases from the unorganised sector operating in the open/grey market. Be that as it may, we find that the view taken by the CIT(A) that the addition in the hands of the assessee was only liable to be restricted to the extent of the profit element involved in making of such purchases by the assessee had not been assailed any further by the revenue and had thus attained finality. Insofar the quantification of such profit element is concerned, we find that the Hon’ble High Court of Bombay in its recent judgement in the case of Pr. Commissioner of Income Tax-17 Vs. M/s Mohhomad Haji Adam & Company (ITA No. 1004 of 2016, dated 11.02.2019) while upholding the order of the Tribunal, had observed, that the addition in the hands of the assessee as regards the bogus/unproved purchases was to be made to the extent of bringing the G.P rate of such purchases at the same rate as that of the other genuine purchases. The Hon‟ble High Court while concluding as hereinabove, had observed as under: “8. In the present case, as noted above, the assessee was a t r a d e r o f f a b r i c s . T h e A O f o u n d t h r e e e n t i t i e s w h o w e r e indulging in bogus billing activities. A.O. found that the purchases made by the assessee from these entities were bogus. This being a finding of fact, we have proceeded on such basis. Despite this, the question arises whether the Revenue is correct in contending that the entire purchase amount should be added by way of assessee's additional income or the assessee is correct in contending that such logic cannot be applied. The finding of the CIT(A) and the Tribunal would suggest that the department had not disputed the assessee's sales. There was no discrepancy between the purchases shown by the assessee and the sale declared. That being the position, the Tribunal was correct in P a g e | Ramesh Sawantmal Bhansali Vs. I.T.O-19(3)(1) coming to the conclusion that the purchases cannot be rejected without disturbing the sales in case of a trade. The Tribunal, therefore, correctly restricted the additions limited to the extent of bringing the G.P. rate on purchases at the same rate of other genuine purchases. The decision of the Gujarat High Court in the case of N.K. Industries Ltd.(supra) cannot be applied without reference to the facts. In fact in paragraph 8 of the same Judgment the Court held and observed as under- “So far as the question regarding addition of Rs.3,70,78,125/- as gross profit on sales of Rs.37.08 Crores made by the Assessing Officer despite the fact that the said sales had admittedly been recorded in the regular books during Financial Year 1997-98 is concerned, we are of the view that the assessee cannot be punished since sale price is accepted by the revenue. Therefore, even if 6 % gross profit is taken into account, the corresponding cost price is required to be deducted and tax cannot be levied on the same price. We have to reduce the selling price accordingly as a result of which profit comes to 5.66%Therefore, considering 5.66 % of Rs.3,70,78,125/- which comes to Rs.20,98,62 1.88 we think it fit to direct the revenue to add Rs.20,98,621.88 as gross profit and make necessary deductions accordingly. Accordingly, the said question is answered partially in favour of the assessee and partially in favour of the revenue.” In these circumstances, no question of law, therefore, arises. All 9. Income Tax Appeals are dismissed, accordingly. No order at costs.” Accordingly, the Hon‟ble jurisdictional High Court had observed that the addition in respect of purchases which were found to be bogus in the case of the assessee before them, who was a trader, was to be worked out by bringing the G.P. rate of such bogus purchases at the same rate of other genuine purchases. We thus respectfully following the aforesaid judgment of the Hon‟ble High Court direct the A.O to restrict the addition insofar the bogus/unproved purchases aggregating to Rs.3,62,75,720/- in the case before us are concerned, by bringing the G.P. rate on the amount of such bogus purchases at the same rate as that of other genuine purchases. Needless to say, the assessee in the course of the set aside proceedings shall furnish the requisite details before the A.O who shall after making necessary verifications restrict the additions in terms of our aforesaid observations. The order passed by the CIT(A) is set aside and the matter is restored to the file of the A.O to give effect to our aforesaid directions.