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Income Tax Appellate Tribunal, ‘I’ BENCH, MUMBAI
Before: SHRI RAJENDRA, AM & SHRI RAVISH SOOD, JM
आदेश / O R D E R
PER RAVISH SOOD, JUDICIAL MEMBER
The present appeal filed by the revenue is directed against the order passed by the CIT(A)-54, Mumbai, dated 18.10.2016, which in P a g e | DCIT Vs. M/s E-Land Apparels Ltd. itself arises from the assessment framed by the A.O u/s 143(3) r.w.s. 147 of the Income Tax Act, 1961 (in short ‘the Act’), dated 27.03.2015. The assessee assailing the order of the CIT(A) had raised before us the following grounds of appeal:- “1. On the facts and in the circumstances of the case and in law, Ld. CIT(A) erred in estimating the profit element embedded in the amount represented by bogus purchases recorded in the books of accounts of Rs.6,48,89,661/- at 12.5% of the total bogus purchases without appreciating that any expenditure not found to be incurred at all; least of all that the same is also not laid out or expended wholly and exclusively for the purpose of business is not admissible.
2. Without prejudice to ground no. 1 above, on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in taking only 12.5% of the total amount of bogus purchases as income and thus allowing 87.8% of such total amount as genuine purchases. The appellant prays that the order of Commissioner of Income-tax (Appeal) on the above ground be set aside and that of the ITO /AC /DC be restored. The appellant craves leave to amend or alter any grounds or add a new ground which may be necessary.”
2. Briefly stated, the facts of the case are that the assessee company which is engaged in the business of manufacturing and processing of textiles products had filed its return of income on 29.07.2010, declaring Nil income under normal provisions and Rs.16,91,12,000/-u/s 115JB of the ‘Act’. The return of income of the assessee was processed as such u/s. 143(1). That subsequently information was received by the A.O from the Sales tax department, Government of Maharashtra, therein intimating that the assessee had procured bills for purchase/expenses etc. from certain parties which had indulged in giving bogus bills and were declared as ‘hawala parties’ in the website of the Sales tax department, Govt. of Maharashtra, as under:-
Sr. No. Name of the party Amount 1. Monica International 14,04,666/- P a g e | DCIT Vs. M/s E-Land Apparels Ltd.
Saileela Trading Pvt. Ltd. 36,94,579/- 3. Payal Enterprises 18,563/- 4. Kavita Sales & Jyoti Enterprises 10,55,558/- 5. Diamond Traders 10,88,298/- 6. Daksha Enterprises 15,63,874/- 7. Bright Corporation 5,24,288/- 8. Shree Jalaram Enterprises 28,56,797/- 9. Amar Enterprises 28,78,409/- 10. R.K. Enterprises 48,26,796/- 11. Mercury Enterprises 13,10,514/- 12. Global Trade Impex 42,14,701/- 13. Darshat Trading Pvt. Ltd. 20,76,048/- 14. Adinath Trading company 74,35,768/- 15. Nirmal trading Co. 41,25,929/- 16. Rajshree Enterprises 26,29,666/- 17. Hitech Impex 30,66,819/- 18. Suraj Sales Corporation 17,44,704/- 19. Big Trading Agency 54,12,803/- 20. Bharat Trading Co. 21,97,354/- 21. Rohit Trading Co. 24,58,269/- 22. Satyam Trading Company 26,30,316/- 23. AVI Enterprises 34,74,942/- The A.O on the basis of the aforesaid information reopened the case of the assessee under Sec. 147 of the ‘Act’.
That during the course of the assessment proceedings the assessee objected to the validity of the reopening of the assessment. The A.O during the course of the assessment proceedings called upon the assessee to substantiate the genuineness and veracity of the purchase transactions and placed on record the purchase bills, proof of delivery challans, bank statement showing payments made to the respective parties as well as produce purchase register, sale records, stock register and confirmation from the parties. The assessee in compliance to the aforesaid directions to the A.O, however, could place on record only the copies of bills and ledger accounts. The A.O not P a g e | DCIT Vs. M/s E-Land Apparels Ltd. being satisfied with the material placed on record by the assessee, therefore, directed the assessee to produce the respective parties for examination. However, the assessee expressed its inability to comply with the aforesaid directions of the A.O, for the reason that the transactions were very old and no regular transactions were subsequent thereto made with the said parties. The A.O thus holding a conviction that the latter had failed to discharge the onus cast upon him, therein did not find favour with the contentions raised by the assessee before him. The A.O further taking cognizance of the statements of the aforesaid parties recorded by the Sales tax department, wherein they had conceded that they were engaged in the business of issuing bogus bills and had demonstrated the modus operandi involved in providing the accommodation entries, thus concluded that the assessee had never made any purchases from the said respective parties. The A.O in the backdrop of the aforesaid facts further observed that though the assessee had not made any purchases from the aforementioned hawala parties, but after making purchases of the material under consideration from the open/grey market, had with the intent of routing the said purchases through its ‘books of accounts’, therefore, obtained bogus bills from the aforesaid hawala parties. The A.O on the basis of his aforesaid conviction thus concluded that the assessee by purchasing the goods from the open/grey market and booking the same in its ‘books of accounts’ on the basis of the bogus bills of the aforesaid pasties, had thus managed to siphon off its profits to the extent of the difference between the actual purchase consideration, as against the actual amount parted with by him for procuring the said goods from the open/grey market. The A.O thereafter deliberated on the allocation of the expenditure relatable to the purchases made from the aforesaid concerns, as under:-
P a g e | DCIT Vs. M/s E-Land Apparels Ltd. Sr No. Particular Amount 1. Plant & Machinery Rs.87,46,282/- (Depreciation Rs.8,48,826) 2. Capital work in progress Rs.5,59,24,816/- 3. Repair & maintenance Rs.18,563/- (debited to P&L) Total Rs.6,46,89,661/- The A.O on the basis of the aforesaid facts concluded that the depreciation of Rs. 8,48,826/- pertaining to the ‘Plant and machinery’ of Rs.87,46,282/- and the expenses of Rs. 18,563/- debited by the assessee in its ‘Profit and loss account’ under the head ‘repairs and maintenance’, in respect of which bogus bills had been procured by the assessee were liable to be disallowed and added to the total income of the assessee. The A.O further held that the bogus bills procured by the assessee as regards the expenditure capitalized to W.I.P. under the head Plant & machinery, factory building and electrical installation aggregating to Rs. 5,59,24,816/- was liable to be reduced by the said amount. The A.O observed that no disallowance in respect of the capitalized W.I.P. was called for while computing the total income of the assessee. The A.O thereafter proceeded with and being of view that as the payment of Rs.6,46,89,661/- (supra) was laid by the assessee as an expenditure, therefore, the same in the backdrop of the facts involved therein was to be characterized as an unexplained expenditure and was to be added to the total income of the assessee. The A.O thus on the basis of his aforesaid conviction made an addition of Rs. 6,55,56,050/- (i.e. Rs.8,67,389/- (+) Rs.6,46,89,661/-), and assessed the income of the assessee at Rs. 17,84,76,780.
P a g e | DCIT Vs. M/s E-Land Apparels Ltd.
The assessee being aggrieved with the addition made by the A.O carried the matter in appeal before the CIT(A). The CIT(A) observed that only a sum of Rs. 18,563/- pertaining to repairs and maintenance was debited by the assessee in its ‘Profit and loss account’, while for the remaining purchases under consideration were treated as capital assets. The CIT(A) thus in the backdrop of the aforesaid facts concluded that as the assessee had not claimed the total amount of Rs.6,46,89,661/- as an expense in its ‘Profit and loss account’, or otherwise, therefore, there was no justification on the part of the A.O to have disallowed the amount relatable to the purchases which were treated as capital asset/W.I.P and were never claimed as an expense by the assessee in its ‘Profit and loss account’, or otherwise. The CIT(A) further observed that the assessee had claimed depreciation of Rs.8,48,826/- in its ‘Profit and loss account’ on purchase of plant and machinery of Rs.87,46,282/- out of the above referred purchases of Rs. 6,46,89,661/- from the aforesaid parties under consideration. The CIT(A) deliberating on the aforesaid factual position, thus directed the A.O to reduce the value of purchase of plant and machinery by 12.5%, i.e. Rs.10,93,286/- and compute the eligible depreciation on the balance value of plant and machinery of Rs. 76,52,996/- (i.e. Rs.87,46,282/-(-) Rs.10,93,286/-) in the hands of the assessee. The CIT(A) further adverting to the purchases under consideration of Rs.5,59,24,816/- which had been capitalized by the assessee as capital W.I.P, therein concluded that as no depreciation had been claimed on the said amount during the year under consideration, therefore, no addition in respect of the same was liable to be made in hands of the assessee during the year. However, the CIT(A) directed the A.O to reduce the value of capitalized W.I.P of Rs.5,59,24,816/- by 12.5%, i.e. Rs.69,90,602/ and carry forward the balance reduced value of capital W.I.P of Rs.4,84,34,214/- (i.e. Rs. 5,59,24,816/-(-) Rs.
P a g e | DCIT Vs. M/s E-Land Apparels Ltd. 69,90,602/-) to the succeeding years. The CIT(A) further directed the A.O to take necessary action and withdraw the excess claim of depreciation, if any, as would have been raised by the assessee in the subsequent years, keeping in view the reduction in the value of plant & machinery and capitalized W.I.P. The CIT(A) on the basis of his aforesaid observations did not find favour with the addition of Rs.6,46,89,661/- made by the A.O on account of unexplained expenditure and restricted it to the amount as worked out on the basis of his aforesaid observations.
The revenue being aggrieved with the order of the CIT(A) had carried the matter in appeal before us. That as during the course of the hearing of the appeal the assessee respondent despite having been put to notice as regards the fixation of the hearing of the present appeal had failed to put up an appearance before us, therefore, as per Rule 25 of the Appellate Tribunal rules, 1963, we had proceeded with and disposed of the present appeal on merits, after hearing the appellant revenue. The ld. Departmental Representatives (for short ‘D.R’) had placed reliance on the orders of the lower authorities.
We have heard the ld. Departmental Representative, perused the orders of the lower authorities and the material available on record. We have given a thoughtful consideration to the facts of the case and after perusing the observations recorded by the CIT(A) while restricting the disallowance in respect of (i). repair and maintenance debited by the assessee in its ‘Profit and loss account’ to 12.5% of the amount under consideration; (ii). scaling down of the purchase consideration of the plant & and machinery by 12.5%, and thus restricting the consequential disallowance of depreciation to Rs.2,320/- (i.e. 12.5% of Rs.18,563/-); and (iii) observing that as no depreciation was claimed by the assessee in respect of the capitalized P a g e | DCIT Vs. M/s E-Land Apparels Ltd. W.I.P of Rs. 5,59,24,816/-, therefore, no disallowance during the year under consideration in respect of the same would be called for in the hands of the assessee, are of the considered view that no infirmity emerges from the said observations of the CIT(A) and find ourselves to be in agreement with the aforesaid view arrived at by him. We further find that the CIT(A) duly appreciating that now when the purchase consideration of plant and machinery and Capital W.I.P is to be scaled down/reduced by 12.5%, therefore, he had rightly directed the A.O to verify that only the balance value of the same was carried forward to the succeeding years. We are of the considered view that the CIT(A) as a word of caution had rightly directed that on account of reduction of W.D.V of the value of Plant & machinery and Capital W.I.P, the A.O may take necessary steps and withdraw the excess claim of depreciation in the backdrop of the modified/reduced W.D.V of Plant & machinery and capitalized W.I.P, as claimed by the assessee. That as regards the estimation by the CIT(A) of the profit/ margin embedded in the bogus purchases carried out by the assessee from the aforementioned parties at 12.5%, we are of the considered view that now when it remains as a matter of fact that though the assessee had made purchases of the goods under consideration, though not from the aforementioned parties, but from the open/grey market, then as observed by us hereinabove, the fact that the assessee must have been benefited from procuring such goods at a lower rate cannot be ruled out. Thus in the backdrop of the aforesaid factual position the quantification of the profit/margin involved in procuring of the goods under consideration from the open/grey market, in the absence of any material, has to be left to a fair estimation on the part of the A.O. We find that the Hon’ble High Court of Gujarat in the case of CIT-I Vs. Simit P. Sheth (ITA No. 553 of 2013, dated 16.01.2013) has held that the profit/margin from making of P a g e | DCIT Vs. M/s E-Land Apparels Ltd. bogus purchases can fairly be taken at 12.5% of the value of such bogus purchases. We thus in the backdrop of the aforesaid view arrived at by the Hon’ble High Court, which thereafter had consistently been followed by different coordinate benches of the Tribunal for quantifying the element of benefit involved in making of bogus purchases by an assessee, are thus of the considered view that the CIT(A) had fairly estimated the profit/margin involved in the procuring of the goods from the open/grey market at 12.5%. We thus find no infirmity as regards the estimated rate of profit/margin of 12.5% adopted by the CIT(A), and thus are not persuaded to dislodge the said finding so arrived at by him. We are of the considered view that as the CIT(A) had passed a very well reasoned order, therefore, there is no reason for us to take a different view and dislodge the order so passed by him. We thus in the backdrop of our aforesaid observations uphold the order of the CIT(A) and dismiss the appeal of the revenue.
In the result, the appeal filed by the revenue is dismissed.