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Income Tax Appellate Tribunal, PANAJI BENCH, PANAJI
Before: SHRI SHAMIM YAHYA, AM & SHRI RAM LAL NEGI, JM
IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI
BEFORE SHRI SHAMIM YAHYA, AM AND SHRI RAM LAL NEGI, JM ITA No. 255/Pan./2017 (Assessment Year: 2009-10) Mr. Girish Prakash Vernekar Income Tax Officer, No. 264, Mahalasa Krupa, Ward-1(2) Vs. Shastri Nagaar, Belagavi Opp. Civil Hospital, Dr. B. R. Ambedkar Road, Belagavi PAN/GIR No. ADNPP 5618 F (Appellant) : (Respondent) Appellant by : Shri A. S. Patil : Shri Y. V. Raviraj Respondent by Date of Hearing : 13.11.2018 : 19.12.2018 Date of Pronouncement
O R D E R Per Shamim Yahya, A. M.:
This appeal by the assessee is directed against the order of the learned
Commissioner of Income Tax (Appeals)-Belagavi, pertaining to assessment year 2009-
10.
The grounds raised by the assessee are as under:
1] On the facts brought on record the Learned Commissioner [Appeals] sought to have held that alleged Gold Purchases amounting to Rs.25,69,571/- in Cash from RAJESH EXPORTS, BANGALORE as not proved by The Income-Tax Officer. 2] Learned Commissioner [Appeals] is not justified in estimating Rs. 12,50,0007- as initial investment in alleged Cash Purchases of Rs.25,69,571/- when the Purchases itself were not proved by the Income-Tax Officer. Hence, additions of Rs. 12,50,OOO/- made required to be deleted. 3] Learned Commissioner [Appeals] is not justified in Sustaining GP additions of Rs.24,121/- on alleged Gold Purchases of Rs.25,69,571/-when Purchases itself is not proved by the Income-Tax Officer. Hence, GP additions of Rs,24121/- requires to be deleted.
Brief facts of the case are as under:
2 ITA No. 255/Pan./2017 A search operation u/s 132 was conducted in the case of M/s Rajesh Exports
Limited on 17.12.2013. During the course of search, the forensic imaging of hard disks
seized from the office of M/s Rajesh Exports Limited, Bangalore marked as A/REL/7. It
was found that M/s Rajesh Exports Limited maintained bullion sales record in one
database which contained details of cash and cheque/RTGS Sales. From the analysis of
the data base, it was gathered that M/ s Rajesh Exports Limited has made cash sales of
bullion amounting of Rs.4,37,07,261/- (from A.Y.2009-10 to 2013-14} to Shri Girish
Vernekar, Belgaum. Based on the said information assessments were reopened u/s 147 of
the Act.
The Assessing Officer (A.O. for short) in his assessment order stated that the
assessee had failed to submit any convincing reply to substantiate the purchases have
been accounted in his books. Assessee did not produce any evidence rebutting the said
cash purchases. Therefore, the AO had made an addition of Rs.25,69,571/- as un-
explained expenditure as per provisions of section 69C of Income-tax Act, 1961 and
Rs.24,121/- as profit on alleged sales at GP rate of 0.93%.
Against the above order, the assessee appealed before the ld. CIT(A).
The ld. CIT(A) noted the assessee’s submissions as under:
1] ".....From Assessment Year 2009-2010 to AY 2013-2014 all the completed assessments were re-opened by issue of notice U/S 148 dated 22-3-2016 & 28-3- 2016 Without giving any reasons. Appellant by letter dated 25-3-2016 & 27-5- 2016 requested the basic reasons for re-opening. Income-Tax Officer by letter dated 8-7-2016 furnished that there was action U/S 132 in the cose of RAJESH EXPORTS PVT LTD, Bangalore On 17-12-2013. During the course of Search Hard Disks Seized where in alleged cash sales to appellant were found. Except alleged cash sales by RAJESH EXPORTS no other clinching evidence or proof was given to appellant.
3 ITA No. 255/Pan./2017 1] Appellant has already given the brief facts in the Statement of Facts. Except Assessment Years 2010-2011 & Assessment Year 2013-2014 all other assessments were completed u/s 143[3J. Out of the five completed assessments in respect of following Assessment Years Appeals are Pending before Your Honour namely: Asst.Year 2011-2012 ITA No.25/Bgm/2014-2015 Filed On 15-4-2014 AsstYear 2012-2013 ITA No.25/Bgm/20l4*2015 Filed On 23-3-2015 Both Appeals are partly heard. [3] Once again appellant by letter doted 12-12-2006 requested AO either to furnish details or alternatively to issue notice U/S 133[6] or Summons U/S 131 to RAJESH EXPORTS calling for the details as all reopened assessments were getting time barred by 31-12-2016. But it appears that neither notice U/S 133[6] or Summons U/S 131 was issued to Rajesh Exports. Simultaneously appellant also by RPAD letter dated 9-12- 2016 requested Rajesh Exports to furnish the details in respect of alleged Cash Sales of Rs.4,37,07,261/-. However, there was absolutely no response from Rajesh Exports. However, assessments for all the years were finalized by the assessing Officer vide assessment Order dated 23-12-2016 by treating entire alleged Cash Purchases of Rs.4,37,07,261/- and GP thereon total amounting to Rs.4,42,21,129/- as additional income and orders were served on the appellant On 23-12-2016 itself. The details of additions are as under:-
Asst Year Additions of Cash GP Additions Total Addition Purchases 2009-2010 Rs.25,69,571 +Rs. 24121 = Rs. 25,93,692 2010-2011 Rs. 1,16,62,754 + Rs. 62,142 = Rs. 1,17,24,891 2011-2012 Rs. 17,26,837 +Rs. 25,052 = Rs. 17,51,889 2012-2013 Rs. 2,49,48,919 +Rs.3,61,945 = Rs. 2,53,10,864 2013-2014 Rs. 27,99,180 +Rs. 40.608 = Rs.28,35,788 Total Rs.4,37,07,261 +Rs. 5,13,868 = Rs.4,42,21,129
Additions of Rs.4,42,21,129/- made by The Income-Tax Officer is against law and facts of the case. Hence, appellant by way of appeal has challenged the above orders. [4] For filing Appeals once again appellant by his request letter dated 26-12- 2016 requested that the details given by Rajesh Exports are used against the appellant and that natural justice requires that copy of details should be given at least now to file effective reply at the time of hearing of appeals and challenge the additions made. Unfortunately there is o very cold response from the A.O. and no details were given. In the aforesaid circumstances it appears that even the Learned Income-Tax Officer is also not having any details except the said information which was passed on to the Office by ACIT[Central] Bangalore Vide his letter in F.No.Rajesh/DCIT/CC-l[2] 2015-2016 dated 28-12-2015 to verify the Cash
4 ITA No. 255/Pan./2017 Purchases mode by the appellant. This is evident from PARA 2 of the assessment order. In NUTSHELL the Income-Tax Officer is not justified in making total wild additions of Rs. 4,42,21,129/ on account of alleged Cash Purchases and GP addition on following grounds:- [A] Appellant is one of the major customer of Rajesh Exports, Bangalore. Appellants Purchases were all on Credit and Payments were made through RTGS. Appellant has not made even one Rupee Purchases in Cash. For the said years Purchases details are as under: - Assessment Year Credit Purchases Alleged Cosh Purchases 2009-2010 Rs. 1,25,52,370 Rs. 25,69,571 2010-2011 Rs.21,80,86,284 Rs. 1,16,62,754 2011-2012 Rs. 50,16,427 Rs. 17,26,837 2012-2013 Rs. 5,17,23,279 Rs. 2,49,48,919 2013-2014 NIL Rs. 27,99,180 Total Rs.28,73,78,360 Rs. 4,37,07,261 Entire Credit Purchases of Rs.28,73,78,360/- which are duly accounted in the appellants Books of accounts. Hence, there is absolutely no reason for Cash Purchases of Rs.4,37,07,261/-. [B] Since appellant is one of the regular major customer of RAJESH EXPORTS they might have misused the name of appellant to cover up their alleged Cash Sales. The possibility is not ruled out in the absence of any concrete evidence. [C] Alleged Cash Sales to the tune of Rs.4,37,07,261/- is in the books of RAJESH EXPORTS LTD. Hence, the onus is on the RAJESH EXPORTS to prove or explain the Cash Sales of Rs.4,37,07,261/- and onus is not on the appellant. [D] From plain reading of PARA 2 of the Assessment Order the reason given by The Income-Tax Officer without any concrete evidence is not enough to invoke Section 148 for the said years. [E] During action U/S 132 on the Premise of RAJESH EXPORTS not a Single bill copy or any record on loose paper or any other evidence was found except alleged hard disk details fed by RAJESH EXPORTS. It is self serving evidence which has no evidentiary value. [F] HARD DISK seized was used against the appellant without giving any opportunity to test the HARD DISK or to Cross examine RAJESH EXPORTS. Hence, additions made not justified. [G] Finally appellant closed his business On 31-3-2013 and thereafter absolutely no business connection for last 4 years with the RAJESH EXPORTS. In the absence of any business dealings RAJESH EXPORTS have not responded to my Phone Calls or RPAD letter sent On 9-12-2016 till today. In view of the above facts wild additions of Rs.4,37,69,403/- made by The Income-Tax Officer is not justified and requires to be deleted".
5 ITA No. 255/Pan./2017
The ld. CIT(A) agreed that there is deficiency in evidence, but still proceeded to
confirm 50% of the addition by observing as under:
Assessment order, grounds of appeal, submission made by the AR were analyzed. The addition made by the AO is on the identical issue for the five assessment years from 2009-10 to 2013-14. The AR of the appellant categorically states that assessee never purchased any items which were not shown in the books of account. AR alleges that there was no details of any Date wise/ Month wise /Item wise purchases in those entries found in the Computer Hard Disc. M/s Rajesh Exports Ltd,, usually supplied Gold only on RTGS payments made in advance. Hence such cash purchases were nothing to do with assessee. The assessee makes huge turnover on minimum capital with less margins as dealing in Gold bullion. Hence turnover is very high and admitting profits ranging from % to 0-45% of total turnover. During the financial year 2010-11 survey u/s 133A had taken place on the business premise of the assessee and no evidence was found by the department regarding suppression of sales or unaccounted purchases of Gold. This makes assessee's stand strong that alleged cash purchases with M/s Rajesh Exports Ltd as observed from notings in the seized hard disk may not be related to appellant. During the course of re- assessment proceedings for the assessment years 2008-09 to 2013-14, the AO's finding was that the assessee failed to submit any convincing reply to substantiate the purchases have been accounted in his books. The AO had not found any corroborative evidence in support of cash purchases from the M/s Rajesh Exports Ltd., Bengalaur except the notings analysis of the data base which showed the aggregate figure for the year without any break up of invoice wise or date wise details. It was only gathered that M/s. Rajesh Exports Limited had made cash sales of bullion amounting of Rs.4,37,07,261/- (from A. Y, 2009-10 to 2013-14) to Shri Girish Vernekar, Belgaum from the hidden files of M/s. Rajesh Exports. 9.1 Except unilateral entries in the computer hard disk of M/s Rajesh exports, no other corroborative evidence was found in relation to cash sales to the appellant. Ever during survey operations at the appellant's premises u/s!33A in the FY 2010-11, no incriminating documents were found by the department related to either un-account cash purchases or suppression of sales. Considering the facts of the case, there is some strength in the argument of the assessee that cash sales observed from the hard disk of Rajesh exports may not be related to the appellant. It could be a unilateral adjustment of M/s Rajesh Exports to cover up its mistake by taking name of the appellant. However, there is a clear relationship of seller and buyer between the M/s Rajesh exports and the appellant Evidence was found during the search operations, evidence was in the form of a hidden file not disclosed to the department. Considering these facts, transactions mentioned there in cannot be simply ruled out. It is a normal tendency observed in many cases that evidence related to suppressed sales/purchases etc is normally destroyed by the assessee. From the narrated above, I am of the opinion that there should have been some un-accounted purchases from M/s Rajesh Exports by the appellant as there is a clear business relation with him and in this trade cash purchases are not ruled out. The evidence was also found during the search operation and contained in a hidden file. Considering the facts in totality issue need to be analysed and correct income need to be assessed.
6 ITA No. 255/Pan./2017
9.2 Appellant is a bullion dealer. Purchases are made through RTGS in the regular books, During the year relevant to the assessment year under consideration, Gold Bullion sales made of Rs. 28,01,10,867/- declaring gross profit of Rs.26,13,065/- @ 0,93%. 9.3 Appellant being the bullion dealer, he is rotating his capital. AO has accepted margin % of appellant for working of un-accounted income. It is observed from the regular books that appellant normally purchases one lot of bullion regularly which is about one kg. at a time. Comparing the various invoices of purchases made during the FY 2008-09 from the books regularly maintained and comparing market rate of gold during the year one lot of one KG gold is worth Rs.12,50,000/-. This should be the reasonable un-accounted initial investment for the alleged cash purchases of the appellant. This capital reasonably might have got rotated cycle 'after cycle for subsequent purchases. The addition made o;" Rs,25,69,571/- u/s 69C by the AO is not reasonable. It was only keep some figure, no date-wise or invoice wise details. It has not considered the lot wise purchases nor it has considered the rotation of the same capital during the year. Hence such addition merely -based on one lump sum figure found in the hidden file without any other supporting evidence is un sustainable and not in accordance with law. Hence, the addition of Rs.25,69,571/- is restricted to Rs. 12,50,000/-. Assessing Officer is directed to re-work out the addition as stated above. This ground of appellant is partly allowed.
We have heard both the counsel and perused the records. We find that addition in
the hands of the assessee has been done on the basis of materials found on the hard disk
of M/s. Rajesh Export Private Limited, Bangalore during the search operation. These
details of cash sale to the assessee have said to be filed on the said hard disk has not been
brought on record. The details of the same were also sought by the assessee. But the A.O.
has not provided the same to the assessee. Assessee has requested the A.O. to issue notice
or summons to the M/s. Rajesh Export Private Limited to send the details of cash
purchase by the assessee but no detail has been provided. Furthermore, it is the plea of
the assessee that no other evidence and voucher of cash purchase by the assessee from the
said company was found during search. The assessee’s claim is that it has never made
cash purchases from the said party.
Furthermore, no shortcoming in the accounts or purchase or sale detail of the
assessee has been detected by the A.O.
7 ITA No. 255/Pan./2017
The submissions of the assessee have not been cogently rebutted. When the
addition is based solely upon some material found on the hard disk of the said suppliers it
was incumbent upon the A.O. to provide the details to the assessee so that he can have
the possibility to rebut the same. In the present case, we find that on what basis the
addition has been made has not at all been brought on record. The detail of such finding
in case of the supplier has not been provided to the assessee despite request. In such
circumstances, there is no opportunity to the assessee rebut the allegation.
In such circumstances, it is evident that addition has been made on surmise and
conjecture. No cogent evidence has been brought on record for the addition made. It is
settled law that when even material has been obtained from third-party, the assessee is
required to be given proper opportunity to rebut and cross examine the said third party. In
the present case leave alone the question of cross examining the said suppliers, even the
details found has not been provided to the assessee. In such circumstances, in our
considered opinion, the addition is not at all sustainable. Hence we set aside the order's of
authorities below and delete the addition of Rs.12,50,000/-.
In the result, this appeal filed by the assessee stands allowed.
Order pronounced by listing the result on the Notice Board of the Bench under Rule 34(4) of the Appellate Tribunal Rules, 1963.
Sd/ Sd/- - RAM LAL NEGI SHAMIM YAHYA JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 19.12.2018
8 ITA No. 255/Pan./2017
Copy of the order forwarded to:
(1) The Assessee; (2) The Revenue; (3) The CIT(A); (4) The CIT, Panji City concerned; (5) The DR, ITAT, Panji; (6) Guard file.
By Order Roshani, Sr. PS
(Sr. P.S./P.S.) ITAT