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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Before: SHRI SHAMIM YAHYA
O R D E R Per Shamim Yahya, A. M.: This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-10, Mumbai (‘CIT(A)’ for short) dated 20.01.2017 and pertains to the assessment year (A.Y.) 2011-12. 2. The grounds of appeal read as under:
2 Reliant Pipes & Tubes Pvt. Ltd. vs. ITO 1. On the facts and in the circumstances of the case and in law the learned Commissioner of Income Tax (Appeal)-10 erred in confirming addition of Rs.15,05,155/- out of Rs.28,94,528/- on estimated profit element on treating the genuine purchases of Rs.2,31,56,224/- as non-genuine purchases as the said purchases made considered as bogus from the impugned 10 parties of which information has been received from Sales Tax Department and the said information has been forwarded by the DGIT (Inv.),Wing, Mumbai to the Assessing Officer.
Provisions of the Act ought to have been properly construed and regard being had to facts of the case no such additions to be made. Reasons assigned by him are wrong and insufficient to justify the additions.
The order made under section u/s 143(3) r.w.s. 147 of the Act by the learned Assessing Officer is bad-in-law, ultra virus and without appreciating the facts, submission made and law in their proper perspective and is liable to be annulled.
In this case, the information has been received from the DGIT (Inv.), Mumbai which was in turn received by the office of the DGIT(lnv) from the Sales Tax Authorities that the assessee has received accommodation entries from the following 10 hawala parties- SR.NO. NAME OF THE PARTY PAN NO. AMOUNT 1 ASIAN STEEL AWZPS2908L 2,399,983 2 CHANCHAL TUBE CORPORATION AVFPS0644A 2,950,277 3 DINESH INDUSTRIAL CORPORATION AQOPG7962R 1,019,512 4 GANESH TRADING CO. AQWPM5572F 2,219,880 5 P.M. STEEL ALLOYS AACPB2206M 1,510,080 6 R K METAL ACHPK7189D 3,276,226 7 SANDOZ STEEL AKPPM1270K 2,858,960 3 Reliant Pipes & Tubes Pvt. Ltd. vs. ITO 8 SIDDHIVINAYAK STEEL AGVPS7889Q 2,825,219 9 SURAJ ENTERPRISES/ TUBE ARDPP8061A 3,845,738 10 UJWAL ENTERPRISES AIEPJ7045A 250,349 During the course of extensive investigations carried out by the Sales Tax Authorities, it was revealed that certain traders have only issued invoices without the sale of goods for certain commission. To this effect, they have given sworn affidavits to the Sales Tax Authorities. Such an information was passed on to the Assessing Officer through the DGIT(Inv), Mumbai. To verify the genuineness of purchases, notices u/s 133(6) were sent to the above parties who claimed to have supplied goods to the assessee company. All the notices have been returned un-served by the postal authorities. The assessee was asked to produce the parties for verification for which it has expressed its inability to produce them before the Assessing Officer. Therefore, the Assessing Officer concluded that the assessee has obtained bogus purchase bills to reduce profits by inflating purchases. By following the decision of Hon'ble High Court of Gujrat in the case of Simit P Seth, 2013 (356 ITR 451), the Assessing Officer has disallowed 12.5% of bogus purchase of Rs.2,31,56,224/-which works out to Rs.28,94,5287- as unexplained income.
Against the above order, the assessee appealed before the ld. CIT(A) who restricted the addition to 6.5% of the bogus purchase.
4 Reliant Pipes & Tubes Pvt. Ltd. vs. ITO 5. Against the above order of ld. CIT(A), the assessee is in appeal before the ITAT.
I have heard the ld. Departmental Representative and perused the records. This case has been fixed for hearing earlier also and was adjourned at the request of the assessee. Today also despite notice none appeared on behalf of the assessee. Hence, the appeal is being disposed of by hearing the ld. Departmental Representative and perusing the records.
As regards the ground challenging the reopening of the assessment, the ld. CIT(A) has noted that the assessee has not pressed that ground. Nevertheless, on a careful consideration, I note that in this case information was received by the Assessing Officer from DGIT Investigation (Mumbai) there are some parties who are engaged in the hawala transactions and are also involved in issuing bogus purchase bills for sale of material without delivery of goods, which information was based on information received by Revenue from Maharashtra Sales Tax Authority. Information was received that the assessee was beneficiary of hawala accommodation entries from entry providers by way of bogus purchase. The accommodation entry provider has deposed and admitted before the Maharashtra Sales Tax Authority vide statement/ affidavit that they were engaged in providing bogus accommodation entries wherein bogus sale bills were issued without delivery of goods, in consideration for commission. These, accommodation entry providers, on receipt of cheques from 5 Reliant Pipes & Tubes Pvt. Ltd. vs. ITO parties against bogus bills for sale of material, later on withdrew cash from their bank accounts, which was returned to beneficiaries of bogus bills after deduction of their agreed commission. The Assessee was stated to be one of the beneficiaries of these bogus entries of sale of material from hawala entry operators in favour of the assessee wherein the assessee made alleged bogus purchases through these bogus bills issued by hawala entry providers in favour of the assessee. These dealers were surveyed by the Sales Tax Investigation Department whereby the directors of these dealers have admitted in a deposition vide statements/affidavit made before the Sales Tax Department that they were involved in. issuing bogus purchase bills without delivery of any material. There is a list of such parties wherein the assessee is stated to be beneficiary of bogus purchase bills.
From the above, I find that tangible and cogent incriminating material were received by the AO which clearly showed that the assessee was beneficiary of bogus purchase entries from bogus entry providers which formed the reason to believe by the AO that income has escaped assessment. The information so received by the AO has live link with reason to believe that income has escaped assessment. On these incriminating tangible material information, assessment was reopened. At this stage there has to be prima facie belief based on some tangible and material information about escapement of income and the same is not required to be proved to the guilt. In this regard, I refer to the decision of the Hon'ble Apex Court in the case of CIT(A) Vs. Rajesh Jhaveri Stock Brokers P. Ltd, 291 ITR 500:-
6 Reliant Pipes & Tubes Pvt. Ltd. vs. ITO "Section 147 authorises and permits the Assessing Officer to assess or reassess income chargeable to lax if he has reason to believe that income for any assessment year has escaped assessment. The word "reason" in the phrase "reason to believe" would mean cause or justification. If the AO has cause or justification to know or suppose (hat income had escaped assessment, it can be said to have reason to believe that an income had escaped assessment. The expression cannot be read to mean that the AO should have finally ascertained the fact by legal statute with solicitude for the public exchequer with an inbuilt idea of fairness to taxpayers. As observed by the Supreme Court in Central Provinces Managnese Ore Co, ltd. v. ITO(1991) 191 ITR 662, for initiation of action under section 147(a) (as the provision stood at the relevant time) fulfillment of the two requisite conditions in that regard is essential. At that stage, the final outcome of the proceeding is not relevant. In other words, at the initiation stage, what is required is "reason to believe", but not the established fact of escapement of income. At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could have formed a requisite belief Whether the materials would conclusively prove the escapement is not the concern at that stage. This is so because the formation of belief by the AO is within the realm of subjective satisfaction ITO v. Selected Dalurband Coal Co, (P.) Ltd. (1996) 217 ITR 597 (Supreme Court): Raymond Woollen Mills Ltd. v. ITO (1999) 236 ITR 34 (Supreme Court).”
The above discussion and precedent from Apex Court fully justify the validity of reopening in this case. Since, the issue has been decided on the basis of the Hon’ble Apex Court decision, the other case laws referred by assessee are not supporting the assessee’s case.
Further, I find that credible and cogent information was received in this case by the Assessing Officer that certain accommodation entry provider / bogus suppliers 7 Reliant Pipes & Tubes Pvt. Ltd. vs. ITO were being used by certain parties to obtain bogus bills. Assessee was found to have taken accommodation entry / bogus purchase bills during the concerned assessment year from different parties. Based upon the information assessment was reopened. The credibility of information relating to reopening has already been upheld by the learned CIT(A) as well as by us. In such factual scenario the Assessing Officer has made the necessary enquiry. The issue of notice to all the parties have returned unserved.
Assessee has not been able to provide any confirmation from any of the party.
Assessee has also not been able to produce any of the parties. Necessary evidence relating to transportation of the goods was also not on record. In this factual scenario it is amply clear that assessee has obtained bogus purchase bills. Mere preparation of documents for purchases cannot controvert overwhelming evidence that the provider of these bills are bogus and non-existent.
The Sales Tax Department in its enquiry have found that parties to be providing bogus accommodation entries. The Assessing Officer also issued notices to these parties at the addresses provided by the assessee. All these notices have returned unserved. Assessee has not been able to produce any of the parties. The assessing officer has noted that there is no cogent evidence of the provision of goods. Neither the assessee has been able to produce any confirmation from these parties. In such circumstances, there is no doubt that these parties are non-existent. I find it further strange that assessee wants the Revenue to produce assessee’s own venders, whom the 8 Reliant Pipes & Tubes Pvt. Ltd. vs. ITO assessee could not produce. The purchase bills from these non-existent / bogus parties cannot be taken as cogent evidence of purchases. In light of the overwhelming evidence the revenue authorities cannot put upon blinkers and accept these purchases as genuine. This proposition is duly supported by Hon’ble Apex Court decision in the case of Sumati Dayal 214 ITR 801 and Durga Prasad More 82 ITR 540. In the present case the assessee wants that the unassailable fact that the suppliers are non- existent and thus bogus should be ignored and only the documents being produced should be considered. This proposition is totally unsustainable in light of above Apex Court decisions.
I further find that Hon’ble jurisdictional High Court in the case of Nikunj Enterprises has upheld 100% allowance for the purchases when the sales have not been doubted. However, the facts of that case were different. Furthermore, the sales in that case were basically to Government Departments. Hence the ratio from this decision is not applicable on the facts of the case.
In these circumstances, the ld. Departmental Representative has referred to Hon’ble Gujarat High Court decision in the case of Apex Appeal No. 240 of 2003 in the case of N K Industries vs Dy CIT, order dated 20.06.2016, wherein hundred percent of the bogus purchases was held to be added in the hands of the assessee and tribunals restriction of the addition to 25% of the bogus purchases was set aside. It was expounded that when purchase bills have been found to be bogus 100% 9 Reliant Pipes & Tubes Pvt. Ltd. vs. ITO disallowance was required. The special leave petition against this order along with others has been dismissed by the Hon’ble Apex Court vide order dated 16.1.2017.
I further note that Hon’ble Rajasthan High Court in the case of CIT Jaipur v. M/s. Shruti Gems in vide order dated 23.05.2017 has inter alia referred to the decision of Hon’ble Rajasthan High Court in ITA No.234/2008 in case of CIT Jaipur v. Aditya Gems for the following decision:- “Considering the law declared by the Supreme Court in the case of Vijay Proteins Ltd. Vs. Commissioner of Income Tax, Special Leave to Appeal (C) No.8956/2015 decided on 06.04.2015 by the Supreme Court has dismissed the SLP confined the order dated 09.12.2014 passed by the Gujarat High Court and other decisions of the High Court of Gujarat in the case of Sanjay Oilcake Industries Vs. Commissioner of Income Tax (2009) 316 ITR 274 (Guj) and N.K. Industries Ltd. Vs. Dy. C.I.T, Tax Appeal No.240/2003 decided on 20.06.2016, the parties are bound by the principle of law pronounced in the aforesaid three judgments.” 15. Although, the discussion hereinabove calls for a higher disallowance. I note that this is not an appeal by the Revenue. Hence it will not be appropriate to take away the relief already granted by the ld. CIT(A) to the assessee. Hence, I confirm the order of the learned CIT(A).