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Income Tax Appellate Tribunal, “A”, BENCH MUMBAI
Before: SHRI R.C.SHARMA, AM & SHRI RAVISH SOOD, JM
आदेश / O R D E R PER R.C.SHARMA (A.M):
These are the cross appeals filed by assessee and revenue against the order of CIT(A)-28, Mumbai dated 07/01/2014 for A.Y.2007-08 in the matter of order passed u/s.143(3) of the IT Act.
The following grounds have been taken by the assessee:- 1) The learned Commissioner of Income-tax (Appeals) erred in not fully accepting the contention of the appellant that the gross profit 2442/Mum/2014 M/s. K.B. Mehta & Co., addition of Rs.1,81,70,516/- is not at all warranted and erred in retaining the gross profit addition to the extent of 8.06% as against G.P. Rate of 4.12% declared by your appellants. Your appellants submit that the gross profit addition is not at all warranted and the same ought to be deleted. 2) Your appellants further reserve the rights to add, amend or alter the aforesaid grounds of appeal as they may think fit by themselves or by their representatives.
3. The grounds taken by Revenue are as under:- 1. "Whether on the facts and circumstances of the case and in law, the Ld. CIT (A) was justified in deleting the addition on account of low Gross Profit which was worked out after rejection of books of accounts of assesses as a result of survey action on 13.12.2006?" 2. "Whether on the facts and circumstances and in law, the Ld. CIT (A) was justified in deleting the addition made on account of low Gross Profit after books of accounts were rejected as Assessing Officer discovered that the assessee had paid advance tax for first and second installments and showed huge losses during the last quarter of the financial year after survey action had taken place at its premises?" 3. "Whether on the facts and circumstances and in law, the Ld. CIT (A) has erred in taking cognizance of additional evidence which was not produced during the assessment proceedings as laid down in case of Velji Deoraj & , Co V/s CIT 68 ITR 708 (Bom) by Hon. Bombay High Court which clarifies that, ". mere fact that the evidence sought to be produced is vital and important does not provide a substantial cause to allow its admission at the appellate stage, especially when the evidence was available to the party at the initial stage" 4. "Whether on the facts and circumstances'and in law, the Ld, CIT (A) was justified in deleting the disallowance made on account of bogus bills which the assessee partner had admitted during statement at the time of survey proceedings as accommodation entries to the tune of Rs. 11.79 Lacs and the subsequent disallowance @ 20% was to plug the revenue loss?" 5. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary. The Appellant prays that the order of the CIT (A) on the above grounds be set aside and that of the Assessing Officer be restored.
2442/Mum/2014 M/s. K.B. Mehta & Co., 4. Rival contentions have been heard and record perused.
Facts in brief are that the assessee is a firm engaged in the business of trading / export of rough diamonds, cut and polished diamonds, other coloured stores, jewellery etc., Return of income was filed showing total income of Rs.78,75,545/-. During the course of scrutiny assessment AO estimated gross profit at 10.16% as against gross profit of 4.12% shown in the books of accounts. AO has also made addition of 20% of the purchase made from Punjan Impex.
By the impugned order, CIT(A) restricted the addition by estimating G.P. at 8.06% in place of addition of 10.16% made by AO and also deleted the addition of Rs.1,35,950/- made with respect to the purchases from Punjan Impex after having the following observation:- “I have considered the submission of the AR and order of the AO as well as remand report and rejoinder. The following facts emerge as a result:- (1) The assessee is engaged in the business of trading/export of rough diamond, cut & polished diamonds, other coloured stones, jewellery etc. The nature of the business carried out by the assessee during the year is identical to that of immediately preceding 6 to 7 years. (2) A search u/s.132 was carried out in the group on 20,! 0.2005. During search assessments U/S.153A, addition of 4% in G.P. was made, which was also accepted by the assessee and no appeal was filed against the additions so made, The position of G.P.% shown, the addition made and the G.P.% after the addition, is as under: A.Y. % of G.P. as G.P. declared by Addition G.P. per assessee assessee on account rate of G.P. @ 4% assess ed in the assess ment order.
2442/Mum/2014 M/s. K.B. Mehta & Co., 2000-01 5.64% 11,95,66,969 47,82,680 9.64% 2001-02 5.85% 27;43,42,593 1,09,73,704 9.85% 2002-03 4.28% 33,91,22,269 1,35,64,891 8.28% 2003-04 1.79% 28,87,53,920 1,15,50,157 5.79% 2004-05 1.62% 20,82,29,136 83,29,165 5.62% 2005-06 5.45% 20,67,20,089 82,68,804 9.45% 2006-07 3.79% 30,71,17,774 1,22,84,711 7.79% (3) During the year under consideration, a survey U/S.133A was carried out in the case of the assessee, during which Shri. Hiten Mehta stated that the assessee firm has shown purchases of Rs.11,79,755/- from M/s. Pujan Impex during the year. Shri. Deepan S. Mislry & Shri. Hiral Kansara, operators of M/s. Pujan mpex. have accepted that they have never done any real trading in diamonds or ven delivered any diamond and never had any stock at any point of time. Shri. Hlten Mehta stated that the assessee firm made its purchases from different entities, including M/s. Pujan Impex, through brokers only, who delivered the goods and took payments from the assessee. (4) The assertion of the AO in the assessment order that during survey, Shri. Hiten Mehta accepted that the purchases from M/s. Pujan Impex were bogus, is not categorically supported by any of his statements. Although it was accepted by Shri. Hiten Mehta that all purchases were made through brokers and delivery of goods was received and payments made through brokers only. Hence it is not positively established that the purchases from M/s. Pujan Impex were genuine, when seen in the light of the fact that the operators of M/s. Pujan frnpex had admitted to be issuing bogus bills and in the light of earlier statement of Shri. Hiten Mehta recorded u/s. 132(4) dated 21.10.2005, where he had accepted that the bills may not be from the real selling parties. Thus books are not fully reliable/correct (5) During his statement recorded u/s. 132(4) during search proceedings, on 20 & 21.10.2005, Shri, Hiten Mehta in reply to Question 34 & 35 had explained me modus operand! of purchases as under:- Q.34 For most of the questions you arc not in a position to give specific replies in respect of the purchases recorded even though sufficient time was granted and the same could have been verified from your books. Explain this situation.
2442/Mum/2014 M/s. K.B. Mehta & Co., Ans: In this regard I would like to bring to your notice that there are business compulsion in our trade. The real sellers of the diamonds are not in a position to give the bills in their own names. In those circumstances, (here is no other •way but to accept the terms of the. sellers directly or through brokers as and we have to accept the bill of the parties given by them and payments by cheques have also been made favoring the person in whose names the bills have been given. We do not know as lo how they ultimately settle the transaction. Due to these reasons, there may not be a full proof evidence to prove the genuineness of the purchase parties in whose names bills are received and these are the reasons why some of the purchase parties have been reported to be not carrying business activities. Q.35 to view of your answer as above, please explain the modus operand! of making the purchases. Ans: The prospective seller of the diamonds and/or their broker approach us along with the goods and jlangad of the seller. We inspect the goods and also assort the same as per our requirement. Then the price is negotiated with the terms of payment. The goods are delivered to us along with the bill for sale which may no: he of the real selling party ax explained above. Jhangad is returned back at this stage. (6) There is a fall in G.P, rate from the assessed G.P. rate of the six year immediately preceding present year. The average G.P. rate as assessed in Assessment Years 2000-01 to 2006-07, comes to 8.06%. The G.P. addition made were accepted by the assessee and not appealed against. The G.P. rate shown in the present year comes to only 4.12%. It was categorically accepted by the AR during appellate proceedings that the nature of business carried out by the assessee during the year was identical to what was carried out in the last 6 to 7'years. Further no reason was put forth to justify/explain why the G.P.% of this year should be lesser than the assessed G.P.% for last 6 to 7 years, (7) The AO has not brought on record any details of how the three comparable cases considered by him were applicable to the case of the assessee - Whether the product mix or the customer base was similar to that of the assessee. It is also a fact that the G.P. rate of these three entities varies from 6.63% to 10.16% and hence may not give a correct estimate of the assessee's true G.P. rate. No justification is given by the AO for adopting the highest G.P. rate shown amongst the three entities. Looking to all the above, it is held that the action of the AO in adopting the highest G.P. rate of three comparable cases considered, is riot correct and cannot be upheld. A better yardstick to estimate the correct G.P. would be the assessee's own history, where the average G.P, rate assessed and accepted by the assessee for the last 6 to 7 years comes to 8.06%. Since the nature of business carried out during the year is admittedly identical and there is no reason why there should be a fall in 2442/Mum/2014 M/s. K.B. Mehta & Co., G.P, rate this year, it would be fair to estimate the G.P. rate at 8-06% only. The AO is therefore directed to restrict the addition to the difference between G.P. shown and G.P. working out @ 8.06%. The ground of appeal No. 1 is therefore partly allowed. (1) Regarding the disallowance of 20% in relation to purchases shown from M/s. Pujati Impex, it is seen that the modus operandi of all purchases made by the assessee is stated to be the same i.e. to purchase are made through brokers and not directly from the parties themselves. Further the AO has not disallowed the total purchases from M/s. Pujan Impex hut only a part, holding that the purchases though not genuine, but may have been bought from the grey market. Since the modus operandi of all purchases including those from M/s. Punjan Impex, is the same and G.P. addition has already been made and partly sustained in the preceding paragraphs by the undersigned, separate addition in respect of purchases from M/s. Pujan Impex is not called for, as the effect of the alleged price difference of purchases from grey market gets incorporated in the G.P. addition made. The AO is therefore, directed to delete the addition of Rs.1,35,950/-made in this regard. The ground of appeal no. 2 is therefore allowed.
7. Against the above order of CIT(A) both assessee and Revenue are in further appeal before us.
8. We have considered rival contentions and carefully gone through the orders of the authorities below and found from record that there was search and seizer action in the assessee’s business premises in the year 2005. In all the seven years covered by search assessments were framed u/s.153A, wherein addition was made estimating GP at 4%, which was also accepted by the assessee and no appeal was filed. However, during the year under consideration, the AO has estimated profit of 10.16% in place of 4.12% shown by the assessee. The CIT(A) after considering the GP rate determined by the Department itself in the A.Y.2000-01 to 2006-07 upheld the addition to the extent of 8.06% which 2442/Mum/2014 M/s. K.B. Mehta & Co., was average G.P. rate accepted by the department in assessee’s own case during the A.Y.2000-01 to 2006-07. We also found that nature of activity of the assessee is same as it was in the earlier years when the search was conducted and assessment was framed u/s.143(3) r.w.s. 153A. Accordingly there is no infirmity in the order of CITA) for restricting the GP addition to the extent of 8.06% as against GP declared by the assessee at 4.12% and which was estimated by the AO at 10.16%. We also found that addition of Rs.1,35,950/- in respect of purchases made from Punjan Impex was also deleted by the CIT(A) in view of the fact that overall GP addition has been upheld to the extent of 8.06%. The detailed finding so recorded by CIT(A) has not been controverted by learned AR and DR, accordingly we do not find any reason to interfere in the order of CIT(A). 9. In the result, both the appeals of assessee as well as Revenue are dismissed. Order pronounced in the open court on this 23/03/2018 Sd/- Sd/- (RAVISH SOOD) (R.C.SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai; Dated 23/03/2018 Karuna Sr.PS Copy of the Order forwarded to : The Appellant 1. The Respondent. 2. The CIT(A), Mumbai. 3. CIT 4. DR, ITAT, Mumbai 5. BY ORDER, 6. Guard file. सत्यापित प्रतत //True Copy// (Asstt. Registrar) ITAT, Mumbai 2442/Mum/2014 M/s. K.B. Mehta & Co., Initial Date 1. Draft dictated on 17/01/2018 to 22/03/2018 Sr.PS 2. Draft placed before author 23/03/2018 Sr.PS (dictation pad has been enclosed herewith alongwith original file) 3. Draft proposed & placed before JM/AM the second member 4. Draft discussed/approved by JM/AM Second Member.
5. Approved Draft comes to the Sr.PS/ Sr.PS/PS PS 6. Kept for pronouncement on Sr.PS 7. File sent to the Bench Clerk Sr.PS 8. Date on which file goes to the AR 9. Date on which file goes to the Head Clerk.
Date of dispatch of Order.