MANAK CHAND DAGA,FARIDABAD vs. ITO,WARD-1(3), FARIDABAD
Facts
The assessee's assessment for AY 2013-14 and AY 2014-15 was reopened based on information that the assessee had received accommodation entries from M/s Apex Associates, which was controlled by providers of such entries. The Assessing Officer disallowed alleged bogus purchases from Apex Associates and made additions to the assessee's income, which were subsequently sustained by the Ld. CIT(A).
Held
For AY 2013-14, the Tribunal held that disallowing 100% of purchases while accepting sales was not justified, and directed a disallowance of 12.5% of the disputed purchases. For AY 2014-15, the Tribunal found that the payment made to Apex Associates was for previous years' outstanding balances and no purchases were recorded for the current year, thus deleting the addition made by the AO.
Key Issues
1. Validity of reopening assessment under Section 147/148. 2. Justification and quantum of disallowance for alleged bogus purchases without cross-examination or independent verification.
Sections Cited
148, 143(2), 142(1), 147, 1448, 151A, 37(1), 142(3)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, DELHI BENCH ‘SMC’: NEW DELHI
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘SMC’: NEW DELHI BEFORE, SHRI S.RIFAUR RAHMAN, ACCOUNTANT MEMBER AND SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER ITA No.16/Del/2024 (ASSESSMENT YEAR 2013-14) ITA No.17/Del/2024 (ASSESSMENT YEAR 2014-15) Manak Chand Daga Income Tax Officer 203/31 MCF-265 Ward-1(3), Faridabad Gali No.2, Parvesh Marg Vs. Friends Colony, Faridabad Haryana-121002 PAN-AHIPD6789Q (Appellant) (Respondent) Assessee by Shri Ved Jain, Advocate Ms. Uma Upadhayay, CA & Ms. Kirti Gupta, CA Respondent by Shri Om Prakash, Sr. DR Date of Hearing 09/05/2024 Date of Pronouncement 16/06/2024 ORDER PER S.RIFAUR RAHMAN,AM: 1. The both appeals have been filed by the Assessee against
the orders of Learned Commissioner of Income Tax (Appeals),
National Faceless Appeal Centre, Delhi [“Ld. CIT(A)”, for short],
2 ITA Nos.16 & 17/Del/2024 Manak Chand Daga vs. ITO
dated 21/11/2023 for Assessment Years 2013-14 & 2014-15
respectively.
These two appeals are interconnected having common issues.
Both these appeals are heard together and disposed off by this
common order. We are taking ITA No.16/Del/2024 as a lead case.
Brief facts of the case are, the assessee filed its return of
income for Assessment Year 2013-14 on 12th September, 2013
declaring total income of Rs.2,96,45/-. The case of the assessee
was reopened by issue of notice u/s 148 of the Income Tax Act,
1961 (‘the Act’ for short). On the basis of information and belief
that assessee had failed to disclose the full and true material facts
in respect of purchase from M/s Apex Associates through fake
purchase bills issued by Shri Pritam Singh and Sh. Ajay Kumar,
were engaged in providing accommodation entries.
In response to notice issued u/s 148, the assessee had filed
the return of income. Subsequently, statutory notices u/s 143(2)
and 142(1) were issued and served on the assessee, reasons of
reopening the assessment also shared with the assessee.
3 ITA Nos.16 & 17/Del/2024 Manak Chand Daga vs. ITO
The assessee is engaged in the business of manufacture of
hose pipes, a proprietorship concern named and style of M/s
Pankaj Flexibles. Based on the information received from
Investigation Wing, Faridabad, the assessee is one of the
beneficiaries of receiving accommodation entries from various
concerns and operated by Sh. Pritam Singh and Sh. Ajay Kumar.
The Assessing Officer observed that assessee has taken purchase
bills from Apex Associates, which is one of the concern controlled
by Sh. Subhash Gupta and Sh. Manish Agarwal . Based on the
statement recorded from Sh. Shubhash Gupta and Sh. Manish
Agarwal, he treated the purchase made by the assessee from Apex
Associates as bogus and proceeded to disallow the purchases and
made the addition of Rs.8,79,843/-.
Aggrieved with the above order, the assessee preferred an
appeal before the Ld. CIT(A) and filed the detailed submissions
before him with grounds of appeal. In the appellate proceedings,
the assessee has not complied to the various notices for hearing
issued by the Ld. CIT(A), since, no representation was forthcoming
from the assessee side, the Ld. CIT(A) decided the issue based on
4 ITA Nos.16 & 17/Del/2024 Manak Chand Daga vs. ITO
the information available on record. Accordingly, he sustained the
addition made by the Assessing Officer.
Aggrieved with the above order, the assessee is in appeal
before us raising the following grounds of appeal:-
“1. On the facts and circumstances of the case, the order passed by the learned Commissioner of Income Tax (Appeals) [CIT(A)]. Income Tax Department (ITD), National Faceless Appeal Centre is bad, both in the eyes of law and on facts.
2 On the facts and circumstances of the case, learned CIT(A), ITD has erred both on facts and in law in confirming the order of the AO, without providing the assessee reasonable opportunity of being heard in clear violation of the principle of natural justice.
3 On the facts and circumstances of the case, learned CIT(A), ITD has erred both on facts and in law in confirming the order of the AO despite the fact that reopening the assessment under Section 147 of the Act and consequent reassessment order passed under Section 147 of the Act are illegal, invalid and without complying with the statutory conditions and the procedure prescribed under the law.
4 (i) On the facts and circumstances of the case, learned CIT(A), ITD has erred both on facts and in law in confirming the order of the AO despite that the reasons recorded for reopening the assessment does not meet the requirements under section 147 of the Act, bad in law and are contrary to the facts.
(ii) That the learned CIT(A), ITD has erred both on facts and in law in confirming the reopening ignoring the fact that there is no live nexus between the reasons recorded and the belief formed by the assessing officer.
On the facts and circumstances of the case, learned CIT(A), ITD has erred both on facts and in law in confirming the reopening despite the fact that the same has been made by the AO on the basis of borrowed satisfaction without independent application of mind.
5 ITA Nos.16 & 17/Del/2024 Manak Chand Daga vs. ITO
On the facts and circumstances of the case, the learned CIT(A), ITD has erred, both on facts and in law, in confirming the action of the AO despite that the reassessment proceedings initiated by the learned AO without obtaining valid prior approval of the prescribed authority under the Act is bad in law and liable to be quashed.
(i) On the facts and circumstances of the case, the learned CIT(A), ITD has erred both on facts and in law in confirming the action of the AO despite the fact that the assessment order is invalid and liable to be quashed as the same has been passed by the AO without issue of valid notice under section 143(2) of the Income Tax Act.
(ii) That the abovesaid notice issued under section 143(2) of the Act by the AO is illegal and non-est as the same has been issued in violation of section1448 r.w.s. section 151A of the Act along with e-Assessment of Income Escaping Assessment Scheme, 2022.
(i) On the facts and circumstances of the case, the learned CIT(A), ITD has erred both on facts and in law in confirming the disallowance of Rs. 8,79,843/- made by the AO on account of purchases made by the assessee holding the same to be not genuine invoking section 37(1) of the Act
(ii) That the abovesaid disallowance has been confirmed despite the fact that these purchases have been made wholly and exclusively for the purpose of business activities and hence disallowance under section 37(1) is uncalled for.
(iii) That the above disallowance has been confirmed rejecting the detailed explanation and evidences brought on records by the assessee during the course of assessment proceedings.
On the facts and circumstances of the case, the learned CIT(A), ITD has erred, both on facts and in law in confirming the inference drawn by the AO merely on the basis of a statement of third person at the back of the assessee without providing the opportunity to the assesse to cross examine the statements.
On the facts and circumstances of the case, the learned CIT(A), ITD has erred, both on facts and in law, in confirming the action of the AO despite the fact that the assessment order having been framed on the basis of material collected at the back of the assessee, without providing adequate opportunity to the assessee to rebut the same in violation of statutory provision of section 142(3) of the Act.
6 ITA Nos.16 & 17/Del/2024 Manak Chand Daga vs. ITO
On the facts and circumstances of the case, the learned CIT(A), ITD has erred both on facts and in law in confirming the above disallowance despite the fact that the same has been made by the AO by indulging in surmises without bringing on any direct evidence against the assessee, only on the basis of presumptions and assumptions.
On the facts and circumstances of the case, the learned CIT(A), ITD has erred, both on facts and in law in confirming the above disallowance rejecting the contention of the assessee that said disallowance has been made merely relying on the information received from the investigation wing without independent application of his own mind.
On the facts and circumstances of the case, the learned CIT(A), ITD has erred, both on facts and in law in confirming the above disallowance in drawing adverse inference, by misinterpreting the statement recorded during the course of search on oath.
On the facts and circumstances of the case, the learned CIT(A), ITD has erred, both on facts and in law, in confirming the above said disallowance despite the fact assessee is maintaining proper books of accounts and audited as per law and nothing adverse in the books was pointed out by the AO during the course of assessment proceedings.
On the facts and circumstances of the case, the learned CIT(A), ITD has erred, both on facts and in law, in confirming the abovesaid disallowance despite the fact that the quantity purchased and sold being completely tallying, the disallowance made by the AO cannot be sustained.
The appellant craves the leave to add, amend or alter any of the grounds of appeal.”
At the time of hearing, the Ld. AR of the assessee brought to
our notice page 10 of the PB and submitted that the Assessing
Officer proceeded to make the addition only based on statement
recorded from the alleged accommodation entry providers.
Further, he brought to our notice page 67 of the PB and submitted
7 ITA Nos.16 & 17/Del/2024 Manak Chand Daga vs. ITO
that even though representation was made before the Ld.CIT(A) for
request for cross examination, however, no opportunities was
granted to the assessee. He prayed that the Assessing Officer
cannot proceed to make the addition 100% of alleged purchases
and prayed that certain percent of above purchases may be
disallowed by following ratio of several decisions of this Court.
With regard to appeal filed by the assessee for Assessment
Year 2014-15, he submitted that the additions made by the
Assessing Officer which is exactly similar reasons and AO has
disallowed the purchases made by the assessee from Apex
Associates without properly making enquiry. He submitted that
AO has made the addition of Rs.4,85,000/- as non genuine
purchase, however, he brought to our notice ledger copy of the
Apex Associates which is placed at page 46 of the PB wherein
assessee has not purchased any material from Apex Associates
during this assessment year, however, assessee had only made
payment towards the outstanding balance towards the purchase of
earlier years, therefore, AO cannot disallow the same during this
year. He submitted that the Assessing Officer noticed the above
8 ITA Nos.16 & 17/Del/2024 Manak Chand Daga vs. ITO
payments from the bank account statement of Apex Associates
with Canara Bank wherein they have received Rs.4,85,000/-
during the year from the assessee. Based on the above bank
statement, he proceeded to make the addition without properly
verifying whether the assessee had actual purchased the goods
from Apex Associates.
On the other hand, the Ld. DR relied on the orders of lower
authorities.
Considered the rival submissions and material placed on
record, we observed that the Assessing Officer had reopened the
assessment based on the information received from Investigation
Wing wherein the assessee has purchased material from Apex
Associates which is controlled by the accommodation entry
providers and based on the statement recorded from the entry
providers, he came to the conclusion that the assessee has
received accommodation entries from Apex Associates.
Accordingly, he proceeded to make the addition of Rs.8,79,843/-.
Aggrieved, the assessee preferred an appeal before the Ld.
CIT(A) and however, the assessee had not complied with the
9 ITA Nos.16 & 17/Del/2024 Manak Chand Daga vs. ITO
various notices issued by the Ld. CIT(A) and filed the relevant
information as called for. Based on that the Ld. CIT(A) has
dismissed the appeal filed by the assessee on the basis of non
compliance.
After considering the facts on record, in our considered view,
no doubt assessee had purchased material from Apex Associates
which was treated by the Assessing Officer as non genuine. In our
view, the Assessing Officer has accepted the sales declared by the
assessee and only proceeded to disallow purchases from Apex
Associates, therefore, it was held in the decision of various High
Courts, the Assessing Officer cannot proceed to disallow only the
purchases in isolation, therefore, in our considered view
disallowance of 12.5% will serve the purpose of justice to both
parties. Accordingly, we direct the Assessing Officer to disallow the
purchases @ 12.5%. Accordingly, the appeal filed by the assessee
is partly allowed.
With regard to appeal filed by the assessee for Assessment
Year 2014-15, we observed from the record submitted by the
assessee that assessee had made only payment towards the
10 ITA Nos.16 & 17/Del/2024 Manak Chand Daga vs. ITO
purchases of previous year. The Assessing Officer has only
observed that assessee has paid 4,85,000/- to the Apex Associates
from the bank statement and he presumed that assessee has
purchased the material. Since, there is no purchases recorded nor
claimed by the assessee during this year from Apex Associates, the
addition made by the Assessing Officer is unjustified and
accordingly deleted.
In the result, the appeal filed by the assessee for Assessment
Year 2013-14 is partly allowed and Assessment Year 2014-15 is
allowed.
Order pronounced on 14th June, 2024.
Sd/- Sd/- (YOGESH KUMAR U.S.) (S.RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 14/06/2024 Pk/sps Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT
ASSISTANT REGISTRAR ITAT, NEW DELHI
