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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Before: SHRI SHAMIM YAHYA, AM
O R D E R Per Shamim Yahya, A. M.: These appeals by the assessee are directed against the respective order of ld.
Commissioner of Income Tax (Appeals) and pertains to assessment years 2010-11 and 2011-12.
The common issue raised is that the ld. CIT(A) erred in upholding the validity of reopening and sustaining disallowance of 12.5 %percent of bogus purchase.
Since facts are identical I am referring to the facts and figures from the A.Y. 2010-11.
In this case, the Assessing Officer (A.O. for short) received information from Investigation Wing about vital information received from Sales Tax Department regarding parties indulging in issuing bogus bills without supply of any material. The assessee was beneficiary of twelve such parties from whom purchases of Rs.55,58,742/- was claimed as tabulated below:-
SR. Nwme of the Party Amount (Rs.) NO. 1 Paras Steel India 71,605 2 Universal Trading Co. 25,484 3 Rajratan Metal (India) 5,20,397 4 Shree Gururaj Metal Corp. 1,20,317 5 Hansh Metal & Tubes 11,08,769 6 Padmavati Metal & Alloys 9,28,984 7 Ashok Metal & Tubes 5,73,718 8 Rajkamal Steel 19,18,497 9 Mahavir Corporation 60,104 10 Reliant Metal Corporation 1,25.990
11 Shree Ganesh Steel 59,081 12 Manavlmpex 47.796 Total 55,58.742
Based on this, notice u/s. 148 of the Act was issued on 16.09.2014. The assessee filed letter on 03.11.2015 stating that the original return filed u/s 139 of the Act-be treated as filed in response to the notice u/s. 148 of the Act.
The AO issued notices u/s. 133(6) of the Act by Registered Post at the address provided by the assessee in respect of the impugned parties. These notices could not be served. This was informed to the assessee who was requested to produce the parties and furnish evidence to support the genuineness of the purchases claimed. Details such as invoices, copies of ledger account and details of transactions of goods were called. The assessee furnished purchase invoices, ledger accounts, copy of its own bank statements showing payments being made. Statement reflecting details of corresponding sales for the purchases was submitted. The AO noted that the parties were net produced, inward Register, Stock Register were not produced. Relying on various case laws, the AO rejected the books of accounts and disallowed 12.5% of the impugned purchases.
Against the above order assessee appealed before the ld. CIT(A).
The ld. CIT(A) confirmed the action of the assessing officer in making addition of 12.5% of the bogus purchase. The ld. CIT(A) also upheld the validity of reopening as under:
4.4 I have considered the submissions carefully. I am unable to accept this argument of the appellant. It is seen that the assessing officer had received credible information about parties issuing bogus bills without supplying any material. The appellant was a beneficiary of such bogus bills without supplying any material. The appellant was a beneficiary of such bogus bills. It is a trite law that for reopening of assessment, there must be only a prima facie basis for formation of reason to believe that income has escaped assessment. The escapement of income need not be proved at this stage. The information received clearly indicated That bogus purchases were claimed as expenses and therefore income had escaped assessment. Impugned panics had admitted to not supplying any goods and only issuing bogus bills. This fact was not disclosed by the appellant. The appellant has not shown how he can say that the assessing officer has not applied his mind and formed his opinion of the income escaping assessment. The reasons recorded clearly shows the application of mind by the assessing officer. The return was only processed u/s 143(1) earlier and no order u/s 143(3) of the Act was passed earlier. Hence, it is held that there is no infirmity in reopening of the assessment, and the grounds challenging the reopening of assessment are dismissed/In the result, Ground of Appeal No.l is dismissed.
8. Against the above order of ld. CIT(A), the the assessee is in appeal before the ITAT.
I have heard the ld. Departmental Representative (ld. DR for short). A request for adjournment was moved on behalf of the assessee. The same is rejected as the issue of bogus purchase has already been dealt with in a catena of cases.
As regards the reopening of the assessee, on a careful consideration, I note that in this case information was received by the Assessing Officer from DGIT Investigation (Mumbai) there are some parties who are engaged in the hawala transactions and are also involved in issuing bogus purchase bills for sale of material without delivery of goods, which information was based on information received by Revenue from Maharashtra Sales Tax Authority. Information was received that the assessee was beneficiary of hawala accommodation entries from entry providers by way of bogus purchase. The accommodation entry provider has deposed and admitted before the Maharashtra Sales Tax Authority vide statement/ affidavit that they were engaged in providing bogus accommodation entries wherein bogus sale bills were issued without delivery of goods, in consideration for commission. These, accommodation entry providers, on receipt of cheques from parties against bogus bills for sale of material, later on withdrew cash from their bank accounts, which was returned to beneficiaries of bogus bills after deduction of their agreed commission. The Assessee was stated to be one of the beneficiaries of these bogus entries of sale of material from hawala entry operators in favour of the assessee wherein the assessee made alleged bogus purchases through these bogus bills issued by hawala entry providers in favour of the assessee. These dealers were surveyed by the Sales Tax Investigation Department whereby the directors of these dealers have admitted in a deposition vide statements/affidavit made before the Sales Tax Department that they were involved in. issuing bogus purchase bills without delivery of any material. There is a list of such parties wherein the assessee is stated to be beneficiary of bogus purchase bills.
From the above, I find that tangible and cogent incriminating material were received by the AO which clearly showed that the assessee was beneficiary of bogus purchase entries from bogus entry providers which formed the reason to believe by the AO that income has escaped assessment. The information so received by the AO has live link with reason to believe that income has escaped assessment. On these incriminating tangible material information, assessment was reopened. At this stage there has to be prima facie belief based on some tangible and material information about escapement of income and the same is not required to be proved to the guilt. In this regard, I refer to the decision of the Hon'ble Apex Court in the case of CIT(A) Vs. Rajesh Jhaveri Stock Brokers P. Ltd, 291 ITR 500:-
"Section 147 authorises and permits the Assessing Officer to assess or reassess income chargeable to lax if he has reason to believe that income for any assessment year has escaped assessment. The word "reason" in the phrase "reason to believe" would mean cause or justification. If the AO has cause or justification to know or suppose (hat income had escaped assessment, it can be said to have reason to believe that an income had escaped assessment. The expression cannot be read to mean that the AO should have finally ascertained the fact by legal statute with solicitude for the public exchequer with an inbuilt idea of fairness to taxpayers. As observed by the Supreme Court in Central Provinces Managnese Ore Co, ltd. v. ITO(1991) 191 ITR 662, for initiation of action under section 147(a) (as the provision stood at the relevant time) fulfillment of the two requisite conditions in that regard is essential. At that stage, the final outcome of the proceeding is not relevant. In other words, at the initiation stage, what is required is "reason to believe", but not the established fact of escapement of income. At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could have formed a requisite belief Whether the materials would conclusively prove the escapement is not the concern at that stage. This is so because the formation of belief by the AO is within the realm of subjective satisfaction ITO v. Selected Dalurband Coal Co, (P.) Ltd. (1996) 217 ITR 597 (Supreme Court): Raymond Woollen Mills Ltd. v. ITO (1999) 236 ITR 34 (Supreme Court).”
The above discussion and precedent from Apex Court fully justify the validity of reopening in this case. Further I find that the Ld. CIT(A) has carefully examined the issue and has properly appreciated the issue. Hence, I do not find any infirmity in the same.
Accordingly, I uphold the order of the Ld. CIT(A) on the issue of reopening.
As regards the merits of the case I find that credible and cogent information was received in this case by the assessing officer that certain accommodation entry provider/bogus suppliers were being used by certain parties to obtained bogus bills.
The assessee was found to have taken accommodation entry/bogus purchase bills during the concerned assessment year from different parties. Based upon this information assessment was reopened. The credibility of information relating to reopening remains un-assailed. In such factual scenario, the assessing officer has made the necessary enquiry. The issue of notice to all the parties have returned unserved. Assessee has not been able to provide any confirmation from any of the party. Assessee has also not been able to produce any of the parties. Necessary evidence relating to transportation of the goods was also not on record. In this factual scenario, it is amply clear that the assessee has obtained bogus purchase bills. Mere preparation of documents for purchases cannot controvert overwhelming evidence that the provider of these bills is bogus and non-existent.
The Sales Tax Department in its enquiry has found the parties to be providing bogus accommodation entries. The assessing officer also issued notices to these parties at the addresses provided by the assessee. All these notices have returned unserved. Assessee has not been able to produce any of the parties. Neither the assessee has been able to produce any confirmation from these parties. In such circumstances, there is no doubt that these parties are non-existent. We find it further strange that assessee wants the Revenue to produce assessee’s own vendors, whom the assessee could not produce. The purchase bills from these non-existent/bogus parties cannot be taken as cogent evidence of purchases. In light of the overwhelming evidence, the Revenue authorities cannot put upon blinkers and accept these purchases as genuine. This proposition is duly supported by Hon’ble Apex Court decision in the case of Sumati Dayal vs. CIT [1995] 214 ITR 801 (SC) and CIT vs. Durga Prasad More [1971] 82 ITR 540 (SC). In the present case, the assessee wants that the unassailable fact that the suppliers are non-existent and, thus, bogus should be ignored and only the documents being produced should be considered. This proposition is totally unsustainable in light of Hon’ble Apex Court decisions.
I further find that Hon'ble jurisdictional High Court in the case of Nikunj Eximp Enterprises (in Writ petition no 2860, order dt. 18.6.2014) has upheld 100% allowance for the purchases said to be bogus when the sales have not been doubted.
However, the facts of that case were different. Furthermore, the sales in that case were basically to government departments. Hence, the ratio from this decision is not fully applicable on the facts of the case.
In these circumstances, the learned Departmental Representative has referred to Hon’ble Gujarat High Court decision in the case of Tax Appeal No. 240 of 2003 in the case of N K Industries vs. Dy. CIT vide order dated 20.06.2016, wherein 100% of the bogus purchases was held to be added in the hands of the assessee and tribunals restriction of the addition to 25% of the bogus purchases was set aside. It was expounded that when purchase bills have been found to be bogus, 100% disallowance was required. The special leave petition against this order along with others has been dismissed by the Hon’ble Apex Court vide order dated 16.1.2017.
I further note that Hon’ble Rajasthan high court has similarly taken note of decisions of the apex court on the issue of bogus purchases in the case of CIT Jaipur vs Shruti Gems in of 2009. The Hon’ble High Court has referred to the decision of CIT Jaipur vs. Aditya Gems, D. B. in ITA No. 234 of 2008 dated 02.11.2016, wherein the Hon’ble Court had inter alia held as under:
"Considering the law declared by the Supreme Court in the case of Vijay Proteins Ltd. Vs. Commissioner of Income Tax, Special Leave to Appeal (C) No.8956/2015 decided on 06.04.2015 whereby the Supreme Court has dismissed the SLP confirmed the order dated 09.12.2014 passed by the Gujarat High Court and other decisions of the High Court of Gujarat in the case of Sanjay Oilcake Industries Vs. Commissioner of Income Tax (2009) 316 ITR 274 (Guj) and N.K. Industries Ltd. Vs. Dy. C.I.T., Tax Appeal No.240/2003 decided on 20.06.2016, the parties are bound by the principle of law pronounced in the aforesaid three judgments.
However, I note that this is not an appeal by the Revenue. Hence, it will not be appropriate to consider and take away the relief already granted by the Assessing Officer and ld. Commissioner of Income Tax (Appeals) to the assessee. Hence, I confirm the order of ld. CIT(A).
In the result, these appeals filed by the assessee stand dismissed.
Order pronounced in the open court on 17.10.2018