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Income Tax Appellate Tribunal, MUMBAI BENCH “A”, MUMBAI
Before: SHRI C.N. PRASAD, HONBLE & SHRI MANOJ KUMAR AGGARWAL, HONBLE
2 to 4067 & 4339 to 4341/MUM/2017 ITA NO.90/MUM/2018 M/s. Abhinandan Buildtech Pvt. Ltd. O R D E R PER C.N. PRASAD (JM) 1. These appeals are filed by the assessee and Revenue for the Assessment Years 2008-09, 2011-12 and 2012-13 and appeal by the assessee for the Assessment Year 2010-11.
The only issue in all these appeals is, in respect of the addition made towards bogus purchases by the Assessing Officer. The Assessing Officer in all these Assessment Years based on the information of the Sales Tax Department in their official website and the information from the Investigation Wing, noticed that several dealers have provided only accommodation entries for purchase of materials without supply of goods. In the course of Assessment Proceedings, A.O noticed from the ledger extract that the assessee purchased materials from several dealers who appeared in the website of the Sales Tax Department and required the assessee to substantiate the purchases made from such dealers.
Assessee made various submissions before the Assessing Officer contending that the purchases were genuine. Assessee produced vouchers, sales invoices, bank statements, transportation details with vehicle numbers and delivery challans mentioned in the invoices. It was contended that the material was supplied directly to the construction site
3 to 4067 & 4339 to 4341/MUM/2017 ITA NO.90/MUM/2018 M/s. Abhinandan Buildtech Pvt. Ltd. as the assessee is into civil construction. The payments were made through account payee cheques. It was also contended that mere non- payment of VAT/Sales Tax by the vendors does not mean that assessee has not incurred any cost for the materials purchased or sold by them to the assessee. Not convinced with the submissions of the assessee, the Assessing Officer disallowed the entire purchases treating them as bogus.
On appeal the Ld.CIT(A) considering the submissions of the assessee and the remand report, rejoinder of the assessee and various case laws he estimated the profit from purchases @25% being the average profit shown by the assessee from its projects undertaken during the relevant Assessment Years. Against this order of the Ld.CIT(A) both the assessee and Revenue are in appeal before us.
For the Assessment Year 2010-11 there is no appeal by the Revenue. Coming to the appeal of the assessee for the Assessment Years 2008-09, 2010-11, 2011-12 & 2012-13 and the Revenue appeal for the Assessment Year 2012-13, the Learned Counsel for the assessee submitted that the assessee engaged into the business of construction of commercial and residential buildings. The Assessing Officer based on the Sales Tax Department’s information doubted the genuineness of the purchases made by the assessee as the assessee purchased materials
4 to 4067 & 4339 to 4341/MUM/2017 ITA NO.90/MUM/2018 M/s. Abhinandan Buildtech Pvt. Ltd. from some of the dealers who appeared in the Sales Tax Department’s website as Hawala dealers. Learned Counsel for the assessee submitted that in the course of Assessment Proceedings assessee produced stock register, invoices, bank statements to prove the genuineness of the purchases made. The payments were made through account payee cheques. Therefore, the entire purchases cannot be treated as bogus. Learned Counsel for the assessee submitted that estimation of profit @25% by the Ld.CIT(A) is also on higher side. Referring to the Coordinate Bench decision in the case of M/s. Adeshwer Enterprise v. DCIT in ITA.No. 4335 to 4338/MUM/2017 dated 12.02.2018 submitted that, this assessee M/s. Adeshwer Enterprise belongs to the assessee’s group company and in this case also Assessing Officer disallowed 100% of the purchases from some of the parties and the Ld.CIT(A) estimated the profit element from the purchases @15%. The Tribunal considering various submissions of the assessee estimated the profit on the purchases @3%. Therefore, Learned Counsel for the assessee submitted that following the said order the profit element from the purchases may be restricted to 3%.
Ld. DR vehemently supported the order of the Assessing Officer. Ld. DR submitted that the notices issued u/s. 133(6) of the Act were returned and the assessee could not produce the parties establishing the 5 to 4067 & 4339 to 4341/MUM/2017 ITA NO.90/MUM/2018 M/s. Abhinandan Buildtech Pvt. Ltd. genuineness of the purchases. Ld. DR also submitted that movement of materials is not proved and the consumption is in doubt. Therefore, the Assessing Officer is justified in treating the entire purchases as bogus.
We have heard the rival submissions, perused the orders of the authorities below. In so far as the appeals of the Revenue for the Assessment Years 2008-09 & 2011-12 are concerned the tax effect in these appeals is less than ₹.10 Lakhs. Thus, in view of the view of the CBDT Circular No. 3/2018 dated 11/07/2018 in F.No.279/Misc.142/2007- ITJ (Pt) these two appeals are dismissed.
Coming to the issue in other appeals, we find that the Assessing Officer disallowed purchases from some of the parties treating them as bogus. On a perusal of the Assessment Order, we see that the addition was made only based on the information kept in the Sales Tax Department website that some of the dealers have provided accommodation entries. The Assessing Officer has not brought any concreate evidence to prove that the assessee purchased materials from these hawala dealers. Assessee produced various evidences to establish the genuineness of the purchases. The Assessing Officer not considering the evidences produced treated the entire purchases as non-genuine and at the same time the sales made from such purchases were accepted by the assessee and various case laws estimated the profit element @ 25%. We find that on identical facts in assessee’s group company the Tribunal estimated the profit on the purchases @3% observing as under: - “3. The brief facts of the case for A.Y. 2008-09 are that a search action was carried out on 18.10.2010 on Chhajer Group and its associate concerns which are engaged in the business of development of commercial and residential projects. The case of the assessee was also covered under Section 132 of the Income Tax Act, 1961 (hereinafter “the Act”). The assessee had filed the original return of income on 27.06.2008 declaring an income of ₹.53,07,105/-. Notice under Section 153A of the Act was issued on 12.08.2011 and it was complied with by filing return of income on 26.09.2011 declaring the same income as in the original return. In para 8.1 of the assessment order the AO observed that the Sales Tax Department had busted a racket of bogus dealers who were engaged in providing accommodation bills/invoices to various traders/beneficiaries the details whereof were uploaded on the official website. He also mentioned that information was received from DGIT (Inv) Wing, Mumbai & Pune regarding these dealers. When the assessee filed copies of extracts of purchases it was noticed by the AO that the assessee too had made purchases from several of these bogus dealers as listed by the Sales Tax Department during the year under consideration and accordingly the assessee was issued show cause notice on 19th March, 2013 as to why the same should not be disallowed which was replied by the assessee vide letter dated 20.03.2012. The assessee submitted that it has made purchases from three parties aggregating to ₹.31,03,479/- and submitted the details of purchases, bills, vouchers, vehicle numbers and delivery challans, etc beside the details of payments. The assessee submitted that these purchases were made for the construction of various projects and the materials were duly consumed and the sales were also reflected in the books of account of the assessee. It was also stated that mere non payment of VAT/Sales Tax by the vendor do not mean that the assessee has not incurred any cost on the construction as the assessee has issued account payee cheques to various vendors who supplied material to the assessee which were also cleared. The reply of the assessee did not find favour with the AO and he finally treated the entire purchase as bogus and non-genuine and added the same to the income the assessee by framing assessment under Section 143(3) r.w.s. 153A of the Act assessing the income at ₹.84,10,580/- vide order dated 22.03.2013. Aggrieved the assessee went in appeal before the CIT(A).
4. In the appellate proceedings the learned CIT(A) partly allowed the pleas of the assessee by observing and holding as under: - “48. Asst year 2008-09: The appellant has shown average profit of only 5% from the project Mahavir Ratan. The AO has also estimated profit @5% of the WIP in the next two years. But I think that is on a very low side. Considering various cases discussed above and the profit estimation confirmed in those 7 to 4067 & 4339 to 4341/MUM/2017 ITA NO.90/MUM/2018 M/s. Abhinandan Buildtech Pvt. Ltd. cases, I think it reasonable to disallow 15% of the impugned purchases. Thus out of the disallowance of ₹.31,03,479/- addition is confirmed to the extent of ₹.4,65,000/-.” Aggrieved assessee is in appeal before us.
5. The learned A.R. vehemently submitted before us that the order of the CIT(A) sustaining the addition to the extent of 15% of the bogus purchase is contrary to the facts of the case. The learned A.R. submitted that the assessee has in fact purchased goods from the market and made the payments by account payee cheques and produced before the AO the proofs of purchases of material such as delivery challans, etc. and the corresponding sales were also shown in the books of account of the assessee. The learned A.R. submitted that the assessee is following project completion method wherein profits are offered to tax only after completion of the project whereas the AO had added 100% of the bogus purchase to the income of the assessee disregarding the said system of accounting followed by the assessee. The learned A.R. further submitted that despite producing all the evidences, the AO has not done any verification and merely added the entire purchase from three parties aggregating to ₹.31,03,479/- to the income of the assessee. The learned A.R. also submitted that the case of the assessee was covered under search action and the year under consideration has been attained finality on the date of search and the addition was not based on evidences/material seized during the search action. Therefore the assessment order passed by the AO is contrary to law.
6. The learned D.R., on the other hand, heavily relied on the orders of the Authorities below and submitted that the assessee was clearly found a beneficiary of bogus purchase bills and, therefore, the action of the CIT(A) confirming 15% of the said purchase is reasonable and correct and be confirmed.
7. We heard the rival submissions and perused the material on record. We find that the assessee is undisputedly found to be beneficiary of bogus purchase bills which during the year were to the tune of ₹.31,03,479/- from three parties as published by the Sales Tax Department of Maharashtra on its official website. Moreover the AO received information from DGIT (Inv) Wing, Mumbai and Pune of the fact that the assessee is beneficiary of bogus purchase bills and is only receiving accommodation entries without receiving material physically. The assessee during the course of assessment proceedings has filed necessary details before the AO and is only after examination of the said bills the AO found that the assessee is beneficiary of bogus transactions. The learned CIT(A) sustained the addition partially at 15% of the total purchases by observing that the assessee has estimated the profit on WIP @5% which is low and thus justified sustaining of disallowance at 15%. However, in similar type of cases the Coordinate Benches have taken a view that the percentage addition should be made ranging from 2 to 12.5% depending upon the facts and circumstances of the case in order to bring to tax the savings which the assessee has made by the reason of purchase of goods from grey market when the sales/consumption is undisputed. In the present case the sales were not disputed and the method of accounting followed by the assessee is project completion, therefore, we are inclined to estimate the profit on the above purchases at 3%. Accordingly appeal of the assessee is partly allowed without deciding the issue technically and legally.”
8 to 4067 & 4339 to 4341/MUM/2017 ITA NO.90/MUM/2018 M/s. Abhinandan Buildtech Pvt. Ltd. 9. Facts being identical, we are inclined to follow the order of the Tribunal in assessee’s group case and direct the Assessing Officer to restrict the disallowance of purchases @3%.
In the result, appeals of the assessee for the Assessment Years 2008-09, 2010-11, 2011-12 & 2012-13 are partly allowed and appeals of the Revenue for the Assessment Years 2008-09, 2011-12 & 2012-13 are dismissed.
Order pronounced in the open court on the 10th October, 2018