MAYUR SHRIMANKAR,MUMBAI vs. ITO-21(1)(3), MUMBAI

आदेश / O R D E R

Per Joginder Singh (Judicial Member) Both these appeals are by the assessee for Assessment

Year 2009-10 and 2011-12 challenging the impugned

orders dated 09/01/2016 & 18/01/2016 of the First

Appellate Authority, Mumbai, confirming the addition of

`7,77,099/- `62,16,794/- out of total addition of

(Assessment Year 2011-12) and `12,58,138/- u/s 69C of

the Act out of the addition of `1,00,65,104/- (Assessment

Year 2009-10).

assessee whereas, Shri Ram Tiwari, Ld. Sr. DR. was

present for the Revenue. It is noted that on 01/08/2016,

the appeals of the assessee were adjourned at the request

of the assessee. Today, the assessee neither presented

himself nor moved any adjournment petition. It seems that

the assessee has nothing to say, therefore, we have no

option but to proceed ex-parte, qua the assessee and tend

to dispose off these appeals on the basis of material

available on record.

3 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar 2.1. It is also noted that the delay of four days in

filing the appeal before this Tribunal. The Ld. DR

contended that the assessee is to explain the delay of each

day.

2.2. We have considered the submissions of Ld. DR

and perused the material available on record. So far as,

condonation of delay is concerned no doubt filing of an

appeal is a right granted under the statute to the assessee

and is not an automatic privilege, therefore, the assessee is

expected to be vigilant in adhering to the manner and mode

in which the appeals are to be filed in terms of the relevant

provisions of the Act. Nevertheless, a liberal approach has

to be adopted by the appellate authorities, where delay has

occurred for bona-fide reasons on the part of the assessee

or the Revenue in filing the appeals. In matters concerning

the filing of appeals, in exercise of the statutory right, a

refusal to condoned the delay can result in a meritorious

matter being thrown out at the threshold, which may lead

to miscarriage of justice. The judiciary is respected not on

account of its power to legalize in justice on technical

4 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar grounds but because it is capable of removing injustice and

is expected to do so.

2.3. The Hon’ble Apex Court in a celebrated decision

in Collector, Land Acquisition vs Mst. Katiji & Ors. 167 ITR

471 opined that when technical consideration and

substantial justice are pitted against each other, the courts

are expected to further the cause of substantial justice.

This is for the reason that an opposing party, in a dispute,

cannot have a vested right in injustice being done because

of a non- deliberate delay. Therefore, it follows that while

considering matters relating to the condonation of delay,

judicious and liberal approach is to be adopted. If

sufficient cause is found to exist, which is bona-fide one,

and not due to negligence of the assessee, the delay needs

to condoned in such cases. The expression ‘sufficient

cause’ is adequately elastic to enable the courts to apply

law in a meaningful manner, which sub-serves the end of

justice- that being the life purpose of the existence of the

institution of the courts. When substantial justice and

technical consideration are pitted against each other, the

cause of substantial justice deserves to be preferred. The

5 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar Hon’ble Apex Court in Vedabhai vs Santaram 253 ITR 798

observed that inordinate delay calls of cautious approach.

This means that there should be no malafide or dilatory

tactics. Sufficient cause should receive liberal construction

to advance substantial justice. The Hon’ble Apex Court in

167 ITR 471 observed as under:-

“3. The legislature has conferred the power to condone delay by enacting section 51 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on de merits. The expression “sufficient cause” employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose of the existence of the institution of courts. It is common knowledge that this court has been making a justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the others courts in the hierarchy.”

2.4. Furthermore, the Hon'ble Supreme Court in the

case of Vedabai Alia Vaijayanatabai Baburao Patil vs.

Shantaram Baburao Patil 253 ITR 798 held that the court

has to exercise the discretion on the facts of each case

keeping in mind that in construing the expression

‘sufficient cause’, the principle of advancing substantial

justice is of prime importance. The court held that the

expression “sufficient cause” should receive liberal

construction.

6 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar 2.5. The decision of the Tribunal in People Infocom

Private Ltd. v/s CIT (ITA No.210/Mum/2013) order dated

19/05/2016, M/s Neutron Services Centre Pvt. Ltd vs ITO

(ITA No.1180/Mum/2012) order dated 18/02/2016, Shri

v/s ITO (ITA Saidatta Coop-. Credit Society Ltd.

No.2379/Mum/2015) order dated 15/01/2016 and Mr.

Nikunj Barot (Prop. Enigma) (ITA vs ITO

No.4887/Mum/2015) order dated 06/01/2016, wherein,

substantial delay was condoned, supports the case of the

present assessee. Having made the aforesaid observation

and various decisions discussed hereinabove, including

from Hon’ble Apex Court, the circumstances narrated by

the assessee, wherein, he has stated the reasons which

caused the delay, therefore, the delay is condoned.

concerned, we have considered the submissions of Ld. DR

and perused the material available on record. If the

observation made in the assessment order, leading to

addition made to the total income, conclusion drawn in the

impugned order, material available on record, assertions

7 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar made by the ld. DR, if kept in juxtaposition and analyzed,

before adverting further, the facts of the present appeals

before us, we deem it appropriate to consider various

decisions from Hon'ble High Courts/Hon'ble Apex Court, so

that we can reach to a proper conclusion. The Hon'ble

Gujarat High Court in Sanjay Oilcakes Industries vs CIT

(2009) 316 ITR 274 (Guj.) held as under:-

“11. Having heard the learned advocates appearing for the respective parties, it is apparent that no interference is called for in the impugned order of the Tribunal dated April 29, 1994, read with the order dated September 29, 1994, made in miscellaneous application. In the principal order the Tribunal has recorded the following findings : "8.3. We have considered the rival submissions and perused the facts on record. In our opinion, the action of the Commissioner of Income-tax (Appeals) confirming 25 per cent. of the amounts claimed is fair and reasonable and no interference is called for. The Commis sioner of Income-tax (Appeals) has gone through the purchase prices of the raw material prevalent at the time and rightly came to the con clusion that the disallowance to the extent of 25 per cent. was called for. It is established that the parties were not traceable ; they opened the bank accounts in which the cheques were credited but soon thereafter the amounts were withdrawn by bearer cheques. That fairly leads to the conclusion that these parties were perhaps creation of the assessee itself for the purpose

8 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar of banking purchases into books of account because the purchases with bills were not feasible. Thus, the abovenoted parties become conduit pipes between the assessee- firm and the sellers of the raw materials. Under the circumstances, it was not impossible for the assessee to inflate the prices of raw materials. Accordingly, an addition at the rate of 25 per cent. for extra price paid by the assessee than over and above the prevalent price is fair and reasonable and we accordingly confirm the finding of the Commis sioner of Income-tax (Appeals)." 12. Thus, it is apparent that both the Commissioner (Appeals) and the Tribunal have concurrently accepted the finding of the Assessing Officer that the apparent sellers who had issued sale bills were not traceable. That goods were received from the parties other than the persons who had issued bills for such goods. Though the purchases are shown to have been made by making payment thereof by account payee cheques, the cheques have been deposited in bank accounts ostensibly in the name of the apparent sellers, thereafter the entire amounts have been withdrawn by bearer cheques and there is no trace or identity of the person withdrawing the amount from the bank accounts. In the light of the aforesaid nature of evidence it is not possible to record a different conclusion, different from the one recorded by the Commissioner (Appeals) and the Tribunal concurrently holding that the apparent sellers were not genuine, or were acting as conduit between the assessee-firm and the actual sellers of the raw materials. Both the Commissioner (Appeals) and the Tribunal have, therefore, come to the conclusion that in such circumstances, the likelihood of the purchase price being inflated cannot be ruled out and there is no material to dislodge such finding.

9 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar The issue is not whether the purchase price reflected in the books of account matches the purchase price stated to have been paid to other persons. The issue is whether the purchase price paid by the assessee is reflected as receipts by the recipients. The assessee has, by set of evidence available on record, made it possible for the recipients not being traceable for the purpose of inquiry as to whether the payments made by the assessee have been actually received by the apparent sellers. Hence, the estimate made by the two appellate authorities does not warrant interference. Even otherwise, whether the estimate should be at a particular sum or at a different sum, can never be an issue of law.” In the aforesaid case, the Hon'ble High Court accepted

that the apparent sellers, who issued the said bills were not

traceable and the goods received from parties other than

the persons, who had issued the bills for such goods. The

purchases were shown to have been made by making

payments, through banking channel and thus the apparent

sellers were not genuine or were acting as conduit between

the assessee and the actual seller. In such a situation, the

conclusion drawn by the Ld. Commissioner of Income Tax

(Appeal) as well as by the Tribunal was affirmed. Hon'ble

Apex Court in Kachwala Gems vs JCIT (2007) 158 taxman

71 observed that an element of guesswork is inevitable in

cases, where estimation of income is warranted.

10 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar 3.1. The Hon'ble Gujarat High Court in CIT vs

Bholanath Poly Fab. Pvt. Ltd. (2013) 355 ITR 290 (Guj.)

held/observed as under:-

“5. Having come to such a conclusion, however, the Tribunal was of the opinion that the purchases may have been made from bogus parties, nevertheless, the purchases themselves were not bogus. The Tribunal adverted to the facts and data on record and came to the conclusion that the entire quantity of opening stock, purchases and the quantity manufactured during the year under consideration were sold by the assessee. Therefore, the purchases of the entire 1,02,514 metres of cloth were sold during the year under consideration. The Tribunal, therefore, accepted the assessee's contention that the finished goods were purchased by the assessee, may be not from the parties shown in the accounts, but from other sources. In that view of the matter, the Tribunal was of the opinion that not the entire amount, but the profit margin embedded in such amount would be subjected to tax. The Tribunal relied on its earlier decision in the case of Sanket Steel Traders and also made reference to the Tribunal's decision in the case of Vijay Proteins Ltd. v. Asst. CIT [1996] 58 ITD 428 (Ahd). 6. We are of the opinion that the Tribunal committed no error. Whether the purchases themselves were bogus or whether the parties from whom such purchases were allegedly made were bogus is essentially a question of fact. The Tribunal having examined the evidence on record came to the conclusion that the assessee did purchase the

11 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar cloth and sell the finished goods. In that view of the matter, as natural corollary, not the entire amount covered under such purchase, but the profit element embedded therein would be subject to tax. This was the view of this court in the case of Sanjay Oilcake Industries v. CIT [2009] 316 ITR 274 (Guj). Such decision is also followed by this court in a judgment dated August 16, 2011, in Tax Appeal No. 679 of 2010 in the case of CIT v. Kishor Amrutlal Patel. In the result, tax appeal is dismissed.” 3.2. Likewise, the Hon'ble Gujarat High Court in CIT

vs Vijay M. Mistry Construction Ltd. (2013) 355 ITR 498

(Guj.) held/observed as under:-

“6. As is apparent from the facts noted hereinabove, the Commissioner (Appeals) after appreciating the evidence on record has found that the assessee had in fact made the purchases and, hence, the Assessing Officer was not justified in disallowing the entire amount. He, however, was of the view that the assessee had inflated the purchases and, accordingly, by placing reliance on the decision of the Tribunal in the case of Vijay Proteins (supra) restricted the disallowance to 20 per cent. The Tribunal in the impugned order has followed its earlier order in the case of Vijay Proteins to the letter and enhanced the disallowance to 25 per cent. Thus, in both cases, the decision of the Commissioner (Appeals) as well as that of the Tribunal is based on estimate. This High Court in the case of Sanjay Oil Cake [2009] 316 ITR 274 (Guj) has held that whether an estimate should be at a particular sum or at a different sum can never be a question of law.

12 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar 7. The apex court in the case of Kachwala Gems [2007] 288 ITR 10 (SC) has held that in a best judgment assessment there is always a certain degree of guess work. No doubt, the authorities should try to make an honest and fair estimate of the income even in a best judgment assessment and should not act totally arbitrarily but there is necessarily some amount of guess work involved in a best judgment assessment. 8. Examining the facts of the present case in the light of the aforesaid decisions, the decision of the Tribunal, being based on an estimate, does not give rise to any question of law so as to warrant interference. 9. In so far as the proposed questions (C), (D) and (E) are concerned, the same are similar to the proposed question (A) wherein the Tribunal has restricted the addition to 25 per cent. on similar facts. In the circumstances, for the reasons stated hereinabove, the said grounds of appeal do not give rise to any question of law. 10. As regards the proposed question (B) which pertains to the deletion of addition of Rs. 7,88,590 made on account of inflation of expenses paid to Metal and Machine Trading Co. (MMTC), the Assessing Officer has found that MMTC was a partnership firm of Shri Nitin Gajjar along with his father and brother operating from Bhavnagar. A perusal of their transactions with the assessee indicated that there is some inflation of expenses as detailed in paragraph 6.1 of the assessment order. After considering the evidence on record, the Assessing Officer disallowed the amount Rs. 7,88,590 on account of payment made to MMTC. 11. The assessee preferred an appeal before the Commissioner (Appeals), who upon appreciation of the evidence on record found that the Assessing Officer had not rejected the genuineness of the purchases made from MMTC while making the

13 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar disallowance. His observations were based on inflation of rates which were being charged from the assessee. According to the Commissioner (Appeals), though MMTC in some respect could be attributed to be associated with the assessee- company, still it could not be expected that MMTC was carrying out its business without any motive or profit. According to the Commissioner (Appeals), it was proved by the assessee that the rates charged by MMTC were comparable with the prevailing market rates, no such addition can stand. The Commissioner (Appeals) took note of the fact that it was not the case of the Assessing Officer that the purchases had been directly effected from third parties and not directly from MMTC ; the difference could not be the net profit in the hands of MMTC ; and that while conducting the entire exercise MMTC would have to incur certain expenditure in transportation, in engaging personnel in the office and other operations and was accordingly of the view that there was no case of actual inflation of rates and deleted the addition. 12. The Tribunal, in the impugned order, has concurred with the findings recorded by the Commissioner (Appeals) and has found that the assessee had made purchases from MMTC at the prevailing market rates and that MMTC had incurred certain expenditure in engaging personnel in the office and other operations and would make some income from the entire exercise. In the circumstances, the purchases made by the assessee from MMTC would not be hit by the provisions of section 40A(2) of the Act. 13. Thus, the conclusion arrived at by the Tribunal is based on concurrent findings of fact recorded by the Commissioner (Appeals) as well as the Tribunal. It is not the case of the Revenue that the Tribunal has taken into account any irrelevant material or that any relevant material has not been taken into consideration. In the absence of any material to the contrary being pointed out on behalf

14 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar of the Revenue, the impugned order being based on concurrent findings of fact recorded by the Tribunal upon appreciation of the evidence on record, does not give rise to any question of law in so far as the present ground of appeal is concerned. 14. In relation to the proposed question (F) which relates to the deletion of addition of Rs. 44,54,426 made on account of purchase of crane and allowing depreciation on the same, the Assessing Officer observed that the assessee had purchased a crawler crane for an amount of Rs. 24,61,000 excluding the cost of spare parts of Rs. 14,98,490. The Assessing Officer after examining the evidence on record and considering the explanation given by the assessee, made addition of Rs. 44,54,426, Rs. 39,59,490 being the purchase price of the crane along with its spare parts and Rs. 4,94,936 being depreciation claimed by the assessee. The Commissioner (Appeals), upon appreciation of evidence on record, was of the view that the Assessing Officer has not appreciated the facts of the case properly and had made disallowance which was not permitted by the Income-tax Act. It was held that disallowance could only have been made in respect of expenses debited to the profit and loss account whereas in the present case the purchase of crane and spare parts of the crane and other machineries were in the nature of acquisition of capital asset. According to the Commissioner (Appeals), the disallowance could have been made on depreciation only if at all the Assessing Officer conclusively proved that the purchases of crane and other parts are bogus. Upon appreciation of the material on record the Commissioner (Appeals) found that the Assessing Officer has simply brushed aside all the evidence on account of technical infirmities and that the evidence such as octroi receipt ; hypothecation of the crane to the bank; existence of the crane even till date with the assessee conclusively proved that the crane was purchased and it was in use even as on date with

15 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar the assessee. The Commissioner (Appeals) accordingly found that there was no scope for any disallowance and accordingly deleted the disallowance made on account of purchase of crane and allowed the depreciation as claimed by the assessee. 15. The Tribunal, in the impugned order, has noted that the cost of crane was never claimed by the assessee in the return of income. Before the Tribunal, the assessee produced the evidence that the crane in question was registered with the RTO and the same was wholly and exclusively used for the purposes of its business. The Tribunal, therefore, held that the Commissioner (Appeals) was legally and factually correct in deleting the disallowance of cost of crane as well as depreciation thereon. 16. From the facts emerging from the record, it is apparent that the assessee had never claimed the cost of the crane in the return nor had it debited the expenses to the profit and loss account, and as such the question of disallowing the same and adding the same to the income would not arise. Moreover, in the absence of any evidence to indicate that the purchase was bogus or that the crane in fact did not exist, the question of disallowing the deprecation in respect of the same also would not arise. When the assessee had conclusively proved the purchase and existence of the crane, and had not debited the expenses to the profit and loss account, no addition could have been made in respect of the purchase price nor could have depreciation been disallowed in respect thereof. The Tribunal was, therefore, justified in deleting the addition as well as disallowance of depreciation. 17. In the light of the aforesaid discussion, it is not possible to state that there is any legal infirmity in the impugned order made by the Tribunal so as to warrant interference. In the absence of any

16 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar question of law, much less, a substantial question of law, the appeal is dismissed.” 3.3. The Hon'ble jurisdictional High Court in the case

of CIT vs Ashish International Ltd. (ITA No.4299/2009)

order dated 22/02/2011, observed/held as under:-

“The question raised in this appeal is, whether the Tribunal was justified in deleting the addition on account of bogus purchases allegedly made by the assessee from M/s. Thakkar Agro Industrial Chem Supplies P. Ltd. According to the revenue, the Director of M/s. Thakkar Agro Industrial Chem Supplies P. Ltd. in his statement had stated that there were no sales / purchases but the transactions were only accommodation bills not involving any transactions. The Tribunal has recorded a finding of fact that the assessee had disputed the correctness of the above statement and admittedly the assessee was not given any opportunity to cross examine the concerned Director of M/s. Thakkar Agro Industrial Chem Supplies P. Ltd. who had made the above statement. The appellate authority had sought remand report and even at that stage the genuineness of the statement has not been established by allowing cross examination of the person whose statement was relied upon by the revenue. In these circumstances, the decision of the Tribunal being based on the fact, no substantial question of law can be said to arise from the order of the Tribunal. The appeal is dismissed with no order as to costs.” 3.4. The Hon'ble jurisdictional High Court in CIT vs

Nikunj Exim Enterprises Pvt. Ltd. (2015) 372 ITR 619

(Bom.) held/observed as under:-

17 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar “7. We have considered the submission on behalf of the Revenue. However, from the order of the Tribunal dated April 30, 2010, we find that the Tribunal has deleted the additions on account of bogus purchases not only on the basis of stock statement, i.e., reconciliation statement but also in view of the other facts. The Tribunal records that the books of account of the respondent-assessee have not been rejected. Similarly, the sales have not been doubted and it is an admitted position that substantial amount of sales have been made to the Government Department, i.e., Defence Research and Development Laboratory, Hyderabad. Further, there were confirmation letters filed by the suppliers, copies of invoices for purchases as well as copies of bank statement all of which would indicate that the purchases were in fact made. In our view, merely because the suppliers have not appeared before the Assessing Officer or the Commissioner of Income-tax (Appeals), one cannot conclude that the purchases were not made by the respondent-assessee. The Assessing Officer as well as the Commissioner of Income-tax (Appeals) have disallowed the deduction of Rs. 1.33 crores on account of purchases merely on the basis of suspicion because the sellers and the canvassing agents have not been produced before them. We find that the order of the Tribunal is well a reasoned order taking into account all the facts before concluding that the purchases of Rs. 1.33 crores was not bogus. No fault can be found with the order dated April 30, 2010, of the Tribunal.” 3.5. The Hon'ble Gujarat High Court in CIT vs M.K.

Brothers (163 ITR 249) held/observed as under:-

“Being aggrieved by the aforesaid order, the assessee went in second appeal before the Tribunal. It was urged on behalf of the assessee that the transactions in question were normal business

18 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar transactions and the assessee had made payments by cheques. The parties did not come forward and if they did not come, the assessee should not suffer. However, on behalf of the Revenue, it was urged that detailed inquiries were made and thereafter the conclusion was reached. The Tribunal found that there was no evidence anywhere that these concerns gave bogus vouchers to the assessee. No doubt, there were certain doubtful features, but the evidence was not adequate to conclude that the purchases made by the assessee from the said parties were bogus. The Tribunal accordingly, did not sustain the addition retained by the Appellate Assistant Commissioner. Hence, at the instance of the Revenue, the aforesaid question has been referred to this court for opinion. On a perusal of the order of the Tribunal, it clearly appears that whether the said transactions were bogus or not was a question of fact. The Tribunal has also pointed out that nothing is shown to indicate that any part of the fund given by the assessee to these parties came back to the assessee in any form. It is further observed by the Tribunal that there is no evidence anywhere that these concerns gave vouchers to the assessee. Even the two statements do not implicate the transactions with the assessee in any way. With these observations, the Tribunal ultimately has observed that there are certain doubtful features, but the evidence is not adequate to conclude that the purchases made by the assessee from these parties were bogus. It may be stated that the assessee was given credit facilities for a short duration and the payments were given by cheques. When that is so, it cannot be said that the entries for the purchases of the goods made in the books of account were bogus entries. We, therefore, do not find that the conclusion arrived at by the Tribunal is against the weight of evidence. In that view of the matter, we answer the question in the affirmative, that is, in favour of the assessee and against the

19 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar Revenue. Accordingly, the reference stands disposed of with no order as to costs.”

3.6. The Mumbai Bench of the Tribunal in the case of

DCIT vs Rajeev G. Kalathil (2015) 67 SOT 52 (Mum.

Trib.)(URO), identically, held as under:-

“2.2.Aggrieved by the order of the AO, assessee preferred an appeal before the First Appellate Authority(FAA).Before him it was argued that assessee had filed copies of bills of purchase from DKE and NBE, that both the suppliers were registered dealers and were carrying proper VAT and registration No.s, that ledger accounts of the parties in assessee's books showed bills accounted for, that payment was made by cheques, that a certificate from the banker giving details of cheque payment to the said parties was also furnished. Copies of the consignment, received from the Government approved transport contractors showing that material purchased was actually delivered at the site was furnished before the AO. It was also argued that some of the material purchased from the said parties were lying part of closing stock as on 31.03.2009 as per the statement submitted on record. After considering the assessment order and the submissions made by the assessee, FAA held that the transactions were supported by proper documentary evidences, that the payments made to the parties by the assessee were in confirmation with bank certificate,t hat the suppliers was shown as default under the Maharashtra VAT Act could not be sufficient evidences to hold that the purchases were non-genuine, that the AO had not brought any independent and reliable evidences against the assessee to prove the non-genuineness of the purchases, that there was no evidence regarding cash received back from the suppliers. Finally, he deleted the addition made by the AO .

20 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar “2.3.Before us, Departmental Representative argued that both the suppliers were not produced before the AO by the assessee, that one of them was declared hawala dealer by VAT department, that because of cheque payment made to the supplier transaction cannot be taken as genuine. He relied upon the order of the G Bench of Mumbai Tribunal delivered in the case of Western Extrusion Industries. (ITA/6579/Mum/2010-dated 13.11.2013). Authrorised representative (AR) contended that payments made by the assessee were supported by the banker’s statement, that goods received by the assessee from the supplie was part of closing stock,that the transporter had admitted the transportation of goods to the site.He relied upon the case of Babula Borana (282 ITR251), Nikunj Eximp Enterprises (P) Ltd. (216Taxman171)delivered by the Hon’ble Bombay High Court. 2.4.We have heard the rival submissions and perused the material before us. We find that 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 accounts 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. (supra)is concerned, we find that in that 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 traial. Secondly, proof of movement

21 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar of goods is not in doubt. Thererfore, 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.” 3.7. The ratio laid down in the case of M/s Neeta

Textiles vs Income Tax Officer 6138/Mum/2013, order

dated 27/05/2013, Shri Jigar V. Shah vs Income Tax

Officer (ITA No.1223/M/2014) order dated 22/01/2016,

M/s Imperial Imp. & Exp. vs Income Tax Officer ITA

No.5427/Mum/2015, order dated 18/03/2016 supports

the case of the assessee and the conclusion drawn in the

impugned order. However, as relied by the Ld. DR, the

Hon'ble Gujarat High Court in the case of N.K. Industries

Ltd.,etc vs DCIT (supra) considering various decisions

decided the issue in favour of the Revenue and the Hon'ble

Apex Court dismissed the SLP vide order dated

16/01/2017 (SLP No.(c) 769 of 2017). We find that in that

case, during search proceedings, certain blank signed

cheque books and vouchers were found and thus the

purchases made from these concerns, were treated as

bogus by the Assessing Officer.

22 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar 3.8. The Hon'ble Gujarat High Court in N.K.

Industries Ltd. vs DCIT (IT Appeal No.240, 261, 242, 260

and 241 of 2003), vide order dated 20/06/2016 considered

the decision of the Tribunal and various judicial decisions

including the case of Vijay Proteins and Sanjay Oilcakes

Industries ltd., M/s Woolen Carpet Factory vs ITAT (2002)

178 CTR 420 (Raj.), the Tribunal was held to be justified in

deciding the case against the assessee. The Hon'ble Apex

Court confirmed the decision of the High Court for adding

the entire income on account of bogus purchases (SLP (C)

No.s 769 of 2017, order dated 16/01/2017.

3.9. In such type of cases, broadly, the Ld.

Commissioner of Income Tax (Appeal) as well as this

Tribunal has followed the decisions from Hon'ble Gujarat

High Court in the case of Simit P. Seth (2013) 356 ITR 451

(Guj.), CIT vs Vijay M. Mistry Construction Ltd. (2013) 355

ITR 498 (Guj.), CIT vs Bhola Nath Poly Fab. (P.) Ltd. (2013)

355 ITR 290 (Guj.) and various other decisions of the

Tribunal and the decision of M/s Nikunj Eximp(supra) from

Hon'ble jurisdictional High Court, wherein, the aggregate

disallowance was restricted to 12.5%. Admittedly, there

23 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar cannot be sale without purchases. The case of the Revenue

is that there is bogus nature of purchases made from

suppliers and the parties were not found existing at the

given addresses.

3.10. Admittedly, in such type of cases, there is no

option but to estimate the profit which depends upon the

subjective approach of an individual and the material facts

available on record. In the present appeal, the assessee

declared income of `10,94,850/- (Assessment Year 2011-

12) in his return filed on 28/09/2011 which was processed

u/s 143(1) of the Act, thereafter the case was reopened with

the issuance of notice u/s 148 of the Act. The Ld. Assessing

Officer received information from the Sales Tax Department

with respect to providing accommodation entries by the

bogus parties/hawala parties. The DGIT(Invg.) also carried

out by way of searches and survey on the basis of this

information and concluded as mentioned at page -2 of the

assessment order. The assessee made purchases from such

parties as mentioned in para 4.1 onwards of the

assessment order. Notices u/s 133(6) were issued to such

parties and were found not available. The assessee was

24 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar asked to produce these parties for cross verification and

also to furnish ledger accounts of such parties. The

assessee did not produce these parties for verification. The

contention of the assessee made vide letter dated

22/02/2014 has been reproduced in para 4.4 onwards of

the assessment order. The Ld. Assessing Officer made the

addition of such bogus purchases to the income of the

assessee.

3.11. On appeal before the Ld. Commissioner of

Income Tax (Appeal), the factual matrix/various case laws

were considered and finally the profit was estimated

@12.5% of such bogus purchases. The assessee is

aggrieved and is in appeal before this Tribunal. The totality

of facts, clearly indicates that the Ld. Commissioner of

Income Tax (Appeal) has very fairly reached to a particular

conclusion and to plug the leakage of revenue estimated

the at 12.5% of such bogus purchases as mentioned in the

respective order. Therefore, in the interest of justice and

fair play, by taking a pragmatic view and to put an end to

the litigation, in principal we affirm the stand of the Ld.

Commissioner of Income Tax (Appeal) by confirming the

25 ITA Nos. 2906 & 2907/Mum/2016 Shri Mayur Shrimankar addition to the extent of 12.5% of the gross bogus

purchases. Since, the facts are identical, therefore, our

conclusion will be applicable to the appeals under

consideration for both the years.

Finally, the appeals of the assessee are dismissed.

This Order was pronounced in the open court in the

presence of ld. representatives from both sides at the

conclusion of the hearing on 03/10/2017.

Sd/- Sd/- (G. Manjunatha) (Joginder Singh) लेखा सद�य / ACCOUNTANT MEMBER �या�यक सद�य / JUDICIAL MEMBER मुंबई Mumbai; �दनांक Dated : 03/10/2017 f{x~{tÜ? P.S/.�न.स.,

आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to :

उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील�य अ�धकरण, मुंबई / ITAT, Mumbai