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Income Tax Appellate Tribunal, “B” BENCH, PUNE
Before: SHRI D. KARUNAKARA RAO, AM & SHRI VIKAS AWASTHY, JM
आदेश / ORDER
PER VIKAS AWASTHY, JM :
The Revenue has filed appeal against the order of Commissioner of Income Tax (Appeals)-3, Pune dated 30-10-2015 for the assessment year 2012-13. The assessee has filed cross objections supporting the order of Commissioner of Income Tax (Appeals).
The brief facts of the case as emanating from records are: The assessee is engaged in construction business. A survey action u/s. 133A of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) was carried out at the premises of the assessee on 01-08-2012. The assessee filed his return of income for the impugned assessment year on 21-09-2012 declaring total income of Rs.6,33,52,769/-. During the course of assessment proceedings, the Assessing Officer observed that the assessee had made purchases of steel Rs.81,08,514/- from M/s. Oriental Enterprises and Paver Blocks & Tiles amounting to Rs.51,62,805/- from M/s. Anand Enterprises. The Assessing Officer further observed that in assessment year 2011-12, the Assessing Officer after detailed verification and investigation had made addition @ 25% of the purchases from the same parties. The Assessing Officer made addition of 25% of the purchases made by the assessee from M/s. Oriental Enterprises and M/s. Anand Enterprises in the impugned assessment year as well.
Aggrieved by the assessment order dated 03-11-2014, the assessee filed appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) vide impugned order deleted the entire additions. Now, the Department is in appeal before the Tribunal assailing the findings of Commissioner of Income Tax (Appeals).
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The Revenue has raised following grounds of appeal assailing the findings of Commissioner of Income Tax (Appeals) : “1) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition of Rs.33,17,829/- on account of Hawala Purchases when it was proved that the material was purchased from grey market. 2) On the facts and in the circumstances of the case, the Ld. CIT(A) erred in ignoring the facts that during the survey action the assessee himself had offered 15% of purchase from Hawala Parties as additional income over and above his regular income for A.Y. 2011-12. 3) On the facts and in the circumstances of the case, the Ld. CIT(A) ought to have appreciated the observation of the Hon’ble ITAT, Ahmedabad in the case of Vijay Proteins Ltd. that such profit from fictitious purchases where material is actually received can be estimated @ 25% of the purchases price of the fictitious purchases. 4) The appellant craves leave to add, alter or amend any or all the grounds of appeal.”
Dr. Vivek Aggarwal representing the Department submitted that the assessee had purchased construction material from M/s. Oriental Enterprises and M/s. Anand Enterprises. Both these firms were blacklisted being „Hawala Dealers‟ by the Sales Tax Department of the Government of Maharashtra. In assessment year 2011-12, the assessee offered 15% of the purchases made from aforesaid parties over and above the regular income. However, the Assessing Officer made addition of 25% by following the order of Ahmedabad Bench of the Tribunal in the case of Vijay Proteins Ltd. in ITA No.1998/Ahd/1994 for assessment year 1991-92. The assessee carried the matter in appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) reduced the addition to 15%, as was offered by the assessee. Against the order of Commissioner of Income Tax (Appeals) no appeal was filed by the Department on account of low tax effect. In the assessment year under appeal i.e. assessment year 2012-13 the assessee did not offer any additional income. The Assessing Officer made addition of 25% of the purchases made from suspicious dealers. In first appeal the Commissioner
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of Income Tax (Appeals) deleted the entire addition. The ld. DR submitted that a perusal of the impugned order would show that no reason whatsoever has been given by the Commissioner of Income Tax (Appeals) in deleting the addition. The Commissioner of Income Tax (Appeals) has merely stated that it has followed the decision in assessee‟s own case for assessment year 2011-12. The ld. DR asserted that the assessee has made bogus purchases from suspicious dealers. The assessee has failed to rebut the findings of Assessing Officer. The Hon‟ble Gujarat High Court in the case of N.K. Industries Vs. DCIT reported as 392 CTR 354 confirmed addition @ 25% of the bogus purchases from suspicious dealers. The ld. DR prayed for setting aside the findings of Commissioner of Income Tax (Appeals) and confirming the findings of Assessing Officer.
Shri M.D. Khustate appearing on behalf of the assessee has filed detailed written submissions. The same are reproduced as under : “ The respondent assessee Sunil Shivajirao Bhosale, proprietor of M/s. Krishnai Construction Company, Pune is engaged in the business of undertaking Civil construction contracts, like construction of Roads, bridges and infrastructure related construction works. I am mainly working for Government and semi Government Authorities like Public Works Department, Pune Municipal Corporation, Pimpri Chinchwad Municipal Corporation, Maharashtra Industrial Development Corporation etc. I have filed my return of Income for A.Y. 2012-13 on 21st September 2012 declaring total Income of Rs.6,33,52,769/- (Including that of Rs.2,22,99,837/- declared for the financial year 2011-12 during the course of survey carried out of 3rd August 2012). The case was assessed under section 143(3) of Income Tax Act, 1961. During the course of Assessment proceedings, details of the purchase of steel worth Rs. 81,08,514/- from M/s. Oriental Enterprises and purchase of paving blocks, RCC covers and Rough Shahabad Tiles of Rs.51,62,805/- from M/s. Anand Enterprises, being purchases from suspicious parties as declared by Sales Tax Department, were called for. The purchases were made in the regular course of business and VAT as charged by the suppliers as per the provisions of the Maharashtra Value Added Tax has also been paid. It appears that both the above referred suppliers have not discharged their liability of VAT as per the provisions of the Maharashtra Value Added Tax Act. As such, the Sales Tax Department of Maharashtra have declared both the parties as 'Suspicious dealers'. On the basis of the list of such suspicious dealers received from the Sales Tax Department, while completing the assessment, the Assessing officer has made an
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addition of Rs.33,17,829/- being 25% of purchases from M/s. Oriental Enterprises and M/s. Anand Enterprises. No statement was provided nor cross-examination was carried out. The material has actually been purchased and received by us. The same has been duly recorded as per the laid down system in our records and has been consumed in execution of works contracts received by us. The extract of ledger accounts of M/s. Oriental Enterprises and M/s Anand Enterprises along with copies of bills of purchases, goods receipt notes and bank statements confirming the payment through banking channels have been submitted during the course of Assessment proceedings. The submission has been verified and accepted by the learned assessing officer. Krishnai Construction Company is executing contracts of construction of Roads, Bridges and Infrastructure works for Government and Semi- Government authorities. As such the entire sales are reconciled with Tax Deduction at Source. The quantitative details of purchases and consumption of steel, paver blocks and Rough Shahabad tiles have been submitted during the course of the Assessment proceedings. The certificates confirming consumption of the material during the financial year 2011-12 issued by the independent Chartered Engineers appointed by the contractee, on which basis the bills are processed, have also been submitted during the course of the Assessment Proceedings. The submission has been verified and accepted by the learned assessing officer. Hence as held by Hon. Mumbai bench of Tribunal in M/s. Bassein Drugs Limited Vis ITO, the consumption of quantity of material purchased from M/s. Oriental Enterprises and M/s. Anand Enterprises cannot be doubted. The facts in the case of CIT v/s Nikunj Eximp Enterprises Pvt. Ltd. are very much similar to our case. In this case Hon'ble Bombay High court has upheld the decision of Hon'ble Tribunal of deleting the addition made on account of purchase from suspicious parties. Even as per the provisions of Section 44 AD, of the Income Tax Act 1961, applicable to the assesses engaged in the business of civil construction or supply of labour for civil construction, whose gross receipts does not exceed Rupees Sixty lacs for the financial .year 2011-12, the deemed net profit is 8%. Your honour will appreciate the fact that with increase in turnover, the net profit ratio is bound to decrease. This is because of the facts that for executing the contracts of larger values, we have to be more competitive. This is quiet clear from the facts that we have to quote tenders below the base prices in order to survive in the competition and avail the tenders. Similarly, overhead expenses goes up sharply when we increase the turnover (Employment of technical personnel with high salaries, wastage/leakages due to lack of personal attendance at all levels, heavy investments in machineries and other fixed assets results in disproportionate rise in operational costs). As such net profit offered by us for AY.2012-13 @ 13.92% is very much reasonable. Hon. Income Tax Settlement Commission, Additional Bench II, Mumbai has also upheld the view in the case of M/s. Bhavsar Construction Company in its judgment dated 23rd Jan. 2014. Sir, Survey u/s.133 A of the Income Tax act 1961 was carried out at our business premises during the period 01st Aug. 2012 to 3rd Aug. 2012. In order to buy peace of mind & avoid protracted litigation, I have offered additional income of Rs. 7,01,69,218.00 for taxation over and above the regular Income in the course of survey for three financial years as under-
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Sr. F.Y. Additional income Offered Rs. 01. 2010-11 18012453.00 02. 2011-12 22299837.00 03. 2012-13 29856928.00 Total 70169218.00
I have included above mentioned additional income in my returns of Income of the respective Assessment years and have also paid Taxes due thereon along with interest. Even if the declaration of Rs.2,22,99,837/- is excluded from the net profit for Assessment Year 2012-13 the net profit works out to 9% and which is on higher side. Even during the course of survey no incriminating material was found to show that M/s. Krishnai Construction Company was involved in accommodation entries. No excess cash was found at the premises of the respondent. Proper books of accounts are maintained which has been accepted by the learned assessing officer in his assessment order. The goods purchased and material consumed have been entered in the books. The disclosure was made to buy peace of mind and to avoid protracted litigation and was not based on un- accounted purchase, projection, stock unearthed by the Assessing Officer. The fact of declaration of M/s. Oriental Enterprises and M/s. Anand Enterprises as suspicious dealers by the Sales Tax Department first came of our knowledge at much later date in the course of proceedings in response to notice dated 10th October 2012 of the Sales Tax Department. In view of the facts, the declaration of Rs.35,00,011/- in respect of purchases from M/s. Oriental Enterprises and M/s. Anand Enterprises during the financial year 2010 -11 cannot be co-related with them being declared as suspicious dealers at a later date. And no addition can be made on those grounds during AY.2012-13. The fact has been considered by Hon. Commissioner of Income Tax Appeals while deciding the Appeal. While completing the assessment, the learned Assessing officer has made an addition of Rs.33,17,829/- being 25 % of total purchases from the suspicious parties. Aggrieved by the addition, I have preferred Appeal with Hon. Commissioner of Income Tax, Appeals -3, Pune. Hon. Commissioner of Income Tax Appeals 3, Pune has considered the facts that the purchases from M/s. Oriental Enterprises and M/s. Anand Enterprises were supported with purchase bills, Goods receipt notes and payments through Bank channel. Similarly quantitative consumption of Goods in execution of construction contracts was confirmed with the certification by independent professional persons - Chartered Engineers appointed by the contractees. Views taken by Hon'ble Pune bench in the case of Ensemble Infrastructure (I) v/s. Assessee and Hon. ITA Mumbai in the case of DCIT v/s. Rajiv G. Kalathil were considered and the addition made by the assessing officer has been deleted stating that the Assessing Officer has not brought any evidence on record to uphold the addition on account of bogus purchase. In the case of M/s. Chhabi Electricals Pvt. Ltd. Vs. Deputy Commissioner of Income Tax, ITA No. 795/Pune/2014, Hon'ble
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Tribunal bench held that where the assessee has established the trial of goods purchased to the final consumption, there is no merit in the addition made by the assessing officer. In the case of Maa Saraswati Steel Industries Vs. The Income Tax Officer ITA No.1670/1671/Pun/2016, Hon'ble Pune Tribunal have deleted the addition as the inwards record of goods purchases and its consumption was on record. In the light of the above submission, judicial decisions, is most humbly prayed that the decision of Hon. Commissioner of Income Tax Appeals -3, Pune of deleting the addition of Rs.33,17,829/- on account of purchase from suspicious parties be upheld.”
We have heard the submissions made by the ld. DR and have gone through the written submissions filed on behalf of the assessee. A perusal of the impugned order shows that the Commissioner of Income Tax (Appeals) while dealing with this issue has merely reproduced the entire written submissions of the assessee and allowed this ground of appeal by concluding as under : “3.4 The issue related to addition on account of purchase of steel from M/s. Oriental Enterprises and paver block & tile from M/s. Anand Enterprises being similar, the above decision in appellant’s case for A.Y. 2011-12 on identical issue is followed and accordingly, ground of appeal no. 1 is allowed.”
We observe that the findings of Commissioner of Income Tax (Appeals) are obscure. The Commissioner of Income Tax (Appeals) has mechanically followed the order of predecessor for assessment year 2011-12 in assessee‟s own case. The Commissioner of Income Tax (Appeals) has not even bothered to verify whether the facts in assessment year under appeal are at par with the facts in assessment year 2011-12. Under such circumstances we deem it appropriate to remit this issue back to the file of Commissioner of Income Tax (Appeals) for fresh adjudication. The Commissioner of Income Tax (Appeals) is directed to pass speaking order after affording opportunity of hearing to the assessee, in accordance
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with law. Accordingly, the impugned order is set aside and the appeal of the Revenue is allowed for statistical purpose.
The cross objections filed by the assessee are in support of the order of Commissioner of Income Tax (Appeals). Since, we set aside the order of Commissioner of Income Tax (Appeals) the cross objections filed by the assessee are dismissed.
In the result, the appeal of the Revenue is allowed for statistical purpose and the cross objections filed by the assessee are dismissed.
Order pronounced on Wednesday, the 10th day of January, 2018.
Sd/- Sd/- (डी. करुणाकरा राव/D. Karunakara Rao) (ववकास अवस्थी / Vikas Awasthy) ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER ऩुणे / Pune; ददनाांक / Dated : 10th January, 2018 RK आदेश की प्रयिलऱवऩ अग्रेवषि / Copy of the Order forwarded to : अऩीऱाथी / The Appellant. 1. प्रत्यथी / The Respondent. 2. आयकर आयुक्त (अऩीऱ) / The CIT(A)-3, Pune 3. 4. The Pr. CIT-2, Pune ववभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, “बी” बेंच, 5. ऩुणे / DR, ITAT, “B” Bench, Pune. गाडड फ़ाइऱ / Guard File. 6. //सत्यावऩत प्रयत // True Copy// आदेशानुसार / BY ORDER,
यनजी सधचव / Private Secretary, आयकर अऩीऱीय अधधकरण, ऩुणे / ITAT, Pune