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Income Tax Appellate Tribunal, “E” Bench, Mumbai
Before: Shri Shamim Yahya (AM) & Shri Amarjit Singh (JM)
O R D E R Per Shamim Yahya (AM) : This appeal by the assessee is against the order of learned CIT(A) dated 31.3.2016 pertains to A.Y. 2008-09.
Grounds of appeal read as under :- 1.a. The order u/s. 263 of the Income Tax Act, 1961 passed by the Commissioner of Income Tax reviewing the order passed by Assessing Officer ('AO') is void and bad ab initio. b. The learned Commissioner of Income Tax failed to appreciate that merely because AO adopted one of the permissible view, the order passed by him could not be regarded as erroneous. c. The learned Commissioner of Income Tax grossly erred in setting aside the assessment made by the assessing officer u/s. 147 rws 143(3) of the Income Tax Act, 1961 and directing afresh assessment based on her review even when the order of AO was neither erroneous nor pre-judicial to the interest of revenue.
Without prejudice to the foregoing and on the facts of the case
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2. The learned Commissioner of Income Tax grossly erred in holding that the order of the assessing officer is erroneous as the same was made without enquiries and the same was prejudicial since only net loss was disallowed.
3. The learned Commissioner of Income Tax grossly erred in ignoring that: a. Specific queries were raised by AO and responded by appellant regarding purchase and sale made by appellant. b. AO had examined all the details and evidence submitted by the appellant and thereafter disallowed net loss incurred by appellant.
Brief facts of the case are as under :- Learned CIT in this case noted that the Assesses company filed its original return of income on 19/09/2008 declaring total income of Rs. 7,32,59,559/- and assessment u/s. 143(3) of the IT. Act, 1961 was completed on 27/12/2010 for A.Y.2008-09 by the DCIT-4(3), Mumbai determining total income under normal provisions at Rs. 7,34,40,130/- as against the returned income of Rs. 7,32,59,559/-, Subsequently, information received from the DDIT(inv), Unit 2(3), Mumbai that investigation was carried out in the case of Shri Chandrakant Pralhad Patel, who was indulging in providing accommodation entries, bogus bills without actual supply of goods or services & information specifically contained details about one entity M/s Shiyon Enterprises, who has provided the accommodation entries in of goods i.e. the has shown said party as supplier of goods in its books of accounts. On the basis of the aforesaid information, the assessment was reopened u/s 147 and notice u/s 148 dated 27/3/2015 was issued. The assessment u/s 143(3) r.w.s 147 was completed on 31/3/2016 assessing a total income of Rs, 8,87,18,837/-. The AO has disallowed the assessee's claim for set off of losses incurred on gold trading business against the profits made from the business of Management Consultancy.
Learned CIT issued show-cause notice to the assessee as under :
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On verification, certain discrepancies were found in the assessment order dated 22.3.2016 which are as under :-
On perusal of the order, It is observed that the AO held that total sale consideration from gold trading business declared by the assessee was not verifiable and the assessee failed to produce evidence to prove each and every entry towards purchase of material, quality, quantity, rate, value, etc. hence sales consideration as unexplained cash credit. And also purchases made from all the parties are held as unproved on the basis of above mentioned findings the same as unexplained expenditure, However, the AO should verified each and every entry of purchase & sales made from every party, it appears that the assessee has utilized unaccounted cash for making the bogus purchases. Hence the AO should have added the peak of the purchases of gold trading business made during the year under consideration ie. Peak amount of unaccounted cash utilized by the assessee for making the purchases. Alternatively, with regard to the specific information of bogus sales by the assessee to M/s Shiyon Enterprises received from the Investigation wing, of Rs. 38,48,11,312/- made to aforesaid party should have been treated as sum chargeable to tax under the provisions of sec 68 of the Tax Act, 1961. However, the AO has disallowed the claim of set off of loss of Rs. 1,52,78,707/- net loss from the trading only.
In the light of the above, if is clear that transaction relating to gold trading business has not been appropriately scrutinized and proper enquiries have not been made. Therefore, assessment order u/s 143(3) r.w.s 147 dated 31/03/2016 is erroneous and prejudicial to the interest of revenue within the meaning of sec 283 of the Income Tax Act, 1961.
5. Assessee responded that Assessing Officer has made necessary enquiry and hence it was beyond the jurisdiction of learned CIT to pass an order u/s. 263. However, learned CIT rejected the same by referring to amendment to section 263 by insertion of Explanation 2 with effect from 1.6.2015. He further referred to the decision of Hon'ble Calcutta High Court in the case of Rajmandir Estates Pvt. Ltd. and ITAT Kolkata in the case of Subhlakshmi Vanijya Pvt. Ltd. Vs. CIT (155 ITD 171). Thereafter learned CIT referred to the assessee’s submission and finally observed as under :-
4.1 The Assessee has contended that during the proceedings, the assessee has submitted aft the required details with respect to gold trading and evidence to prove that the purchase and were actually undertaken. The assessee has submitted evidence in the form of invoices for purchase and stock register showing movement of goods,
4 Express Industrial Services Pvt. Ltd. bank statement showing that all transactions concluded through banking channel and confirmation from all the parties have submitted. However, the AO has not accepted any of these and has stated that the assessee could not categorically prove the actual purchases and sales. The purchases have been purported made from M/s Pushpak Bullions.
It may be mentioned here that routing of the payments for through banking channels will not be sufficient to prove that It is accounted for moneys, Reference is invited to the decision of the Hon'ble Supreme Court's in the of M/s Kachwala Gems it is held that merely because the payment is through banking channels does not prove that the purchases are genuine, Furthermore, in a similar matter the Hon'ble Supreme Court decision sustaining the Hon'ble Gujarat High Court decision in N. K. Proteins is very important, wherein the order of Hon'ble High Court for 100% addition, on account of bogus purchases sustained. The Hon'ble Supreme Court order was pronounced in January 2017.
4.2 " As regards the statement that 'during the course of reassessment proceeding the assessing officer has collected all the necessary details, examined the same and then framed the reassessment order u/s 147 rws 143(3) of the ITA after disallowing the loss of Rs. 15278707/- from gold trading business’. It is observed from the records that the AO has failed to examine and verify the total sale consideration from gold trading business declared by the assessee and has merely that the was not verifiable. Therefore it is clear that the A.O. has not enquired into and verified the information available, nor made third party enquiries to cover all issues and neither verified the books of accounts themselves nor the stock details and receipt and delivery of goods. Neither has the assessee produced evidence to prove each and every entry towards purchase of material, quality, quantity, rate, value, etc. and its receipt and delivery. Therefore, the conclusions were drawn by the AO without proper enquiries and verification of purchases and sales and sources of income utilized therefore, It also appears that the assessee has utilized unaccounted cash for making the bogus purchases. Hence the AO should have verified the peak of the purchases of gold trading business made during the year under consideration i.e. Peak amount of unaccounted cash utilized by the assessee for making the purchases. Alternatively, with regard to the specific information of bogus sales by the assessee to M/s Shiyon Enterprises received from the Investigation Wing, total sales of Rs, 38,48,11,312/-made to aforesaid party this could have been treated as sum chargeable to tax under the relevant provisions of the Income Tax Act, 1961 after due enquiry and verification. It may be stated that the assessee has not evidenced during the course of Section 284 proceedings regarding the genuineness of the sate made to M/s Shiyon Enterprises,
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In the light of the above discussion, it will be clear that the Assessing Officer has not looked in to the above aspects at all, while finalizing the assessment, as the records also reveal that the AO has not asked the assessee for clarification in respect of the above issues and failed to make necessary enquiry and verification of the facts and circumstances of all the relevant transactions, Therefore, I hold that the Assessing Officer did not carry out necessary enquiry and verification related to the above issues, did not identify the peak amount used for bogus purchases or shown received from bogus sales and did not establish facts after enquiry and verification of the bogus sales and bogus purchases. Therefore, the assessment order passed by the Assessing Officer u/s, 143(3) of the Income Tax Act, 1961 dated 22.03.2016 is erroneous in so far it is prejudicial to the interests of Revenue and the requires to be set-aside u/s. 263 of the IT, Act for enquiry and verification as indicated in paras supra, Accordingly, I, Principal Commissioner of Income Tax-3, Mumbai, in exercise of powers conferred upon me u/s. 263 of the l.T, Act, set-aside the assessment made u/s. 143(3) r.w.s, 147 dated 08,11.2016, to be made, as per directions/observations in above paras, The Assessing Officer is directed to examine, verify and grant sufficient opportunity to the assessee of being heard and examine and consider all the submissions as well as evidences, which the assessee may wish to produce before him and thereafter decide this issue on merits and complete the assessment as per law.
Against the above order assessee is in appeal before us. Learned Counsel of the assessee submitted that the Assessing Officer has made all necessary enquiries. He has adopted one of the possible view. He submitted that if learned CIT is not in agreement with the possible view adopted in the order of Assessing Officer he cannot exercise jurisdiction u/s 263. Learned Counsel of the assessee placed reliance upon a catena of case laws in this regard.
Per contra, learned Departmental Representative relied upon the order of learned CIT. He further placed reliance upon the following case laws :-
CIT Vs. Amitabh Bachchan [69 taxmann.com ( SC )] 2. Arvee International Vs. Additional CIT [ITA no. 3543/M/03, ITAT, Mumbai bench 3. Deniel Merchants Vs ITO [SL to Appeal -23976/2017] 4. Horizon Investment Co. Ltd Vs CIT [ITA NO. 1593/M/13, ITAT, Mumbai Bench] 5. CIT Vs. Ballarpur Industries Ltd [2017 Tax Pub(DT) 4015 High Court Bombay] 6. Shoreline Hotel(P) Ltd Vs CIT [2018] 98 taxmann.com 234 (Bombay) 7. Shoreline Hotel(P) Ltd Vs CIT [ITA No. 964/M/15, ITAT Mumbai Bench]
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We have carefully considered the submission and perused the records. We find that before proceeding further we may gainfully refer to the order of Assessing Officer passed in this case which is the subject matter of order u/s. 263 of the I.T. Act. The concluding portion reads as under :-
12. In view of the above, the trading activity carried out by the assessee and the result declared is not reliable. In the absence of any evidence to prove each and every entry made towards purchase of material, quality, quantity, rate, value, etc. similarly with regard to the consequential sale of the same (since trading) the sale consideration declared by the assessee is also not verifiable. Therefore, the expenditure of Rs. 97.31 crore incurred on account of purchase made from all the hawala entry providers are treated as unexplained expenditure. Similarly, the sale consideration of Rs. 95.78 crore is treated as unexplained cash credit. Consequently, since the trading activity had resulted in loss of Rs. 1,52,78,707/- is hereby rejected and added to your total income. Penalty proceedings u/s. 271(l)(c) of the Income Tax Act are initiated separately for concealment of income and filing inaccurate particulars of income.
Subject to the above, the total income of the assessee company is computed as under: Total income as per order u/s. 143(3) 7,34,40,130 dated 27.12.2010 Add : loss disallowance as discussed above 1,52,78,707 Total taxable income 8,87,18,837
From the above we find that the Assessing Officer has rejected the book results for the trading activity of the assessee and hence he has disallowed the loss of Rs. 1,52,78,707/-. He also held that hawala purchases are treated as unexplained expenditure amounting to Rs. 97.31 crores and similarly sale consideration of Rs. 95.78 crores is treated as unexplained cash credit. However, in finally making the computation the Assessing Officer has only disallowed the loss for the year of Rs. 1,52,78,707/-. He has not added the unexplained expenditure Rs. 97.31 crores and unexplained cash credit of Rs. 95.78 crores as held by the Assessing Officer in the body of the order.
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Now we note that learned CIT(A) in his direction for making enquiry is suggesting that after proper enquiry peak credit of unexplained purchases should be added. He is also suggesting that the sales to M/s Shiyon Enterprises should be added as unexplained cash credit amounting to Rs. 38,48,11,312/- after proper further enquiry by the Assessing Officer.
Upon careful consideration we find that in the assessment order the Assessing Officer apart from disallowing the loss of Rs. 1.52 crores has also held that a sum of Rs. 97.31 crores as u unexplained expenditure and he has also held that sale consideration of sum of Rs. 95.78 crores is unexplained cash credit. The additions suggested by learned CIT can by no stretch of imagination increase the amount of addition/disallowance more than the additions/disallowance as mentioned by the Assessing Officer in the body of the assessment order. In this view of the matter we fail to understand how the order of learned CIT is aimed at curing any prejudice caused to the Revenue. Rather it aims at reducing the additions/disallowance made/suggested by the Assessing Officer. We find that learned CIT has failed to appreciate the proper purport of the Assessing Officer’s order. As held by Hon'ble Apex Court in the case of Kapoorchand Shreemal, it is the duty of the appellate authority to correct the errors in the order of the authorities below and remit the matter to them with direction if any unless prohibited by law. Accordingly, we are of the considered opinion that learned CIT needs to consider the Assessing Officer’s order afresh and its impact and his consequent order under 263, in light of our observation as above. Needless to add assessee should be granted adequate opportunity of being heard.
In the result, appeal of the assessee is allowed for statistical purposes.
Order has been pronounced in the Court on 16.5.2019.