DCIT 10(2)(2), MUMBAI vs. MINEX METALLURGICAL CO. LTD, MUMBAI

Brief facts of the case are that the assessee company engaged in the business of manufacturing Ferro Alloys and Cored Wires, filed its return of income for the A.Y. 2009-10 declaring the total income of Rs. 15,56,71,558/-. The case was selected for scrutiny and assessment was completed u/s 143(3) of the Act determining the total income of the assessee at Rs. 16,42,04,280/-. Subsequently, information was received from that the investigation wing of the department to the effect that assessee has obtained accommodation entries to from ‘hawala’ dealers for showing purchases of Rs. 1,08,50,022/- in the books of account. Accordingly, the assessment was reopened u/s 147. Notice u/s 148 was issued after recording reasons for reopening of the assessment.

In response to notice u/s 148, the assessee made written submissions and stated that the return filed u/s 139(1) may be treated as the return filed in response to section 148 of the Act. As per the information received, the assessee had obtained accommodation entries from four entities, whose name appeared in the list of hawala dealers identified by the Sales Tax Department. During the course of reassessment proceedings, the assessee was asked to submit ledger account of the parties concerned along with the copies of bill/invoices raised, proof of delivery of goods with complete transportation details/rendering of services, bank statements and other documentary evidence to prove the genuineness of the transaction. The assessee was also asked to produce the parties for verification. In response thereof the assessee submitted that all these purchases are genuine and made in the normal course Assessment Years: 2009-10 & 2010-11 of business and further furnished the copies of ledgers, bills, goods arrival notes and lorry receipts etc. The assessee, however, expressed its inability to produce the parties. In order to verify the genuineness the purposes, the AO issued notices u/s 133(6) asking the parties to submit requisite details in support of the purchases allegedly made by the assessee. However, the notices were received back un-served with the remarks ‘not known’ in two cases and received no reply in respect of remaining two parties. Accordingly, the AO relying on the law laid down by the Hon’ble Supreme Court in Sumati Dayal vs.CIT 214 ITR 801 and CIT vs. Durga Prasad More 82 ITR 540 (SC), made addition of the total amount of bogus purchases to the tune of Rs. 1,08,50,022/-, Gross Profit on bogus purchases @ 4% amounting to Rs. 4,34,000/- and commission paid for arranging bogus purchases @ 1% amounting to Rs. 1,08,500/- and determined the total income of the assessee at Rs. 17,55,96,810/- (rounded off).

Aggrieved by the assessment order, the assessee preferred the first appeal before the Ld. CIT (A) against the assessment order. The Ld. CIT (A) after hearing the assessee deleted the addition of Rs. 1,08,50,022/- holding that since the sales are not under dispute the total amount of purchase cannot be treated as bogus. However, to safeguard in the interest of the revenue, restrict the addition to extent of 2% of alleged of bogus purchases as against 4% made by the AO. Similarly, the Ld. CIT (A) directed the AO to restrict the commission on bogus purchase to 0.25% as against 1% made by the AO. The revenue is in appeal against the impugned order passed by the Ld. CIT(A).

The revenue has raised the following effective grounds of appeal against the impugned order passed by the Ld. CIT (A):-

1. “On the facts and circumstances of the case and in law, the Ld. CIT (A) is erred in deleting the addition of Rs. 1,08,50,022/- Assessment Years: 2009-10 & 2010-11 made on account of disallowance of non-genuine purchases without appreciating the fact that the assessee was not able to substantiate its claim of alleged purchases and also the fact that alleged suppliers were non-existent and were identified as hawala dealers by the official website of the Sale Tax Department,Governmentof Maharashtra, www.mahavat.gov.in.

We have heard the rival submissions and perused the entire record and also gone through the cases relied upon by the authorities below as well as Assessment Years: 2009-10 & 2010-11 referred by the parties before us. The grievance of the revenue is that the Ld. CIT (A) has wrongly deleted addition of total amount of bogus purchases made by the AO. Further, the Ld. CIT(A) has wrongly restricted the addition of 4% made on account of gross profit from bogus purchases to 2% and the addition of 1% made on the commission of bogus purchases to 0.25% made by the AO. We notice that the AO has not rejected the books of account and accepted the sales shown by the assessee. Since, the AO has not rejected the sales shown during the relevant year, the entire amount of purchases cannot be added to the income of the assessee as there cannot be sale without any purchase. If the assessee had not purchased the goods in question from the parties concerned, it might have purchased from the parties other than those mentioned in the books of account without paying VAT and other taxes applicable during the relevant period. Therefore, the AO should have made addition keeping in view the profit element embedded in the purchases in question. But, there is no justification in making addition of the entire amount of bogus purchases determined by the assessee. On the other hand, the Ld CIT(A) has not given any cogent reason as to how 4% addition is justified. The Ld. CIT(A) has not held that the purchases in question are genuine. Since, the purchases have been treated as bogus, the Ld. CIT(A) ought to have determined the addition as per the law laid down by the various High Courts and the various Benches of the Tribunal. Hence, we find merit in the contentions of the Ld. DR.

The Hon’ble Bombay High Court In CIT Vs. Nikunj Eximp Enterprises Pvt. Ltd. 372 ITR 619 (Bom), while upholding the decision of Mumbai Tribunal, has observed that merely because the suppliers had not appeared before the Assessing Officer or the CIT (A) one could not conclude that the purchases were not made by the respondent/assessee. The Hon’ble Gujrat High Court in CIT vs. Simit P. Seth 356 ITR 451(Guj) upheld the decision of the Tribunal and sustained the addition 12.5% of the total bogus purchases holding that only Assessment Years: 2009-10 & 2010-11 profit element embedded in such purchases can be added to income of the assessee. Hence, following the principles of law laid down by the Hon’ble High Courts of Bombay and Gujarat, discussed above, we partly allow the appeal of the revenue and modify the order of the Ld. CIT(A) and direct the AO to make addition @ 12.5% of the total amount of bogus purchases to the income of the assessee. Since, the facts leading to the present appeal are identical to the facts of the assessee’s own appeal pertaining to the assessment year 2009-2010, discussed above except the amount of bogus purchases and the consequential additions made by the authorities below, we do not consider it necessary to reproduce the facts of the case here. In this case also the AO made addition of total amount of bogus purchases and further made addition of 4% on Gross profit and 1% on commission and in appeal the Ld. CIT(A) deleted the addition of total amount of bogus purchases, however, restricted the addition made on account of gross profit from 4% to 2 and on commission for arranging bogus purchases from 1% to 0.25%. Against the said order the revenue has preferred the present appeal.