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Income Tax Appellate Tribunal, “I”, BENCH, MUMBAI
Before: SHRI RAJENDRA, AM & SHRI RAM LAL NEGI, JM
यनर्ावररती की ओर से /Assessee by : Sh. Satish Modi (AR) राजस्व की ओर से /Revenue by : Shri Saurabh Kumar Rai (DR) सुनर्ाई की तारीख / Date of Hearing : 07/08/2017 घोषणा की तारीख/Date of Pronouncement: 09/08/2017 आदेश / O R D E R PER RAM LAL NEGI, JM These are the cross appeals preferred by the assessee and the revenue against orders dated 27/04/2015, passed by the Ld. CIT (A), 41 Mumbai pertaining to the Assessment Years 2009-10, 2010-11 and 2011-12, whereby the Ld. CIT(A)-41, Mumbai has partly allowed the appeals filed by the assessee against assessment orders passed u/s 143 (3) of the Income Tax Act, 1961 (for short ‘the Act’).
All these appeals pertain to the same assessee for different assessment years aforesaid, the same were clubbed, heard together and are being disposed of by this common order for the sake of convenience.
Since, the facts of all the cases and the issues involved in assessee’s appeals and cross appeals of the revenue are identical except the quantum of addition made by the AO and relief given by the CIT (A), we take the facts of A.Y. 2009-10 as a lead case.
The assessee filed his return of income for the assessment year 2009-10 declaring the total income of Rs. 3,70,230/-. The return was processed u/s 143 (1) and a demand of Rs. 2,900/- was raised. However, the case was reopened u/s 147 of the Act. The reasons recorded for reopening the case reads as under:- “This office has received information regarding bogus purchases involving Rs. 1 crore above from DG (Inv), Mumbai. In the list of assessee provided by the DG (Inv) the name of (S A S Marketing (propretory concern of Shri Ashok Kumar Rungta) is appearing who is assessed in this charge and as per the information the above assessee has made bogus purchases during the previous year 2008-09 relevant to AY 2009-10 of Rs. 2,10.45,351/-. I, have therefore reason to believe that income chargeable to tax of Rs. 2,10,45,351/- for AY 2009-10 has escaped assessment in this assessee’s case within the meaning of provisions of Section 147 of the IT Act, 1961. Issue notice u/s 148 of the IT Act, 1961”
Notice u/s 148 was accordingly served upon the assessee and the copy of reasons recorded for reopening of the assessment was also furnished. In response thereof, the assessee asked to treat the original return as return filed in response to notice u/s 148. Since, the assessee had shown purchase of Rs. 5,31,34,226/- during the financial year relevant to the assessment year under consideration and had furnished details of the purchases made, notices u/s 133 (6) were issued to the parties concerned, calling for certain information in order to verify the genuineness of the purchases. However, the notices issued to 12 parties from whom the assessee had shown purchases worth Rs. 2,37,63,659/-, returned un-served by the postal department with the remarks “not known”. The assessee also failed to produce parties to prove their identity and genuineness of transaction. The assessee was further asked to show cause as to why the purchases in question should not be treated as bogus.
In response to the show cause notice, the assessee submitted that all purchases in question are genuine. The quantitative details of the products and records along with party wise and product wise details of the purchases with corresponding sales and other related documents enclosed establish that the transactions are genuine. Moreover, the payments were made to the parties through banking channels and account payee cheques. The assessee further submitted that the documentary evidence on record, clearly establish the identity of the parties and genuineness of the purchases.
Rejecting the contention of the assessee, AO treated the amount of Rs. 2,37,63,659/- as unexplained expenditure added the same to the income of the assessee and determined the total income at Rs. 2,41,33,890/-.
Feeling aggrieved by the assessment order, the assessee carried the matter before the Ld. CIT (A) in first appeal. The Ld. CIT (A) after hearing the assessee restricted the addition @ 10% of the total addition made by the AO.
Still aggrieved, the assessee is in appeal before the Tribunal on the following grounds: 1) “The Learned Assessing Officer has erred in reopening the case, without considering the facts and circumstances of the case.
2) The Learned Assessing Officer has erred in making an addition of Rs. 2,37,63,569/- u/s 69C of the Income Tax Act, 1961 by treating the genuine Purchases as alleged Unexplained Expenditure, without considering the facts and circumstances of the case. 3) The Learned Assessing Officer has erred in not appreciating the fact that during the reassessment proceedings the appellant had submitted the stock registered and also provided the quantities details showing one to one co relation with sales and purchases. 4) The appellant craves leave to add, amend, alter or delete the said ground of appeal.”
10. Before us, the Ld. counsel for the assessee submitted that the Ld. CIT (A) has wrongly sustained the addition @ 10% of the total amount. Since, the assessee has submitted all the documentary evidence in support of purchases from the parties such as purchase and sales invoices, bank statements, quantitative details of purchase and corresponding sales delivery challans, stock register and confirmation etc. in order to prove the genuineness of the transaction, the Ld. CIT(A) ought to have deleted the entire addition made by the AO. Therefore, the impugned order not in accordance with the evidence on record hence the same is liable to be set aside.
11. On the other hand, the Ld. Departmental Representative (DR) relying on the findings of the AO submitted that the Ld. CIT (A) has wrongly restricted the addition to 10% of the total addition made by the AO. Since, the assessee could not produce lorry receipts to prove the movements of goods, failed to discharge the onus of proving genuineness of the transaction. Moreover, the assessee has failed to produce the parties from whom goods were shown purchased or brokers through whom the purchases were made or transporters who transported the goods. The Sales Tax Department has conducted thorough enquiry and found that, during the relevant period, the parties were engaged in the business of providing accommodation entries. The directors of the said companies/parties have admitted that they used to issue bogus bills. The Ld. DR relying on the judgment of Hon’ble Gujarat High Court passed in N.K. Protein Limited vs. DCIT, Tax Appeal No 240,241,261,242 & 260 of 2003 dated 20.06.2016, further submitted that since the impugned order is not in accordance with the law laid down by the Hon’ble Gujarat High Court, and upheld by the Hon,ble Supreme Court, the same is liable to be set aside.
We have heard the rival submissions and also perused the material on record. The Ld. CIT (A) has restricted the addition to 10% of the alleged bogus purchases holding as under: “3.3 I have considered the above submissions of the appellant, material available on record and the impugned assessment order on this issue. The list of the suspicious dealers and hawala parties has been obtained from DGIT (Inv.). The Appellant has unable to prove the genuineness of the transactions by producing the parties or getting the confirmations from these parties. No reply or confirmation has been obtained to the notice/s issued u/s 133 (6) of the Income Tax Act, 1961.
Further, considering that the sales of the Appellant are genuine and has not been under doubt, the entire amount of purchases cannot be disallowed. Further, I hereby estimate a profit of 10% in the said alleged bogus and ingenuine purchases and accordingly, I do hereby direct to disallow only the sum of Rs. 23,76,366/- being the profit margin on the purchases from the parties covered under hawala and considered to be ingenuine and unexplained expenditure of Rs. 2,37,63,659.
In view of these facts, the entire additions made by the AO of Rs. 2,37,63,659/- is not justified and accordingly I direct the AO to restrict the additions to the extent of profit margins at Rs. 23,76,366/- made u/s 69C. This ground of appeal is partly allowed.”
13. We notice that the AO has treated the entire purchases of Rs 2,37,63,659/-made from the 12 parties mentioned the assessment order without rejecting the transacting of sale. Once the sale is accepted then it cannot be said that the assessee has sold the goods without making any purchase. So, the findings of the AO are not based on any cogent and convincing evidence. On the other hand the assessee has also failed to produce the parties, from whom the alleged purchases were made and other documents to prove the movement of goods. The said facts however, suggest that the assessee has purchased the goods from gray market in order to evade taxes. The Hon’ble Bombay High Court in CIT vs. Nikunj Eximp Enterprises 372 ITR 619(Bom) has held that merely because the suppliers had not appeared before the AO or the CIT, one could not conclude that the purchases were not made. In our considered opinion the findings of the Ld. CIT(A) is in accordance with the ratio laid down by the jurisdictional High Court in CIT vs. Nikunj Eximp Enterprises (supra) as the facts of both the case are almost similar. The Ld. CIT(A) has restricted the addition to 10% of the total purchases in question taking into consideration the fact that the assessee has filed the sales tax return and VAT audit report apart from other documents, which establish the genuineness of the transaction of sale. In our considered opinion the facts of the case relied upon by the revenue are different from the facts of the present case. Under these circumstances we uphold the findings of the Ld. CIT(A) and sustain 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.
ITA No. 4205/Mum/2015 (A.Y. 2009-10)
The revenue has challenged the impugned order by raising the following grounds of appeal: 1) “On the facts and in the circumstances of the case and in law, the Ld.CIT (A) erred in deleting the addition of rs. 2,37,63,659/- made on account of unexplained purchases and directing the AO to tax 10% of the bogus purchases as the income escaped tax ignoring the fact that the purchase parties are included in the list of suspicious and/or hawala dealers provided by the Sales Tax Department.
2) On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in deleting the addition of Rs. 2,37,63,659/- made on account of unexplained purchases ignoring the fact that the notices issued to the purchases parties u/s 133(6) of the Act were received back unserved.
3) On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in deleting the addition of Rs. 2,37,63,659/- made on account of unexplained purchases ignoring the fact that the onus lies on assessee to produce the concerned parties which assessee failed to do.
4) The appellant prays that the order of the CIT (A) be set aside and matter may be decided according to law. The Appellant craves leave to amend or alter any ground or add new ground which may be necessary.”
The revenue has challenged the action of the Ld. CIT (A) of restricting the addition to 10% of the total bogus purchases made by the assessee during the financial year relevant to the assessment year under consideration. The revenue has challenged the impugned order mainly on the ground that the order is contrary to the evidence on record and against the settled principles of law. Since, we have upheld the order of the Ld. CIT (A) in assessee’s appeal, the revenue’s appeal has become infructuous. Hence, we dismiss the appeal of the revenue being infructuous.
ITA No. 3009/Mum/2015 (A.Y. 2010-11)
The facts of the present case and the issue involved in this appeal are identical to the assesee’s appeal for the A.Y. 2009-10 except the amount of addition made by the AO. The AO had made addition of Rs. 1,50,61,337/- on account of bogus purchase made during the assessment year under consideration. In appeal the Ld. CIT(A) restricted the addition to 10% of the total purchase. Since, we have dismissed the appeal filed the assessee on identical grounds for the assessment year 2009-10 and upheld the order passed by the Ld. CIT(A), on the same lines we also dismiss the present appeal of the assessee and uphold the order passed by the Ld. CIT(A) restricting the addition to 10% of the total amount of bogus purchases made during the assessment year under consideration.
ITA No. 4206/Mum/2015 (A.Y. 2010-11)
The grounds of appeal filed by the revenue in this are identical to the grounds of appeal filed against the order of the Ld. CIT (A) pertaining to the assessment year 2009-10 in assessee’s own case. The revenue has challenged the order passed by the Ld. CIT(A) restricting the addition to 10% of the total bogus purchases made by the assessee. Since, we have dismissed the appeal of the revenue pertaining to A.Y. 2009-10 being infructuous and since the grounds are identical to the present appeal, we also dismiss the present appeal filed by the department being infructuous.
ITA No. 3012/Mum/2015 (A.Y. 2011-12)
The facts of the present case and the issues involved in this appeal are identical to the assesee’s appeal for the A.Y. 2009-10 and 2010-11 except the amount of addition made by the AO. The AO had made addition of Rs. 63,53,545/- on account of bogus purchase during the assessment year under consideration but in appeal, the Ld. CIT(A) restricted the addition to 10% of the total purchase. Since, we have dismissed the appeal of the assessee for the assessment years 2009-10 and 2011-12 and upheld the order passed by the Ld. CIT(A), on the same lines we also dismiss the appeal of the assessee for the A.Y. 2011-12 and uphold the order passed by the Ld. CIT(A) restricting the addition to 10% of the total amount of bogus purchases.
ITA No. 4207/Mum/2015 (A.Y. 2011-12)
The grounds of appeal filed by the revenue in this case is identical to the grounds of appeal filed against the order of the Ld. CIT (A) pertaining to the assessment year 2009-10 and 2011-12 in assessee’s own case. The revenue has challenged the order passed by the Ld. CIT(A) restricting the addition to 10% of the total bogus purchases made by the assessee. Since, we have dismissed the appeal of the revenue pertaining to A.Y. 2009-10 and 2011-12 being infructuous and since the grounds raised in the present case are identical to the ground raised in the revenue’s appeals pertaining to A.Y. 2009- 10 and 2010-11, we also dismiss the present appeal of the Department being infructuous. In the result, the cross appeals filed by the assessee and the revenue for assessment years 2009-10, 2010-11 and 2011-12 are dismissed.