ARDH METAL & ALLOYS P.LTD,MUMBAI vs. ITO WD 5(1)(1), MUMBAI

This is an appeal filed the assessee challenging the order dated 5.10.2015 passed by the ld.CIT(A)-9, Mumbai for the assessment year 2009- 10 in which the assessee has raised the issue of upholding addition of Rs.45,91,475/-on account of average GP of last four years in respect of purchases from two parties by treating them as bogus on the basis of 2 information published on the website of Sales Tax Department of Government of Maharashtra without appreciating the fact that purchases were supported with documentary evidences and were actually made.

Facts relating to the issue are that the assessee filed return of income on 19.9.2009 declaring NIL income. The said return was processed under section 143(1) of the Act. Thereafter, the AO received information from the Sales Tax Department of Government of Maharashtra and also from the Investigation Wing of Income Tax Department, Mumbai that during the financial year 2008-09 the assessee made purchases amounting to Rs.51,14,840/- from the various parties whose named were on the list of Hawala Parties as published by the Sales Tax Department, Government of Maharashtra. During the year, the assessee made purchases from these parties namely Maharashtra Impex of Rs.12,06,505/- and from M/s D N Enterprises of Rs.39,08,335/- aggregating to Rs.51,14,840/-. On the basis of information received from the MVAT department , the AO reopened the assessment of the assessee u/s 148 of the Act. It is pertinent to note that the assessee has been engaged in the business of manufacturing of ferrous and non-ferrous metals having factory at Turbhe, Maharashtra. The AO raised query and called upon the assessee qua these purchases which was replied by the assessee vide letter dated 7.1.2014. The assessee submitted before the AO that the materials were purchased from these parties and the goods were in fact received, payment were made from the 3 current accounts maintained with IDBI Bank and State Bank of India. Copies of bank statements evidencing the payments were also furnished. Besides, suppliers have also confirmed the purchases and payments having been made through banking channels by the assessee . It was further submitted before the AO that raw material from these two parties were in fact consumed in the manufacturing of copper cadmium rods by the process of melting, rolling and drawing carried on at our factory. Out of the 1,741/- kgs of used cadmium copper components, 1,548 kgs of copper cadmium rods were produced which were sold to M/s Lalit Pipes and Pipes Ltd on 5.2.2009 vide invoice No. 875 and 877 for a total consideration of Rs.45,82,893/-. It was also stated that the raw materials received from these parties were duly entered in excise RG23A part –I register which is a quantitative record for inward entry and consumption of raw materials. The AO in order to verify the genuineness of the transactions issued notice under section 133(6) of the Act to the suppliers which were received back un-served and the assessee was informed about the same vide letter dated 20.2.2014 and also requested to explain as to why the amount of Rs.51,14,840/- should not be treated as bogus purchases by adding to the total income of the assessee. The assessee replied vide letter dated 12.3.2014 which was incorporated at page 4 in para 6 of the assessment order. The AO did not find contentions of the assessee as convincing and substantive and consequently added the entire purchases from these parties of Rs.51,14,840/- to the total income of the 4 assessee by framing the assessment u/s 143(3) r.w.s 147 of the Act assessing the income at Rs.44,16,600/-. 3. Being aggrieved by the order of AO , the assessee preferred an appeal before the ld. CIT(A) challenging the order of assessment. The ld FAA after considering the submissions and contentions of the assessee came to the conclusion that the addition made by the AO was without sufficient material as the assessee has maintained proper books of account in which the entries of receipt of material were recorded, payment through banking channels by account payee cheques, proper stock and excise register qua receipt of materials, issue for consumption in the manufacturing, resultant finished product and its final sale were duly recorded. However, despite holding as such the ld FAA applied average GP @ 3.47% based on earlier four years to the entire sales of Rs.13,23,19,187/- restricting the addition to Rs.45,91,475/- by observing and holding as under : “7.16. Thus, Keeping in view the present facts of the case and applying the ratio of the decision of Hon'ble jurisdictional IT AT of Mumbai as well as jurisdictional High Court of Mumbai where various legal issues arising out of additions of similar nature have been thread-bare discussed and also other decisions of Hon'ble ITAT/High Courts/ Supreme Court, it will be difficult to sustain the additions made by the AO only on the ground the suppliers of the materials/goods were defaulters in not paying VAT to the Sale Tax Department government of Maharashtra or the suspicious dealers were not produced be the AO during the assessment proceedings. The claim of the appellant is that they have made the entire payment through banking channel. In fact, when the appellant directed, they have produced chart of such payment through banking channel. Further AO has failed to substantiate that the assessee made payment through banking channel received it back in cash. If the suppliers have not paid V AT charges to the Government of Maharashtra, but taken the same from the 5 purchasers (here assessee), such differential amount needs to be added in the hands of dealers and they are liable for any action by the Govt. of Maharashtra for their such defaults. Under the Income Tax Act, 1961 what can be taxed is the real income. Even thethe transaction is not verifiable, what is taxable is the income component and not the entire transaction amount I further find that in many such cases, the additions are made based on, the GP/NP ratio wherever there is any abnormal fall in GP/NP ratio during such assessment year when such allegations comes to his/her notice and no satisfactory replied are provided by the assessee to the AO , if they ae asked to substantiate the same by the AO. Hence, the addition of purchases as referred above cannot be made in the present case, in the manner as it has been made. In view of the above facts and circumstances of the case, the appellant was directed to give GP/NP ratio of earlier assessment years for comparison and to check any probable and possible leakage of revenue arising out of such allegations. In pursuance to such directions, the Ld.AR of the appellant filed GP INP ratio of earlier years, which has been considered and taken into account. I have further compared the GP ratio of the present financial year after taking into consideration the additions made by the AO and find that the same will lead to a very high GP ratio which may not be possible in the business activity in which the assessee is engaged. I further compared the GP ratio of the present financial year with the other previous financial years and find that there is a slight shortfall in the present financial year. Ardh Metal and Alloys Private Limited AY 2009-2010 Gross Profit and Net Profit Ratio before and after addition A.Y Turnover Gross Profit Net GP NP GP After GP ratio before Profit Ratio Ratio addition after addition addition 2005-06 87401241 3340290 1960702 3.82 2.24 - - 2006-07 122467975 2561544 1765113 2.09 1.44 - - 2007-08 187983533 5319213 3077508 2.83 1.64 - - 2008-09 237703383 12431952 3393925 5.23 1.43 - - 2009-10 132319187 266836 - 0.20 - 5381676 4.07 6 The G.P. ratio for A.Y.2009-10 is 0.2% which is 3.47% less than the average GP of earlier four assessment years. In absolute terms, this amount is calculated at Rs.45,91,475/- Keeping in all the facts and circumstances of the case as well as various judicial pronouncements including the decisions of jurisdictional IT AT as well as High Court of Mumbai which are binding, I feel that the entire addition made by the AO for the reasons stated in the assessment order cannot be sustained. However, I am further of the view that in order to check possible revenue leakage certain additions need to be sustained in the present case in the given facts and circumstances and that could be on the basis of comparative analysis of GP of the present year compared to earlier year. Accordingly, an amount of Rs.45,91,475/- is sustained and the balance amount of Rs.5,23,365/- -(Rs.51,14,840/ Rs.45,91,475/-) is directed to be deleted.”

The ld. AR vehemently submitted before us that the ld.CIT(A) did not point out any defects in the books of account and even recorded the findings and observed that the AO was justified in making disallowance without reference to specific defects in the books of account specially when the materials received by the assessee was duly entered in the books of account, its payment through account payee cheques, proper entries of raw materials received in the stock register, excise register, issue for consumption in the manufacturing , utilization of material in the finished product which was finally sold by the assessee and evidenced with the sales bills and receipt of consideration. However, despite of all these findings, the ld.CIT(A) went to apply average GP at the rate of 3.47% on the basis of preceding four years on the entire sales of Rs Rs.13,23,19,187/- thereby reducing the addition to Rs.45,91,475/- as against the amount of Rs.51,14,840/- made by the AO. The ld. AR also argued that the GP rate 7 could not be applied until and unless the books of account are rejected on the basis of specific defects due to which the assessment of income became impossible. The second argument advanced by the ld.AR with regard to the application of average GP rate at the rate of 3.47% was that the if at all GP has to applied , it could be applied on the tented sales of Rs.45,82,892/- from the so called alleged bogus purchases and not on the entire sales made by the assessee. The ld. AR relied on the various decisions in defense of his arguments and finally prayed that the addition deserved to be deleted as being without any basis and reasoning and without listing out any defects in the books of account of the assessee or any other material brought by the AO to corroborate the said addition. The ld. AR submitted that the purchases from the said two parties, receipt of materials, its consumption in the manufacturing of copper rods and sales of the cooper rods were proved by the assessee by producing the books of accounts before the AO and finally prayed that addition made should be deleted or in the alternative if at all the GP rate was to be applied , then should be applied to the tented sales only and not the entire sales of the assessee made during the year.

The ld. DR on the other hand, relied heavily on the order of FAA and submitted that the assessee was engaged in availing accommodation entries from two parties who were declared hawala dealers by the Sales Tax Department of Government of Maharashtra and were issuing bogus bills without supplying any material practically. The ld. DR, therefore, requested 8 that the orders of the ld. CIT(A) be confirmed by dismissing the appeal of the assessee.

We have carefully considered the rival contentions of the parties and perused the material placed before us including the orders of the authorities below. We find that the assessee has made purchases from two parties namely Maharashtra Impex of Rs.12,06,505/- and from M/s D N Enterprises of Rs.39,08,335/- aggregating to Rs.51,14,840/-. It is undisputed facts that the purchases were duly entered into the books of the assessee, amount paid through banking channels, material received and consumption thereof for production of copper cadmium roads, material purchased of 1741 kgs (cadmium copper components) out of which 1,548 kgs of copper cadmium roads were manufactured and sold to M/s Lalit Pipes and Pipes Ltd on 5.2.2009 by invoice No. 875 and 877 for a sale consideration of Rs.45,82,893/-. The material received was entered in to excise register which was also accepted facts by the authorities below. The ld. CIT(A) has also recoded the finding of facts that there were no defects in the books of account maintained by the assessee and the AO was not justified in making disallowance of Rs.51,14,840/- on account of bogus purchases. However, the ld.CIT(A) chose to sustain the addition to the tune of Rs.45,91,475/- by applying the average GP of Rs. 3.47% based on four years prior to previous year under consideration to entire sales of Rs.13,23,19,187/-, which in our opinion is not correct and cannot be sustained especially when the 9 assessee proved the transactions with reference to the records maintained by the assessee showing the receipt of material, consumption of raw material, payment through banking channels, use of said materials in production and final sale of the finished product duly recorded in the books of accounts and found by the authorities below in order. At the most, fixed percentage could be applied to the tainted sales as submitted by the ld.AR before us and nothing more. In the given circumstances and facts of the case we consider it just and reasonable to restrict the addition to a 15% of the tainted purchases in order to cover the leakages of revenue or over invoicing of price to cover up the possibility of buying the materials from grey market. We are , therefore, inclined to set aside the order of the ld.CIT(A) and direct the AO to apply rate of 15% on the tainted purchases of Rs.51,14,840/- to cover up the leakage. Resultantly, the assessee gets relief of Rs.38,24,249/- and addition of Rs.7,67,226/- is sustained. The appeal of the assessee is allowed partly.

In the result, the appeal of the assessee is partly allowed.