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Income Tax Appellate Tribunal, “A” BENCH : KOLKATA
Before: Hon’ble Shri M.Balaganesh, AM & Shri S.S.Viswanethra Ravi, JM]
IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH : KOLKATA [Before Hon’ble Shri M.Balaganesh, AM & Shri S.S.Viswanethra Ravi, JM] I.T.A No. 1541/Kol/2016 Assessment Year : 2011-12 I.T.O., Ward-47(2), Kolkata -vs- Sumit Jaiswal [PAN: ALUPJ 0779 L] (Appellant) (Respondent)
For the Appellant : Shri G. Hangshing, CIT For the Respondent : Shri Miraj D Shah, AR Date of Hearing : 06.02.2018 Date of Pronouncement : 14.02.2018
ORDER Per M.Balaganesh, AM
This appeal by the Revenue arises out of the order of the Learned Commissioner of Income Tax(Appeals)-14, Kolkata [in short the ld CIT(A)] in Appeal No.66/CIT(A)- 14/Cir-27/Wd-47(2)/2014-15 dated 31.03.2016 against the order passed by the ITO, Ward-46(4), Kolkata [ in short the ld AO] under section 143(3) of the Income Tax Act, 1961 (in short “the Act”) dated 31.03.2014 for the Assessment Year 2011-12.
At the outset, we find that there is a delay of 29 days in filing of appeal by the Revenue before us. In view of the concession given by the Ld. AR and the reasons stated by the Revenue for the said delay, we are inclined to condone the delay and admit the appeal of the revenue for adjudication.
2 ITA No.1541/Kol/2016 Sumit Jaiswal A.Yr. 2011-12 3 The first issue to be decided in this appeal is as to whether the Ld. CIT(A) was justified in estimating the profit @ 8% of undisclosed contractual receipts of Rs. 9,16,500/- as against the estimation made by the Ld. AO at 40% of such receipts, in the facts and circumstances of the case.
The brief facts of this issue is that the assessee is an individual engaged in the business of trading of Iron and Steel. During the assessment year under review, the assessee carried out certain fabrication work and derived income from contract business which was shown under the head maintenance and service charges received. The Ld. AO observed that the contractual receipts shown in Form 26AS varied with that shown in the profit and loss account by the assessee to the extent of Rs. 9,16,500/- on which TDS of Rs. 9165/- was deducted by the payer. This sum of Rs. 9,16,500/- representing contractual receipts was not shown by the assessee and accordingly, the Ld. AO estimated the profit at 40% thereon and made addition of Rs. 3,66,600/- in the assessment. The Ld. CIT(A) reduced the same to 8% of 9,16,500/- by applying the section 44AD of the Act without making any specific reference to that section in his order. The Ld. CIT(A) held that admittedly the assessee had not reported the income in the form of differential contractual receipt of Rs. 9,16,500/-. The Ld. CIT(A) also observed that the ld. AO had not provided details of any comparable profit percentages that could be used as a reference point . The assessee had actually declared net profit from contractual receipt at 16.41% in the return of income filed for the assessment year 2011-12. Since, this contract receipts was derived by the assessee for the first time during the year under appeal, there was no past history available with the Ld. CIT(A) to make a reasonable estimate of profit on undisclosed contractual receipt. Accordingly, the Ld. CIT(A) took shelter from the provision embedded in the Statute i.e. Section 44AD [though not specifically mentioned by the Ld. CIT(A) in his order] and resorted to estimate the profit at 8% of such undisclosed contractual receipts. Aggrieved, the revenue is in appeal before us on the following grounds: 2
3 ITA No.1541/Kol/2016 Sumit Jaiswal A.Yr. 2011-12 1. That the Ld. CIT(A)-14, Kolkata has erred while estimating profit @ 8% gross Receipt instead of total Gross Receipt on service rendered by the assessee.
5.We have heard the rival submissions. It is not in dispute that the assessee had not reported the contractual receipt of Rs. 9,16,500/- in his profit and loss account. It is not in dispute that the said contractual receipt was duly subjected to deduction of tax at source to the tune of Rs. 9165/-. The Ld. CIT(A) had stated that the addition made by the Ld. AO estimating the profit at 40% of undisclosed contractual receipt on an ad hoc basis was unwarranted. The assessee has stated that the contract activity was carried out for the first time during the year under appeal and hence, no past history of the same was available with the Income Tax Department. In these circumstances, the only recourse available to the revenue is to take shelter from the provision of Section 44AD of the Act which enables the revenue to bring to tax at 8% of gross receipts on presumptive basis as the net profit of the assessee. This is provided in section 44AD of the Act which has been rightly relied upon by the Ld. CIT(A) even though no specific reference was made to this section by the Ld. CIT(A) in his order. We hold that the addition made by the ld. AO at 40% of gross receipts is unachievable and cannot be sustained. In view of these circumstances, we hold that the Ld. CIT(A) had rightly estimated the profit at 8% of gross receipts of Rs. 9,16,500/- in the facts and circumstances and hence, we do not find any justifiable reason to interfere in the said order. Accordingly, ground no. 1 raised by the Revenue is dismissed.
The next issue to be decided in this appeal is as to whether the Ld. CIT(A) was justified in estimating the net profit at 1.25% of disputed purchases amounting to Rs. 9,08,82,128/- in the facts and circumstances of the case.
The brief facts of this issue is that the assessee made purchases of steel from M/s Rameswar Enterprises to the tune of Rs. 9,08,82,128/-, in the facts and circumstances of the case. The ld. AO observed that Shri Arun Kr. Mishra, proprietor of M/s Rameswar 3
4 ITA No.1541/Kol/2016 Sumit Jaiswal A.Yr. 2011-12 Enterprises was examined on oath, wherein, he denied having any transaction with the assessee. Based on this statement, the ld. AO sought to treat the purchase of Rs. 9,08,82,128/- as bogus. In response to this, the assessee stated that he had purchased goods and had received bills and challans duly mentioning VAT registration number of M/s Rameswar Enterprises. This fact is also reflected in the sales tax return filed by the assessee. The assessee had actually received those goods in its premises. The assessee is also duly maintaining proper quantitative details to record purchase as well as sales made out of such purchases. Accordingly, it was stated that it is not known why M/s Rameswar Enterprises had denied having supplied any goods to the assessee to the tune of Rs. 9,08,82,128/-. The ld. AO verified the books of accounts of the proprietary concern of M/s Shri Sainath Enterprise, from where he observed that the opening stock and closing stock was shown as NIL, the goods that were purchased, were already sold by the assessee. Since, the assessee had not made any payment to M/s Rameswar Enterprise till 31.3.2011, he treated the purchase made from such party as bogus. The Ld. AO in this process also made an observation that no inference could be drawn from the assessee records that all the purchases are genuine and whatever sales of the assessee are genuine. Accordingly, the Ld. AO made disallowance of Rs. 9,08,82,128/- towards bogus purchases in the assessment.
Before the Ld. CIT(A), the assessee has produced the entire documents that were produced before the ld. AO and reiterated the submissions made thereon. It was pleaded that the ld. AO had mentioned in his order that the sales as well as purchases made by the assessee would not be treated as genuine in respect of the subject mentioned transaction. Accordingly, it was pleaded that the ld. AO ought to have reduced the sales figure also from the total sales reported in view of the fact that there was no closing stock left with the assessee. Moreover, the ld AO himself had stated that all the purchases made by the assessee were sold during the year. The Ld. AO cannot accept the sales made out of alleged bogus purchase and treated the genuine purchase as bogus 4
5 ITA No.1541/Kol/2016 Sumit Jaiswal A.Yr. 2011-12 purchase. In any event it was pleaded that only the profit derived thereon could be brought to the tax. In support of this proposition, the assessee placed reliance on the decision of Hon’ble Gujarat High Court in the case of CIT vs. Bholanath Poly Fabric Pvt. Ltd. reported in 355 ITR 290 wherein it was held that even if it is presumed that the purchase was made from bogus parties, but the purchase themselves cannot be treated as bogus as quantitative tally of goods purchased and sold are available and therefore, the addition should not be the entire amount but the profit margin embedded in such purchases should be subjected to tax. The assessee stated that the net profit declared by him was 0.17% during the year under appeal. The assessee also placed reliance on the decision of Hon’ble Gujarat High Court in the case of CIT vs. Simit P Sheth reported in 356 ITR 451 wherein, in the context of assessee engaged in steel, where purchases were treated as bogus and held that only estimation of profit would be justified.
The Ld. CIT(A) estimated the net profit at 1.25% of disputed purchase of Rs. 9,08,82,128/- as profit embedded in the same profits by observing as under:
“In the instant case, we observe that the appellant deals undisputedly in Iron & Steel where the profits are not very high. The appellant has produced supporting material in the form of quantitative tally of goods purchased from M/s Rameswar Enterprise. Sales themselves have not been doubted nor any other defect found in the other accounting tallies of the appellant. The fact is that the appellant has filed details of the party and its identity which has been found to be correct since the party did appear before the AO. The only reason provided for the treatment of purchases as completely bogus is that the party itself denied it. But if this was to be accepted, then the appellant would truly declare a phenomenally high net profit rate unachievable in this trade. In cases such as these, it has been held that the AO has to take a more circumspect and judicious view and see what recourse is left to an assessee whose seller, for reasons of his own, denies the transaction. In view of the surrounding facts as discussed above, and respectfully following the ratio of judgment of Hon’ble Gujarat High Court as well as the other authorities cited above, I am inclined to sustained an addition of 1.25% on the disputed purchase of Rs. 9,08,82,128/- as being the profit element in the said purchases – which in any case is much higher than the net profit rate declared by the appellant with respect to the other transactions. The rest of the addition is hereby deleted.”
6 ITA No.1541/Kol/2016 Sumit Jaiswal A.Yr. 2011-12 10. Aggrieved the revenue is in appeal before us on the following grounds: 2. That the Ld. CIT(A)-14, Kolkata has erred by estimating 1.25% of the sundry creditors credit amount instead of total credit amount.
That the Ld. CIT(A)-14, Kolkata has erred in estimating 1.25% of the sundry creditors credit though no part of the said amount was never paid by the assessee to the creditor.
That the Ld. CIT(A)-14, Kolkata has erred in estimating 1.25% of the sundry creditors treating it as profit element of the purchase whereas it was found that the assessee introduced capital of Rs. 9,08,82,128/- in disguise of purchase.
That the Ld. CIT(A)-14, Kolkata has erred in concluding the bogus purchase as genuine where the seller on oath declared that he had never sold any commodity to the assessee and receive no amount.
We have heard the rival submissions. We find that the assessee had made purchase from M/s Rameswar Enterprises to the tune of Rs. 9,08,82,128/- which has been treated as bogus by the ld. AO by placing reliance on the statement given by Shri Arun Kr. Mishra, proprietor of M/s Rameswar Enterprise. The assessee had pleaded that it had actually received the goods and had duly maintained the quantitative details of purchase as well as sales made by him. Admittedly, there is no opening and closing stock in the books of the assessee. The Ld. AO had also categorically stated that all the purchases made by the assessee were duly sold. When the sales reported by the assessee has been accepted as genuine, there is no reason to disbelieve the purchases thereon. It is not the case of the ld. AO that the subject mentioned disputed purchases of Rs. 9,08,82,128/- were made by the assessee out of his undisclosed income. In any case, even if, the purchase made from M/s Rameswar Enterprises is not accepted by the Ld. AO then it could have been purchased from any other person, in view of the fact that the said goods had actually reached the premises of the assessee and had been duly sold later. The quantitative details maintained by the assessee in respect of all the purchases and sales are not disputed by the revenue. In these facts, the only recourse available is 6
7 ITA No.1541/Kol/2016 Sumit Jaiswal A.Yr. 2011-12 to bring to tax the profit embedded in the subject mentioned transaction. The assessee also reported gross profit and net profit as under:
ASSESSMENT YEAR GROSS PROFIT NET PROFIT 2011-12 0.27% 0.17% 2012-13 2.06% 0.02% 2013-14 0.40% 0.03%
We also find that the assessee had made total sales of Rs. 24.87 crores which has been credited in the profit and loss account. The entire sales of Rs. 24.87 crores has been accepted by the Revenue . We are inclined to accept the stand taken by the Ld. CIT(A) that only profit percentage should be brought to tax in the subject mentioned transaction. In this regard we also place reliance on the following decisions:
(i) Decision of Hon’ble Co-ordinate Bench of this Tribunal in the case of Shri Asok Kr. Pal vs. ITO in ITA No. 647/Kol/2014 for assessment year 2009-10 dt 02.09.2016; (ii) Decision of Hon’ble Co-ordinate Bench of this Tribunal in the case of DCIT vs. M/s Janardan Cement Co. Pvt. Ltd. in ITA No. 1052/Kol/2013 for assessment year 2008-09 dated 28.08.2017 (iii) Decision of Hon’ble Jharkhand High Court in the case of Amitabh Construction vs. ACIT reported in 335 ITR 523; (iv) CIT vs. Bholanath Poly Fabric Pvt. Ltd. reported in 355 ITR 290; (v) CIT vs. Simit P Sheth reported in 356 ITR 451;
In view of the aforesaid facts and respectfully following the various judicial precedents relied upon we hold that the estimation of net profit at 1.25% of the
8 ITA No.1541/Kol/2016 Sumit Jaiswal A.Yr. 2011-12 disputed purchases by the Ld. CIT(A) does not call for any inference. Accordingly, grounds raised by the revenue are dismissed.
In the result, the appeal of the revenue is dismissed.
Order pronounced in the Court on 14.02.2018
Sd/- Sd/- [S.S. Viswanethra Ravi] [ M.Balaganesh ] Judicial Member Accountant Member
Dated : 14.02.2018 SB, Sr. PS
Copy of the order forwarded to: 1. I.T.O, Ward-47(2), Kolkata, 3, Govt. Place, 1st Floor, Kolkata-700001. 2. Sumit Jaiswal, 18/2/1, Bhagaban Chatterjee Lane, Kadamtala, Howrah-711101. 3..C.I.T.- 4. C.I.T.- Kolkata. 5. CIT(DR), Kolkata Benches, Kolkata.