ACIT 27(3), NAVI MUMBAI vs. VIKRANT VIKAS RAIKAR, MUMBAI

This appeal has been filed by the revenue against order dated 29/02/2016 passed by the Ld. CIT (A)-25, Mumbai pertaining to the Assessment Year 2011-12, whereby the Ld. CIT (A) has partly allowed the appeal filed by the assessee against assessment order passed u/s 143 (3) of the Income Tax Act, 1961 (for short ‘the Act’).

Brief facts of the case are that the assessee engaged in the business of Real Estate Development including construction of residential flats, filed its return of income for the A.Y. 2011-12 declaring total income of Rs. 1,53,10,997/-. During assessment proceedings, the AO received information from the Sales Tax Department through the O/o the DGIT (Inv.), Mumbai that the assessee has obtained accommodation/bogus bills to the extent of Rs.

Aggrieved by the assessment order, the assessee preferred appeal against the order of the AO before the Ld. CIT (A). The Ld. CIT (A) after hearing the assessee restricted the addition to the extent of 10% of the total bogus purchases made by the assessee during the financial year relevant to the assessment year under consideration. The revenue is in appeal against the impugned order passed by the Ld. CIT(A).

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

We have heard the Ld. DR and carefully perused the material on record. The only grievance of the revenue is that the Ld. CIT(A) has wrongly restricted the addition to 10% of the total amount of bogus purchases. The Ld. CIT (A) has restricted the addition holding as under: “2.3 I have carefully considered the submission of the appellant and also the details which have been provided. The only ground on account of which the addition has been made is that the appellant had failed to produce the parties for verification. It has been held by the Hon’ble Bombay High Court in CIT Vs. Nikunj Eximp Enterprises Ltd. (372 ITR 619) that in the absence of rejection of books of accounts and only on the basis that the suppliers had not appeared before the Assessing Officer or the Commissioner (Appeals), it cannot be concluded that the purchases were not made by the assessee. The appellant had stated that based on the certificate issued by the Structural Engineers it had consumed approximately 525 tons, whereas, the total purchases from all the parties is 524 tons. Therefore, as indicated by the Hon’ble High Court in the absence of other evidences, disallowance could not be made only on account of the inability of assessee to produce the parties for verification. The Assessing Officer than issuing notice u/s 133(6) of the Act and deputing the Inspector to verify the addresses provided by the appellant, has not taken any other steps to verify the genuineness of the purchases. The ITAT, ‘D’ Bench, Mumbai, in the case of Rajiv G. Kalathil (ITA No. 7627/Mum/2012) has stated that the Assessing Officer could have called for the details of the bank account of the suppliers to find out whether there was any immediate cash withdrawal from their account. Moreover, it has not been indicated whether the details of transportation or the verification of the consumption of steel or any other steps had been taken to verify the claim of the appellant. In the absence of any other meaningful step, it becomes difficult to sustain the addition made by the Assessing Officer. At the same time, it is also to be noted that, the appellant could have made the purchases from entities who are not mentioned in the books of accounts. As these were made from entities who are not regular suppliers, the appellant would have made purchases at values which are less than the market rates. It has been held by the Hon’ble Gujarat High Court in the case of CIT Vs. Bholanath Polyfab P. Ltd. (355 ITR 290 CIT vs. Smith B. Sheth (356 ITR 451) that when t purchases were not bogus, but had been made from the parties other than those mentioned in the books of accounts, the profit element embedded in such purchases could be added to the assessee’s income. In the case under consideration, the purchases have been made not for trade but for consumption in the building activities of the appellant. It is estimated that 10% of the purchases would be the profit embedded in the purchases made by the appellant from the parties whose names had appeared in the list of hawala operators provided by the Sales Tax Department. The total of the purchase from these parties was Rs. 68,29,508/- and therefore, the profit element would be Rs. 6,82,950/- only. 2.4 In view of the above discussion, the addition made by the Assessing Officer is restricted to the amount of Rs. 6,82,950/- and the balance amount of Rs. 61,46,558/- is deleted.”

We notice that the AO has made addition of the entire amount of purchases in question mainly on the ground that despite a reasonable opportunity afforded to the assessee, the assessee could not produce the parties from whom the purchase were shown made. On the other hand, the Ld.CIT (A) has restricted the addition to 10% of the total amount of purchases, following the ratio laid down by the Hon’ble jurisdictional High Court, Bombai in CIT Vs. Nikunj Eximp Enterprises Ltd. and Hon’ble Gujarat High Court in CIT Vs. Bhola Nath Ployfab Pvt. Ltd. (supra) 9. The Hon’ble Bombay High Court In CIT Vs. Nikunj Eximp Enterprises Pvt. Ltd. (supra) has held 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 (Guj) upheld the decision of the Tribunal and sustained the addition 12.5% of the total bogus purchases holding that only profit element embedded in such purchases can be added to income of the assessee. 10. Hence, in our considered opinion, the finding of Ld. CIT (A) is based on the principles of law laid down by the Hon’ble High Court of Bombay and Gujarat. In our opinion the facts of the cases relied upon by the revenue are different from the facts of the present case. Hence, we do not find any reason to interfere with the order passed by the Ld. CIT (A). We therefore, uphold the order passed by the Ld. CIT (A) and dismiss the appeal of the revenue. [[[