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Income Tax Appellate Tribunal, MUMBAI BENCH “G” MUMBAI
Before: SHRI D.T. GARASIA & SHRI N.K. PRADHAN
ORDER PER N.K. PRADHAN, A.M. The captioned cross appeals- two by the assessee and the two by the Revenue – are directed against the order of the Commissioner of Income Tax (Appeals)-22, Mumbai and arise out of the assessment completed u/s 143(3) r.w.s. 147 of the Income Tax Act 1961 (the ‘Act’). As common issues are involved, we are proceeding to dispose them off by this consolidated order for the sake of convenience.
M/s Akash Purochem Pvt. Ltd. 3 503, 180 & 181/Mum/2 Assessment Year: 2009-10 & ITA No. 181/MUM/2016 Assessment Year: 2009-10 2. Facts being similar, we begin with AY 2009-10. The 1st issue raised by the assessee is that the reopening of assessment by the Assessing Officer (AO) u/s 147 is bad in law.
Briefly stated, the facts of the case are that the assessee filed its return of income for the AY 2009-10 on 29.09.2009 declaring total income at Rs.16,35,820/-. The AO made the assessment u/s 143(3) on 29.12.2011 assessing the total income at Rs.16,35,820/-. Then the AO reopened the assessment by issuing notice u/s 148 to the assessee on 04.01.2013. As a result of information received from the Sales Tax Department, Government of Maharashtra, the Revenue carried out a survey u/s 133A on 11.12.2012 in the business premises of the assessee-company and their factory at Taloja, District Raigadh. During the course of survey, it was found that the Sales Tax Department had impounded non-excisable bills. The AO had also received information from the Sales Tax Department that it had made bogus purchase amounting to Rs.6,03,04,458/- during the previous year relevant to the assessment year 2009-10.
M/s Akash Purochem Pvt. Ltd. 4 503, 180 & 181/Mum/2016 The above was the basis for reopening the assessment by the AO by issuing notice u/s 148. In appeal, the Ld. CIT(A) has dismissed the ground raised by the assessee on the reason that (i) the AO had received information from the Sales Tax Department, Government of Maharashtra, that the assessee had made purchases from certain parties who were engaged in the business of issuing accommodation bills only without actually supplying the goods, (ii) there was tangible material available with the AO to form the believe that income chargeable to tax had escaped assessment and (iii) the assessee’s request to provide the reasons recorded for reopening assessment was duly complied with by the AO.
4. Before us, the Ld. counsel of the assessee submits that there was no escapement of income which would call for the reopening of assessment u/s 147. On the other hand, the Ld. DR relies on the order of the Ld. CIT(A) confirming the reopening made by the AO.
5. We have heard the rival submissions and perused the relevant materials on record. We find that the AO has issued the notice u/s 148 on 04.01.2013 for the AY 2009-10 which is within the span of four years. There was tangible material before the AO in the shape of information from the Sales Tax Department, Government of Maharashtra, that the assessee had made bogus purchases from certain parties who were engaged in the activity of issuing accommodation bills only without actually supplying the goods.
M/s Akash Purochem Pvt. Ltd. 5 503, 180 & 181/Mum/2016 Now we come to the reasons for our decision. At this juncture we come across a catena of precedents on the instant issue. In order to avoid prolixity, we refer below to only a few decisions. Assessee must disclose all primary facts fully and truly. The words ‘omission or failure to disclose fully and truly all material facts necessary for his assessment for that year’ postulate a duty on every assessee to disclose fully and truly all material facts necessary for his assessment. What facts are material and necessary for assessment will differ from case to case. There can be no doubt that the duty of disclosing all the primary facts relevant to the decision on the question before the AO lies on the assessee as held in Calcutta Discount Co. Ltd. vs. ITO (1961) 41 ITR 191, 200 (SC),Malegaon Electricity Co. P. Ltd. vs. CIT (1970) 78 ITR 466 (SC), CIT vs. Bhanji Lavji (1971) 79 ITR 582 (SC), CIT vs. Burlop Dealers Ltd. (1971) 79 ITR 609 (SC),ITO vs. Lakhmani Mewal Das (1976) 103 ITR 437, 445 (SC),Associated Stone Industries (Kotah) Ltd. vs. CIT (1997) 224 ITR 560, 572 (SC). Every disclosure is not and cannot be treated to be a true and full disclosure. A disclosure may be a false one or true one. It may be a full disclosure or it may not be. A partial disclosure may very often be a misleading one. In Shri Krishna (P.) Ltd. vs. ITO [1996] 87 Taxman 315 (SC) it has been held that what is required is a full and true disclosure of all material facts necessary for making assessment for that year. Where transaction itself, on basis of subsequent information, is found to be bogus transaction, mere disclosure of that transaction at the time of original assessment proceedings cannot be said to be a M/s Akash Purochem Pvt. Ltd. 6 503, 180 & 181/Mum/2016 disclosure of the ‘true’ and ‘full’ facts and the ITO would have jurisdiction to reopen concluded assessment in such a case as held in Phool Chand Bajrang Lal vs. ITO [1993] 203 ITR 456 (SC). In a recent decision the Hon’ble Gujarat High Court in Peass Industrial Engineers (P.) Ltd. vs. DCIT (2016) 73 taxmann.com 185 (Guj) has held that: “Where after scrutiny assessment, Assessing Officer received information from investigation wing that two well-known entry operators of country provided bogus entries to various beneficiaries, and assessee was one of such beneficiary, Assessing Officer was justified in reopening assessment.” In a similar case involving beneficiary of accommodation entries, the Hon’ble Bombay High Court in the case of Om Vinyls P. Ltd. vs. ITO [Writ Petition (L) No. 3114 of 2014] has held that: “The information received by the Assessing Officer on which basis the impugned notice is issued is specific. There is no ambiguity in the information which would require investigation. The information of accommodation entries has been given by a participant and this is reason enough to believe that income chargeable to tax has escaped assessment. At this stage, the Assessing Officer is not required to conclusively prove that the reasons in support of the impugned notice establish that the petitioner has taken accommodation entries. This is a matter which would be subject of further investigation during the reassessment proceedings. At that stage it would be open to the petitioner to raise all permissible defences and also to insist on cross-examination of the persons who have made a statement implicating the petitioner in having participated in taking accommodation entries. However these are subject matters of investigation into adjudicatory facts and this Court would not in the present facts at the very threshold prevent the M/s Akash Purochem Pvt. Ltd. 7 503, 180 & 181/Mum/2016 Assessing Officer from making further enquiry into a prima facie view which has been formed in the reasons indicated in support of the impugned notice ” 5.1 After examining the present factual matrix on the anvil of the aforesaid enunciation of law, we dismiss the 1st issue raised by the assessee against the reopening done by the AO u/s 148 of the Act.
The 2nd issue raised by the assessee in this appeal is that the Ld. CIT(A) erred in not appreciating that the AO had not given the assessee an opportunity to cross-examine the parties who had stated before the Sales Tax Authorities that they had only given accommodation entries. The 3rd issue raised by the assessee is that the Ld. CIT(A) erred on facts and in law in estimating gross profit @ 12.5% without any basis.
At this juncture we turn to the grounds of appeal
filed by the Revenue. The issue raised by the Revenue is that the Ld. CIT(A) erred in restricting the addition of Rs.6,03,04,458/- made on account of bogus/unproved purchases to the extent of only the profit of 12.5% of the said purchases relying on the decision of the Gujarat High Court in CIT v. Simit P. Seth 356 ITR 451, which is distinguishable on facts.
8. As the issues are interlinked, we discuss below the 2nd and 3rd issue raised by the assessee along with the issues raised by the Revenue. In a nutshell, the facts are that the AO received information from Sales Tax Department, Government of Maharashtra, that the assessee had made bogus purchases of Rs.6,03,04,458/- during the impugned assessment year from the following parties:
M/s Akash Purochem Pvt. Ltd. 8 503, 180 & 181/Mum/2016 Beneficiary Beneficiary Hawala Name FY Amount Name PAN AkashPurochem AACCA9261A GHANTAKARAN TRADING 2008-09 1,96,91,543 Pvt. Ltd. PVT. LTD. --do-- AACCA9261A ADARSHA TRADING CO. LTD. 2008-09 15,69,526 --do-- AACCA9261A RIYA TRADING CO. P. 2008 -09 57,01,795 LTD. --do-- AACCA9261A HERMITAGE TRADING CO R 2008 -09 1,28,42,305 LTD. --do-- AACCA9261A ACCURE IMPEX R LTD. 2008 -09 44,39,386 --do-- AACCA9261A I D TRADING PVT. LTD. 2008 -09 34,14,602 --do-- AACCA9261A BLUE NILE ENTERPRISES 2008 -09 3,40,070 --do-- AACCA 9261A SAICAN MERCANTILEP. LTD. 2008 -09 6,99,224 --do-- AACCA9261A D K ENTERPRISE 2008 -09 3,27,488 --do-- AACCA 9251A V1TRAG TRADERS P LTD. 2008 -09 55,49,378 --do-- AACCA9261A SIDDHIVINAYAK 2008 -09 2,70,816 CORPORATION --do-- AACCA 9261A BLUE MOON 2008 -09 6,32,351 TRADING P. LTD. --do-- AACCA9261A K. KUNDAN CARGO TRADING 2008 -09 46,37,474 --do-- AACCA 9261A BALAJI SALES CORPN 2008 -09 1,88,500 TOTAL 6,03,04,458 8.1 During the course of reassessment proceedings, the AO issued notice u/s 133(6) to the above 14 parties which were returned undelivered by the postal authorities. This fact was brought to the notice of the assessee by the AO. In reply, the assessee submitted before the AO that the name and address of the purchase parties were the same as provided earlier in the purchase bills. The AO has mentioned at para 5.3 of the assessment order dated 18.11.2015 that the assessee failed to cross-examine the party and produce any kind of documentary M/s Akash Purochem Pvt. Ltd. 9 503, 180 & 181/Mum/2016 evidence. Therefore, the AO made an addition of Rs.6,03,04,458/- u/s 69C of the Act.
Aggrieved by the order of the AO, the assessee filed an appeal before the Ld. CIT(A). We find that the Ld. CIT(A) followed the judgment of the in Simit P. Sheth (supra) and confirmed the disallowance on account of bogus purchases to the extent of 12.5% only.
Before us, the Ld. counsel of the assessee submits that no opportunity to cross-examine the parties, who had stated before the Sales Tax Authorities that they had given only accommodation entries, was given by the AO to the assessee. Reliance was placed by him on the decision of the Hon’ble Supreme Court in M/s Andaman Timber Industries v. Commissioner of Central Excise (CA No. 4228 of 2006).
Per contra, the Ld. DR supports the order passed by the AO. It is stated by him that there is no basis to restrict the disallowance to 12.5% of the bogus purchases as done by the Ld. CIT(A) by relying on the decision in Simit P. Sheth (supra).
We have heard the rival submissions and perused the relevant materials on record. The reasons for our decision are given below. We find that the notices u/s 133(6) sent by the AO, during the course of reassessment proceedings, were returned back by the postal authorities as undelivered. Therefore, the AO was not in a position to give the assessee an opportunity to cross-examine the above parties. In such a scenario, the case of the assessee is distinguishable from the M/s Akash Purochem Pvt. Ltd. 10 503, 180 & 181/Mum/2016 decision in M/s Andaman Timber Industries (supra) relied on by the Ld. counsel of the assessee. A proper hearing must always include a fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudicial to their view. Cross-examination is allowed by procedural rules and evidently also by the rules of natural justice. Any witness who has been sworn on behalf of any party is liable to be cross- examined on behalf of the other party to the proceedings. The Hon'ble Supreme Court in State of Kerala vs. K.T. Shaduli Grocery Dealer AIR 1977 SC 1627, recognised the importance of oral evidence by holding that the opportunity to prove the correctness or completeness of the return necessarily carry with it the right to examine witnesses and that includes equally the right to cross-examine witnesses. In ITO vs. M. Pirai Choodi (2012) 20 taxmann.com 733 (SC), the Hon'ble Supreme Court has held that “Order of assessment passed without granting an opportunity to assessee to cross-examine, should not have been set aside by High Court; at most, High Court should have directed Assessing Officer to grant an opportunity to assessee to cross- examine concerned witness.” In a similar case of a beneficiary of accommodation entries, their Lordships of the Hon’ble Bombay High Court in the case of Om Vinyls P. Ltd. (supra) have observed that it would be open to the assessee to raise all permissible defences and also to insist on cross-examination of the M/s Akash Purochem Pvt. Ltd. 11 ITA Nos. 505, 503, 180 & 181/Mum/2016 persons who have made a statement implicating the assessee in having participated in taking accommodation entries. 12.1 In view of the above position of law, we set aside the order of the Ld. CIT(A) and restore the matter to the file of the AO to make a fresh assessment after examining the concerned parties and giving opportunity of cross-examination to the assessee. We direct the assessee to file the relevant documents/evidence before the AO. Needless to say, the AO would give reasonable opportunity of being heard to the assessee before finalizing the assessment order. As we have restored the matter to the file of the AO, we are not adverting to the case-laws relied on by the Ld. counsels.
Thus the 2nd and 3rd issue raised by the assessee and the issue raised by the Revenue in its grounds of appeal
are allowed for statistical purposes.
14. Facts being identical, our decision in AY 2009-10 applies mutatis mutandis to AY 2010-11.