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Income Tax Appellate Tribunal, “E” Bench, Mumbai
O R D E R Per B.R. Baskaran (AM) :-
The appeal filed by the revenue is directed against the order dated 29-05- 2015 passed by Ld CIT(A)-37, Mumbai and it relates to the assessment year 2010-11. The assessee is aggrieved by the decision of Ld CIT(A) in granting partial relief to the assessee in respect of addition of bogus purchases.
2. The assessee is engaged in the business of building development. Consequent to the information relating to hawala dealers received from the Sales tax department, the assessing officer identified 15 such parties, from whom the assessee had purchased various types of materials for an amount aggregating to Rs.14.30 crores. The assessing officer issued notices u/s 133(6) of the Act to several parties. Some parties did not reply and other notices were returned un-served by the postal department. Hence the AO asked the assessee to prove the genuineness of purchases made from 15 parties. The assessee
2 Shree Ganesh Developers furnished ledger account copies and also affidavit obtained from four parties. Since the affidavits were not notarized, the AO rejected them. The assessee also submitted that the payments were made to the parties by way of account payee cheques. The AO was not convinced with the explanations of the assessee and took the view that the assessee has failed to prove the genuineness of purchases. The AO also discussed principles laid down from certain case laws. Accordingly he held that the purchases made from these parties are bogus in nature and accordingly disallowed purchases of Rs.14.30 crores.
Before Ld CIT(A), the assessee furnished detailed explanations along with various evidences to prove the genuineness of purchases. It was noticed that the assessee was carrying on three projects viz., Khar Project, Panjawani Project and Sidhwani Project. The assessee was following project completion method for offering income. It is pertinent to note that all the projects were under execution and they have been completed in the subsequent periods only. Since the assessee furnished various evidences, the Ld CIT(A) called for a remand report from the AO. The assessing officer submitted the remand report, which has been extracted by Ld CIT(A) in paragraph 4.1 of the order. For the sake of convenience, we extract below the said paragraph:- 4.1 The submissions of the appellant were forwarded to the AO for verification of the factual aspect of the evidences furnished. Vide letter dated 18/05/2015, the AO submitted the remand report which stated as under: "In the above mentioned case, vide letter dt. 19/06/2014, further directions were issued to this office to verify as under: 1. As regard report on the factual aspects of the evidences as filed by the assessee:- a) In the above mentioned case the assessee has filed copy of bills and challans, ledger account, details of project-wise estimate of consumption by qualified Architect, project-wise actual consumption etc. . It is further seen from the copy of bills and challan that the alleged purchases were made for the construction of three projects namely 1. Khar Project 2. Panjawani Project & 3. Sidhwani project. The alleged purchases were debited under the head work in progress of projects respectively as the 3 Shree Ganesh Developers
constructions were not completed during the year under reference. The assessee follows the project completion method of accounting and accordingly has shown no profit from the above three projects. The Net profit of each of the projects shown in the paper book is found to be in the range of' 6 to 7% for A. Y. 2011-12 and 2012-13.
It is seen from the additional evidence filed that assessee has also - filed estimate of consumption in the projects under reference by the qualified architect which is purely of technical nature and therefor it is not possible to verify the correctness of the estimates furnished by the assessee. Further it is seen from the record that alleged purchases were from 15 parties. Out of total 15 purchase parties, Summons under section 133(6) was sent to 14 purchase parties (except one -7ain corporation) from whom purchase were made and I party from whom unsecured loan was taken on the new address furnished by the assessee. In compliance to notice, 12 purchase parties have replied to the point raised in the notice but two purchase parties viz. Neptune Trading Co. and 2. Hari Om Traders have not filed copy of their bank statement while filing the replies of notice u/s 133(6). Thus out of 14 parties, 12 parties complied the notices fully & 2 parties vizi. Neptune Trading Co. and 2. Hari Om Traders have complied partly.
As regards the enquiry through banking channels to find out whether payment has come back to the assessee by some means: In this regarda letter was issued to the bank by erstwhile ACIT-15(2), Mumbai vide letter dated 19.09.2014 calling information about the bank account details of respective payee. The bank has submitted details vide letter dated 07.11.2014 except three parties viz Neptune Trading Co., R.K. Traders and Hari Om Traders. However R.K. Traders have filed its bank statement incompliance to notice u/s 133(6).On the basis of details furnished by bank and also replied filed by the respective parties in response to the notice u/s. 133(6) of the I.T. Act, 1961 a letter dated 16.4.2015 has been issued to respective bank to further verify the veracity of bank statement filed by the suppliers of materials, calling for the bank statement of the requisite period. The same were placed on record. It is seen from the bank statement of the suppliers that their bank statements do not have any cash withdrawal after the necessary payments to the suppliers have been made. However, mere non existence of cash withdrawal is not conclusive evidence that purchase cannot be bogus.
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However Indirect nexus of payment of the said amount back to assessee cannot be ruled out, 3. The assessee has also filed confirmation of loan from JMV enterprises. Summon u/s133(6) was sent to the party, in compliance of which they have filed the detail which tally with the submission made by the assessee which was placed on the record. It is respectfully submitted that despite of compliance made by purchase parties, this facts may not be ignored that addition have been made on the basis of information received from the sales department that the name of these parties are appearing in list of hawala operators published by the sales tax department and also in information sent by DGIT(inv). Along with it Income Tax Department is making additions in all such cases of hawala operators. Therefore the same may be considered accordingly. In view of the above, your honour may take necessary action at your end and accordingly make the inferences.
The case may be accordingly decided on merits by your good self."
During the course of remand proceedings, the AO issued notices u/s 133(6) of the Act to 14 parties (out of 15 parties considered for addition). Out of the 14 parties, 12 suppliers have duly furnished all the details that were called for by the AO. Remaining two parties named M/s Neptune Trading Co. and M/s Hari Om Traders have complied the notices partly, i.e., they did not furnish their respective bank account details. The assessing officer also called for bank account details of all the parties and the respective banks also furnished the details except in the case of M/s Neptune Trading Co. and M/s Hari Om Traders. The AO examined the bank accounts of suppliers and noticed that there was no immediate withdrawal of funds from the bank accounts. The assessee had furnished a certificate obtained from the Architect to show that the purchase of materials corresponds with the estimated consumption. With regard to the same, the AO submitted that it is not possible for him to verify the same. These facts were noticed by Ld CIT(A). The first appellate authority then proceeded to consider various decisions rendered on identical issues.
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The Ld CIT(A) considered the decision rendered by Hon’ble Bombay High Court in the case of Nikunj Eximp Enterprises (P) Ltd, wherein it was held that merely because the suppliers have not appeared before the AO or CIT(A), the AO cannot conclude that the purchases were not made, particularly when the sales have not been doubted. The Ld CIT(A) also considered the decision rendered in the case of Babulal C Borana (citation not given), where in it was held that the addition could not be sustained when it was not shown that the funds have flown back to the assessee. Identical view was taken in the case of M.K. Brothers (163 ITR 249)(Guj). The Ld CIT(A) noticed that the Hon’ble Gujarat High Court has held in the case of CIT Vs. Bholanath Poly Fab Pvt Ltd (355 ITR 290) and CIT Vs. Simit P Sheth has held that the profit element involved in the alleged bogus purchases is required to be assessed. The Ld CIT(A) noticed that the Mumbai bench of Tribunal has deleted the addition relating to bogus purchases in the case of DCIT Vs. Rajeev G Kalathil (51 taxman.com 514) by holding that the addition cannot be made on suspicion.
Accordingly the Ld CIT(A) held that the essence of all these decision is that the benefit arrived by the assessee by showing purchases from bogus parties is the lowering of GP that would have been earned by the assessee had such purchases and corresponding sales were removed from the accounts, i.e., the profit so lowered shall be additional income of the assessee. Applying the above said principle, the Ld CIT(A) examined the facts of the instant case. He noticed that the 12 out of 14 parties examined by the AO have furnished all the details. Hence the Ld CIT(A) deleted the addition relating to the purchases made from the 12 parties. He noticed that two parties, viz., M/s Neptune Trading Co. and M/s Hari Om Traders have furnished the details only in part. Hence the Ld
6 Shree Ganesh Developers CIT(A) directed the AO to sustain addition to the extent of 12.5% of the purchases made from the above said parties.
The revenue is aggrieved by the decision so rendered by Ld CIT(A).
Before us, the Ld D.R strongly relied upon the order passed by the assessing officer. On the contrary, the Ld A.R strongly placed reliance on the order passed by Ld CIT(A).
We have heard rival contentions and perused the record. We notice from the order passed by Ld CIT(A) and also from the paper book furnished by the assessee that the assessee has furnished all the details available with it to prove the purchases made by it. Hence the Ld CIT(A) has called for a remand report from the assessing officer. During the remand proceedings, the assessing officer has called for various details from 14 parties. Out of the same, 12 parties have duly responded by furnishing all the details. Thereafter, the AO has called for bank accounts of those parties directly from the respective banks and he himself has given a finding that there has been no cash withdrawal after deposit of cheque issued by the assessee. This observation of the AO clearly shows that the funds have not flown back to the assessee. Even though the AO has expressed the view that this cannot be conclusive to accept the genuineness of purchases, yet we notice that the assessing officer has not brought any other material to show that the purchases were bogus or moneys have flown back to the assessee. Thus, in our view, the assessing officer could not substantiate the additions made by him.
It is pertinent to note that the assessee has furnished architect’s certificate to show the estimated consumption of materials for the project and also shown that the actual consumption corresponds to the estimate. The 7 Shree Ganesh Developers purpose of the same was to show that there was no inflation of the consumption of materials. We notice that the AO did not examine the same by simply observing that it is not possible to verify. The case of the assessee is that the actual consumption of materials corresponds to the technical estimate and hence there is no case for any inflation of consumption of materials, which would ultimately reduce the Gross profit.
The assessee has placed reliance on the decision rendered by the co- ordinate bench in the case of Ramesh Kumar & Co. Vs. ACIT (ITA No.2959/Mum/2014 dated 28.11.2014), wherein it was observed as under:- “8. We have carefully perused the orders of the lower authorities and the relevant documentary evidences brought before us. We find that the AO has made the addition as some of the suppliers of the assessee were declared Hawala dealer by the Sales tax department. This may be a good reason for making further investigation, but the AO did not make any further investigation and merely completed the assessment on suspicion. Once the assessee has brought on record the details of payments by account payee cheque, it was incumbent on the AO to have verified the payment details from the bank of the assessee and also from the bank of the suppliers to verify whether there was any immediate cash withdrawal from their account. No such exercise has been done. The Ld CIT(A) has also confirmed the addition made by the AO by going on the suspicion and the belief that the suppliers of the assessee are hawala traders. We also find that no effort has been made to verify the work done by the assessee from the Municipal Corporation of Greater Mumbai. We agree with the submissions of the Ld Counsel that if there were no purchases, the assessee could not have been in a position to complete the civil work.”
In the instant case, though the AO did not carry out verification during the course of assessment proceedings, he has carried out necessary verification during the course of remand proceedings. It is a fact that the AO has examined the documents furnished by the suppliers and also the bank accounts of the parties. It is also a fact that the AO could not find any defect in those documents and he has also seen that there was no withdrawal of money,
8 Shree Ganesh Developers meaning thereby the money has not flown back to the assessee. With regard to the consumption of materials, the assessee has furnished architect’s certificate and the same was also not examined. Thus we are of the view that the assessing officer could not find fault with the books and documents of the assessee and hence he could not have made the addition merely on the basis of information received from the Sales tax department. Hence We are of the view that the Ld CIT(A) was justified in deleting the purchases made from the 12 parties.
With regard to the remaining two parties, the Ld CIT(A) has sustained the addition to the extent of 12.5%, since they furnished the details only partially. In these two cases also, the Ld CIT(A) has taken into account the fact that construction work could not have been executed without purchase of materials and for estimating the profit, he has placed reliance on the decisions rendered by Hon’ble Gujarat High Court (referred supra). In our view, the profit so estimated by Ld CIT(A) cannot be found fault with.
In view of the foregoing discussions, we are of the view that the order passed by Ld CIT(A) does not call for any interference. Accordingly we uphold his order passed on this issue.