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Income Tax Appellate Tribunal, MUMBAI BENCH “D” MUMBAI
Before: SHRI JOGINDER SINGH & SHRI N.K. PRADHAN
ORDER
PER N.K. PRADHAN, AM
This is an appeal filed by the assessee. The relevant assessment year is 2010-11. The appeal is directed against the order Commissioner (Appeals) – 17, Mumbai and arises out of order u/s 143(3) of the Income Tax Act, 1961 (the ‘Act’).
The grounds of appeal filed by the assessee read as under:
Enhancement I. i. The learned CIT(A) erred in enhancing the income without following the mandatory provision of section 251(2) of the Income Tax Act, the order of the CIT(A) may be set aside.
II. Natural Justice i. The learned CIT(A) erred in confirming the order of the Assessing Officer without providing an opportunity for cross examination of the purchase parties statements made before the Sales Tax Authority, hence, the addition made of Rs. 62,40,000/- may be deleted. III. Addition u/s 69C of Rs. 62,40,00/- on the alleged bogus purchase i. The learned CIT(A) erred in confirming the addition of Rs. 62,40,000/- on the basis of information received from the Investigation Wing Department treating the purchases as bogus, without appreciating that the Assessee had submitted the details of bank statements showing transaction, copy of sale bills, copy of balance sheet and profit and loss account and quantitative details in the assessment proceedings, thus the addition of Rs. 62,40,000/- may be deleted. ii. The learned CIT(A) failed to appreciate that all the payments were made to the purchase parties through banking channels, sources of payment was explained. Provision of section 69C can not be applied hence, the addition of Rs. 62,40,000/- may be deleted. iii. Without prejudice to the above, when the sales are accepted as a genuine. Without purchases the sale cannot be made, hence the addition of Rs. 62,40,000/- may be deleted. IV. Enhancement of Rs. 3,12,000/- towards expenses for secure alleged bogus transaction i. The learned CIT(A) erred in enhancing the income by Rs. 3,12,000/- treating that matter of trade practices and to secure the bogus transaction has to incur some expenses, add the 5% expenses of value of bill, without giving any notice of enhancement or opportunity of the same, hence the addition of Rs. 3,12,000/- is bad in law. ii. The assessee denies the penal interest levied u/s 234B and 234C.
The learned counsel of the assessee submits that the assessee would not press ground No. 1 & 2 of this appeal. Accordingly, the above grounds of appeal are dismissed as not pressed.
We come to the 3rd ground of appeal. The Assessing Officer (A.O.) found on the basis of information received from the Investigation Wing of the Department, that the assessee was one of the beneficiaries of hawala transactions routed through 15 hawala parties. The A.O. noted that the assessee had already added purchases from the 4 hawala parties in the revised return of income filed and paid the tax. Then the A.O. asked the assessee to prove the genuineness of expenditure in the context of 13 hawala parties. In response to it, the assessee submitted before the A.O. the supporting evidences with respect to 11 parties. The A.O. observed that the assessee failed to file bills with respect to 5 parties. One may refer to para 5.4 and 5.5 of the assessment order on the above. The A.O. took into account the fact that 13 hawala parties had accepted during the course of search and seizure by the Sales Tax Department that they had not done any genuine business and had issued bogus sale bills only. The A.O. has narrated the transactions entered into by the assessee with the said 13 parties at page 5-10 of the assessment order and made an addition of Rs. 62,40,000/-.
5. Aggrieved by the order of the A.O. the assessee filed an appeal before the learned CIT(A). The learned CIT(A) observed that “in the impugned case quantitative details were not maintained and quantities in opening stock and purchases cannot be correlated with those in sales and closing stock. As there is no proof of sale being effected of the items involved, it can safely be concluded that the entire bogus purchase has to be disallowed as this is a case where the assessee had purchased bills to reduce its profits”. The learned CIT(A) agreed with the findings of the A.O. and confirmed the addition of Rs. 62,40,000/-.
5.1 The learned CIT(A) also has noted that in order to secure bogus bills one has to incur expenses which are nearly 5% of the value of the bills. As per him, the assessee has not shown such expenses in its books of accounts and therefore, necessarily such expenses might have been incurred in cash by the assessee. Therefore, the learned CIT(A) made a corresponding enhancement of income amounting to Rs. 3,12,000/- to the total income of the assessee apart from the addition made by the A.O. u/s 69C of the Act.
Before us, the learned counsel of the assessee files a paper book containing inter-alia (i) return of income and computation of total income, (ii) annual accounts for year ended 31.03.2010, (iii) audit report for year ended 31.03.2010 and (iv) details of purchase submitted before A.O. along with ledger accounts, purchase bills, purchases order, goods receipts note, inward quality control report and bank statements. It is stated by him that the above documents were filed before the A.O. Also the learned counsel files a copy of (i) letter dated 08.04.2014 filed before CIT(A), (ii) letter dated 10.06.2014 filed before CIT(A), (iii) letter dated 13.06.2014 filed before CIT(A) under Rule 46A for additional evidence and (iv) letter dated 17.03.2015 filed before CIT(A).
Per contra, the learned DR relies on the order of the learned CIT(A). He submits that the assessee has shown the bogus purchases to suppress the profits .
We have heard the rival submissions and perused the relevant material on record. We find that the A.O. has exclusively relied on the information received from the Sales Tax Department (Investigation Wing), Mumbai without making further verification / examination. For better appreciation, we extract below the transactions narrated by the A.O. in five cases:
“ Shree Sai Trading Co. : As per the information received from the Investigation Wing of the Department, the assessee was one of the beneficiaries of hawala transactions totalling to Rs. 3,12,000/- routed through this hawala party having TIN No. 27660660931V and PAN No. ATQPP8547E. This fact was confirmed during the course of search proceedings by the Sales Tax Department, Mumbai. Therefore, the assessee has failed to prove the genuineness of transaction of Rs. 3,12,000/- with M/s. Shree Sai Trading Co.
Hermitage Trading Company (Pvt. Ltd.): As per the information received from the Investigation Wing of the Department, the assessee was one of the beneficiaries of hawala transactions totalling to Rs. 3,12,000/- routed through this hawala party having TIN No. 27810672925V and PAN No. AACCH0763L. This fact was confirmed during the course of search proceedings by the Sales Tax Department, Mumbai. Therefore, the assessee has failed to prove the genuineness of transaction of Rs. 3,12,000/- with M/s Hermitage Trading Company (Pvt.) Ltd. Polsons Sales Agency Pvt. Ltd. : As the assessee has suo motu considered these hawala parties by adding purchases in its revised return of income stating that the purchases from these parties could not be substantiated, therefore, the remaining purchases of Rs. 6,24,000/- made by the assessee with this party as per the information received from the Investigation Wing of the Department are also held as non-genuine purchases.
Balaji Marketing Pvt. Ltd.: As per the information received from the Investigation Wing of the Department, the assessee was one of the beneficiaries of hawala transactions totalling to Rs. 6,24,000/- routed through this hawala party having TIN No. 27760147649V and PAN No. AACCB5252E. This fact was confirmed during the course of search proceedings by the Sales Tax Department, Mumbai. During the course f statement of Shri Mahendra Dhabalia, Director / partner of M/s. Palson Sales Agency Pvt. Ltd., Purvi Sales Agency Pvt. Ltd., Volcano Trading Pvt. Ltd., Balaji Marketing Pvt. Ltd., Park Distributors Pvt. Ltd., Radhe Economical Services Pvt. Ltd., Shivam Corporation, Adept Agency Deep Enterprises, etc. recorded on oath under section 14 of the Maharashtra Value Added Tax Act, 2002 on 28.02.2012, it was stated by him that he used to issue only sales invoices to the company who approached him for invoices of his companies. He further stated that he used to give them invoices at commission of 5% of the bill amount and has introduced bogus purchase bills and typed these invoices in his office. Further, these purchase invoices are given to him by Mr. Arjun Singh, Jubban Singh & Anirudh Vyas. He also stated that he had never dealt in any goods and his sales invoices are not supported with any goods. Thus, in view of the statement of Shri Mahendra Dhabalia, it is evident that the assessee has failed to prove the genuineness of transaction of Rs. 6,24,000/- with M/s. Balaji Marketing Pvt. Ltd.
Volcano Trading Pvt. Ltd. : As per the information received from the Investigation Wing of the Department, the assessee was one of the beneficiaries of hawala transactions totalling to Rs. 7,80,000/- routed through this hawala party having TIN No. 27410150218V and PAN No. AABCV9655L. This fact was confirmed during the course of search proceedings by the Sales Tax Department, Mumbai. During the course of stataement of Shri Mahendra Dhabalia, Director / partner of M/s. Palson Sales Agency Pvt. Ltd., Purvi Sales Agency Pvt. Ltd., Volcano Trading Pvt. Ltd., Balaji Marketing Pvt. Ltd., Park Distributors Pvt. Ltd., Radhe Economical Services Pvt. Ltd., Shivam Corporation, Adept Agency Deep Enterprises, etc. recorded on oath under section 14 of the Maharashtra Value Added Tax Act, 2002 on 28.02.2012, it was stated by him that he used to issue only sales invoices to the company who approaches him for invoices of his companies. He further stated that he used to give them invoices at commission of 5% of the bill amount and has introduced bogus purchase bills and typed these invoices in his office. Further, these purchase invoices are given to him by Mr. Arjun Singh, Jubban Singh & Anirudh Vyas. He also stated that he has never dealt in any goods and his sales invoices are not supported with any goods. Thus, in view of the statement of Shri Mahendra Dhabalia, it is evident that the assessee has failed to prove the genuineness of transaction of Rs. 7,80,000/- with M/s. Volcano Trading Pvt. Ltd. ”
8.1 As can be seen from the above, the A.O. has not gone beyond the findings of the Sales Tax Department. In Income-tax proceedings, there is extensive use of oral examination of witness or the assessee to ascertain and establish facts. Oral examination provides information, confirmation or contradiction useful in these proceedings. The statement is recorded in oath. The witness is obliged to state the truth and if he makes a false statement he is punishable for perjury. The assessee or the department, as the case may be, can cross-examine the witness to test the truth of his statement. In State of Kerala vs. K.T. Shaduli Grocery Dealer AIR 1977 SC 1627, the Hon'ble Supreme Court recognised the importance of oral evidence by holding that the opportunity to prove the correctness or completeness of the return necessarily carry with it the right to examine the witnesses and that includes equally the right to cross – examine witnesses. At least in the cases where details were filed by the assessee (para 5.4 and 5.5 of the assessment order), the A.O. could have examined the witness. The A.O. has failed to do so.
8.2 The issue of bogus purchase arose before the Hon'ble Gujarat High Court in CIT vs. Simit P. Sheth (2013) 38 taxmann.com 385 (Guj). We refer to the above case for guidance. In that case, the assessee was engaged in the business of trading in steel on wholesale basis. The A.O. having found that some of alleged suppliers of steel to assessee had not supplied steel to assessee but had only provided sale bills, held that purchases made from said parties were bogus. He, accordingly added the entire amount of purchases to gross profit of the assessee. In appeal the Commissioner (Appeals) having found that the assessee had indeed made purchases, though not from named parties but other parties from grey market, sustained addition to the extent of 30% of purchase cost as probable profit of the assessee. The Tribunal, however, sustained addition to the extent of 12.5%. In further appeal the Hon'ble High Court held that since purchases were not bogus but were made from parties other than those mentioned in the books of account, only profit element embedded in such purchases could be added to assessee’s income. The decision in the case of CIT vs. Vijay M. Mistry Construction Ltd. (2013) 355 ITR 498 (Guj) and CIT vs. Bholanath Poly Fab (P) Ltd. (2013) 355 ITR 290 (Guj) was followed by the Hon'ble High Court.
8.3 In the instant appeal, the facts being similar, we have to ascertain the profit element embedded in such purchases which can be added to the income of the assessee. We find it just and fair to estimate 12.5% of the purchase cost of Rs. 62,40,000/- as the profit element and direct the A.O. to adopt the same and make disallowance.
8.4 As the enhancement of Rs. 3,12,000/- made by the learned CIT(A) is bereft of any objective yardstick as the same has been estimated @ 5% of the value of bills on the presumption that the assessee might have incurred expenditure in cash to secure bogus bills, the A.O. is directed to delete the same.
The levy of interest u/s 234B and 234C is mandatory though consequential. We order accordingly.
In the result, the appeal is partly allowed.
Order pronounced in the open Court on 19/05/2017