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Income Tax Appellate Tribunal, MUMBAI BENCH “A”, MUMBAI
Before: SHRI D.T. GARASIA & SHRI MANOJ KUMAR AGGARWAL
Per D.T. GARASIA, Judicial Member:
The present appeal has been preferred by the Revenue against the order dated 23.01.2017 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2009-10.
The following grounds are raised:
"1. On the facts and in the circumstances of the case in law, the Ld. CIT(A) has erred in deciding the appeal in favour of assessee without appreciating the facts that the assessee was not able to substantiate his claim even after giving ample opportunity and also the fact those 2 Shri Dhananjay G. Mishra traders were treated as Hawala dealer by the official website of the Sales Tax department, Govt. of Maharashtra.
2. On the facts and in the circumstances of the case in law, the Ld. CIT(A) has erred in giving full relief to the assesses whereas in similar issues in the cases of CIT Vs. Bholanath Poly Fab Pvt. Ltd. 355 ITR 290 (Guj.) CIT Vs. Simit Seth 356 ITR 451 (Guj.), the Tribunal have decided that though the purchase might have been made form bogus parties, the purchases themselves were not bogus and Hon'ble Tribunal was of the opinion that not the entire amount, but the profit margin embedded in such purchase amount would be subjected to tax.
3. On the facts and in the circumstances of the case in law, the Ld. CIT(A) has failed to appreciate the fact that the Hawala dealers have admitted on oath before the Sales Tax Authorities that they have not sold any material to anybody."
The short facts of the case are that the return of income was filed by the assessee on 30/09/2009 declaring total income of Rs.79,76,375/-. The case was selected for scrutiny on the basis of information received from Maharashtra Sales Tax Department that the assessee has entered into bogus purchase transactions with 13 parties totaling to Rs.2,06,78,079/-. After recording reasons, the assessment was reopened by issue of notice u/s 148. During reassessment proceedings, the Assessing Officer (hereinafter referred to as the AO) issued notice u/s 142(1) to the assessee requiring him to produce details of purchases made from these 13 parties as also details such as evidence for delivery of goods, delivery challans, transport/lorry receipts, stock register, proof of payment etc. The assessee is alleged to have made bogus purchases from 13 parties viz. Shree Sai Trading Co. Rs.13,89,232/-, Rajlaxmi Metal & Alloys Rs.10,49,999/- V3 Enterprise Rs.24,50,130/-, Deep Enterprises Rs.33,18,054/-, Nirmal Trading Co. 9,29,956/-, M/s. Prayush
3 Shri Dhananjay G. Mishra Steelage Rs.24,60,152/- Niidhish Impex P. Ltd. Rs.24,44,624/-, Vatika Trading Co. Rs.31,16,910/- Skand Industries Rs.15,49,891/- M/s. Sanyo Sales Corporation Rs.11,50,011/-, Rohit Enterprises Rs.17,94,978/-, Sumzo Traders P. Ltd. Rs.34,98,670/- and Toral Enterprises Rs.15,25,472/- totaling to Rs.2,60,78,079/-. The assessee asked to produce details of purchases made from these 13 parties as also details such as evidence for delivery of goods, proof of payment etc. The assessee produce all the details called for. During the course of assessment proceedings the assessee explained the business situation under which traders like him are forced to deal with brokers to meet the demands of the customers. The AO, therefore, disallowed 12.5% of Rs.2,06,78,079/- which resulted into an addition of Rs.33,34,760/-.
Matter carried to the Ld. CIT(A) and the Ld. CIT(A) has allowed the appeal by observing as under:
“5.1 Ground no 1: The appellant is alleged to have made bogus purchases from 13 parties viz. Shree Sai Trading Co. Rs. 13,89,232/-, Rajlaxmi Metal & Alloys Rs.10,49,999/- V3 Enterpriese Rs.24,50,130, Deep Enterprises Rs.33,18,054/-, Nirmal Trading Co. 9,29,956/-, M/s. Prayush Steelage Rs.24,60,152, Niddhish Impex P. Ltd. Rs.24,44,624/-, Vatika Trading Co. Rs. 31,16.910, Skand Industries Rs.15,49.891/- M/s. Sanyo Sales Corporation Rs.11,50,011/-, Rohit Enterprises Rs.17,94,978/-, Sumzo Traders P. Ltd. Rs.34,98,670/- and Toral Enterprises Rs.15,25,472/- totaling to Rs.2,60,78,079/-. During the appellate proceedings the appellant made written submission and also produce the copy of order pronounced by Hon'ble ITAT, “D" Bench, Mumbai in appellant's own case for AY. 2010-11 Hon'ble ITAT "D" Bench, Mumbai. From the order I found Hon'ble ITAT deleted the addition on account of bogus purchase made by the A.O. in A.Y. 2010-I1, The relevant part of the decision is reproduced as under: “We have considered the rival contentions of the parties and perused the material available on record. The A.0. while making
Sr. Name of the party Amount so called No. purchases made (Rs.) I V3 Enter prises 9,48,886 2 Shri Sai Trading Co. 9,33,814 3 Rohit Enterpirses (material) 9,3 6,287 4 Niddhish Impex Pvt. Ltd. 9,42,568 5 Deep Enterprises 9,36,062 6 Colourshop Trading Co. Pvt. 25,62,560 72,60,177 Total The AO issued notice to all the parties out of which the notices were served upon two parties, two notice retuned back un-served and the remaining two on which notice were served, no reply was received. The AO further observed that assessee failed to produce the parties for verification, the genuineness of the expenses were not proved and treated the entire expenditure as unexplained expenditure from these six parties. The AO not discussed in its order the contention of the assessee, the evidence of purchases, delivery of goods and the payment made through Banking transaction as well as the stock register. Before the CIT(A), the similar contention was raised by the assessee. Ld. CIT(A) reproduced the submission of assessee in its order. After considering the contentions of the assessee, the AO concluded the assessee gave valid explanation with substantiating evidence in respect of cost incurred towards the purchases during the course of business. It was further concluded that the assessee furnished Bank statement, challan and copy of Inward receipt and deleted the entire addition. The coordinate bench of this Tribunal Hiralal Chunnilal Jain vs. ITO-ITA No.4547/Mum/2014 dt. 01.01.2006 relying upon the decision of Hon'ble jurisdictional High Court in Nikunj Eximp Enterprises (P) Ltd. (supra), Kalathil, Tristar Jewellery held as under: 'In the case of Nikunj Eximp (supra) the Hon'ble Bombay High Court has held if safes were not doubted by the AO and copies of bank statement showing entries of payment through account payee cheques to the suppliers, copies of invoice for purchases and a stock statement, i.e. stock reconciliation statement are filed purchased could not be rejected" Further the Co-ordinate Bench of ITAT, Mumbai in a case of ACIT vs. Tarla R. Shah- dt. 02.02.2016, relying upon the decision of Shri Ramesh Kumar & Co. (supra) vs. ACIT in ITA No. 2959/M/2014 and Rajeev G. Kalathin in ITA No.6727/m/2013 held as under:
"5.1 Now the issue before us is whether the aforesaid case of the assessee is covered in favour of the assessee by the various decisions cited by the Id. Counsel. In the case of 1TA No.6727/Mum/2012 (Ay 2009-10) dated 20.08.2014 we find that the similar addition was made on the basis of information available on website of Sales Tax Department. Government of “2.4 We have heard the rival submission and perused the material before us. We find that the AO had made the addition as one of the supplier was declared a hawala dealer by the VAT Department. We agree that it was a good starting point for making further investigation and take it to logical end. But, he left the job at initial point itself. Suspicion of highest degree cannot take place of evidence. He could have called for the details of the bank account of the suppliers to find out as whether there was any immediate cash withdrawal from their account. We find that no such exercise was done. Transportation of good to the site is one of the deciding factor to be considered for resolving the issue. The FAA has given a finding of fact that part of the goods received by the assessee was forming part of closing stock. As far as the case of Western Extrusion Industries. www.taxguru.in ITA/6727/Mum/2012/RGK 4(supra) is concerned, we find that in the matter cash was immediately withdrawn by the supplier and there was no evidence of movement of goods. But, in the case before us, there is nothing, in the order of the AO, about the cash trail. Secondly, proof of movement of goods is not a doubt. Therefore considering the peculiar facts and circumstances of the case under appeal, we are of the opinion that the order of the FAA does not suffer from any legal infirmity and there are not sufficient evidence on file to endorse the view taken by the AO. So, confirming the order of the FAA, we decide ground no. 1 against the AO." Thus, keeping in view the decision of the coordinate bench of this tribunal, where the AO has not disputed the use of material nor disputed the stock of the assessee, hence we do not find any illegality or infirmity in the order of Ld CIT(A). In the result, appeal filed by the Revenue is dismissed.
In view of this, the matter has attained finality now in favor of the appellant. Respectfully following the decision of the Hon'ble ITAT in the appellant's own case for A.Y. 2010-11, I delete the disallowance of Rs.33,34,760/- made by the A.O. on account of bogus purchase for AY. 2009-10. The appeal is allowed.
In the result, the appeal is allowed.”
6. The Ld. D.R. submitted that in this case the assessee has purchased from 13 parties and assessee was asked to produce the purchase bill, alleged bogus purchase payment detail, corresponding sales details and quantity detail of the stock. Assessee produced all
6 Shri Dhananjay G. Mishra the details. Accordingly, books of accounts are tested and verified. But some of the parties are not available for cross verification. Therefore, he has disallowed 12.5% of the total transaction of the above parties. Therefore, Ld. CIT(A) has wrongly followed the order of ITAT for A.Y. 2010-11.
On the other hand, the Ld. A.R. submitted that in assessee’s own case for A.Y. 2010-11 wherein six parties were there and all were accepted as genuine one. The Ld. A.R. submitted that the AO accepted that maintenance of books of accounts are said to be completed and acceptable. Therefore, still he holds that parties are bogus.
We find that the assessee purchased from Shree Sai Trading Co. of Rs.13,89,232/-, from V3 Enterprise of Rs.24,50,130/-, from Deep Enterprises of Rs.33,18,054/- and from Niidhish Impex P. Ltd. of Rs.24,44,624/- and these were same parties from whom purchases were made by assessee in A.Y. 2010-11. Therefore, no addition can be made in respect of these parties as Tribunal has already deleted addition thereof in A.Y. 2010-11. We find that in respect of other parties, the AO during the assessment proceeding asked the assessee to produce the purchase bill, alleged bogus purchase payment detail, corresponding sales details and quantity detail of the stock. We find from the assessment order that AO, without making any independent enquiry, has made addition of 12.5% on total transaction, which was not fair. We find that in the similar situation, it has been decided by 7 Shri Dhananjay G. Mishra ITAT in the case of Ramesh Kumar & Co vs. ACIT in ITA No.2959/M/2014 and Rajeev G. Kalathin in ITA No.6727/M/2013 wherein it is held as under: "5.1 Now the issue before us is whether the aforesaid case of the assessee is covered in favour of the assessee by the various decisions cited by the Id. Counsel. In the case of 1TA No.6727/Mum/2012 (Ay 2009-10) dated 20.08.2014 we find that the similar addition was made on the basis of information available on website of Sales Tax Department. Government of Maharashtra, which was deleted by the Tribunal. The relevant para 2.4 is extracted as below.
“2.4 We have heard the rival submission and perused the material before us. We find that the AO had made the addition as one of the supplier was declared a hawala dealer by the VAT Department. We agree that it was a good starting point for making further investigation and take it to logical end. But, he left the job at initial point itself. Suspicion of highest degree cannot take place of evidence. He could have called for the details of the bank account of the suppliers to find out as whether there was any immediate cash withdrawal from their account. We find that no such exercise was done. Transportation of good to the site is one of the deciding factor to be considered for resolving the issue. The FAA has given a finding of fact that part of the goods received by the assessee was forming part of closing stock. As far as the case of Western Extrusion Industries. www.taxguru.in ITA/6727/Mum/2012/RGK 4(supra) is concerned, we find that in the matter cash was immediately withdrawn by the supplier and there was no evidence of movement of goods. But, in the case before us, there is nothing, in the order of the AO, about the cash trail. Secondly, proof of movement of goods is not a doubt. Therefore considering the peculiar facts and circumstances of the case under appeal, we are of the opinion that the order of the FAA does not suffer from any legal infirmity and there are not sufficient evidence on file to endorse the view taken by the AO. So, confirming the order of the FAA, we decide ground no. 1 against the AO." Thus, keeping in view the decision of the coordinate bench of this tribunal, where the AO has not disputed the use of material nor disputed the stock of the assessee, hence we do not find any illegality or infirmity in the order of Ld CIT(A). In the result, appeal filed by the Revenue is dismissed.
In view of this, the matter has attained finality now in favor of the appellant. Respectfully following the decision of the Hon'ble ITAT in the appellant's own case for A.Y. 2010-11, I delete the disallowance of Rs.33,34,760/- made by the A.O. on account of bogus purchase for AY. 2009-10. The appeal is allowed.
Respectfully following the same, we dismiss the departmental appeal.
Order pronounced in the open court on 11.10.2017.