ACIT 29(1), MUMBAI vs. JAGDISH THAKKAR, MUMBAI

Order u/s.254(1)of the Income-tax Act,1961(Act) लेखा सद�य, राजे�� लेखा सद�य राजे�� के अनुसार के अनुसार/ PER Rajendra A.M.- लेखा सद�य लेखा सद�य राजे�� राजे�� के अनुसार के अनुसार Challenging the order dated 5.11.2014, of the CIT(A)-33, Mumbai, the Assessing Officer (AO)has filed the present appeal.The assessee, an individual, filed his return of income on 26. 09.2011,declaring total income at Rs.31.18 lacs. The AO completed the assessment, u/s. 143 (3), on 04.03.2014,determining his income at Rs.3.46 crores. 2.Effective ground of appeal is about deleting the addition made u/s. 69C of the Act in respect of bogus purchases of Rs.3.15 crores.During the assessment proceedings, the AO received pieces of information from the DGIT (INV.), Mumbai that the assessee had made purchases from the persons who were appearing in the list of hawala dealers of the Sales Tax Department.He issued notices u/s. 133(6) in order to verify the purchases made from three parties namely Harshad Ferromet (Rs.1.22 crores),Hans Enterprises (Rs.1.08 crores) and Khushal Merchantile Pvt. Ltd.(Rs.85.13 lacs).According to the AO none of the parties complied with the notices either on account of non-availability at given address or they did not attend before him. He directed the assessee to produce the parties and to furnish copies of purchase bills, corresponding sales.The assessee failed to produce the parties. However, he submitted the ledger accounts, bank statements of the parties. He argued that all the payments were made through banking channels.The AO held that mere production of purchase invoices and bank statement would not be a conclusive proof to establish the genuineness of the purchases,that though the sales against the purchase and payment for the purchase were made by cross account payee cheques yet it would not make the purchase genuine.He further observed that the assessee had purchased the goods in cash from the market and the sales bills

ITA/768/Mum/2015,A.Y. 2011-1- Jagdish Thakkar were obtained from hawala dealers.Finally, he added a sum of Rs.3.15 crores to the total income of the assessee holding that he had violated the provisions of section 69C of the Act.

3.Aggrieved by the order of the AO, the assessee preferred an appeal before the first appellate authority(FAA) and made elaborate submissions.He relied upon the cases of the JMD Computer(321 ITR 6) and Prakashchand (301 ITR 134), Babulal Borana (282 ITR 251) and Rajeev J Kalatha (ITA/1627/Mum/2012). After considering the submissions of the assessee and the assessment order, the FAA held that onus to prove the genuineness of the expenditure was on the assessee, that by furnishing the bills and delivery challans relating to the purchases of the goods he had discharged the onus,that payments for purchases were made by account payee cheques, that all the purchases were reflected in the stock reconciliation statement, that the AO himself had accepted that the assessee had made purchases,that he had not doubted the sales arising out of the export activities carried out by the assessee,that he had accepted the GP ratio shown by the assessee, that the entire purchase could not be treated as bogus, that the AO had made available the copies of the documents relied upon by him for purpose of making the addition, that it proved that there was no evidences to the effect that money given by cheque had come back to the assessee in form of cash,that the AO had made addition u/s. 69C of the Act with regard to the entire purchases made by the assessee whose names appeared in the website of MAHAVAT as suspicious dealers,that his conclusion was based on the presumption that the assessee might have paid cash to the third party out of his unexplained sources for purchasing the goods,that the AO had not disputed the fact that the assessee had made sales out of such purchases,that the payment made by account payee cheque was not also disputed by the AO. He referred to the case of Kirtilal Kalidas Jewellers Pvt. Ltd. (54 SOT 29) and Sagar Bose (56 ITD 561) and held that there was no material on record to show that the assessee had purchased material from unexplained cash available with him, that no addition could be made u/s. 69C of the Act, that it was not the case of the AO that the payments against the purchases were in cash,that all the payments had been made through account payee cheques and were debited in the bank account of the assessee. Referring to the case of Rajeev J Kalatha (supra), the FAA held that the observations of the Tribunal were applicable to the facts of the case under consideration, that the AO had merely relied upon the information received from the Sales Tax Department,that the facts of sale of goods purchased from the parties in question and payment to them through proper banking channels had been completely ignored by the AO,that the provision of section 69C would apply only where the sources of expenditure were in doubt and not the expenditure itself, that in the instant case the AO had doubted the 2

ITA/768/Mum/2015,A.Y. 2011-1- Jagdish Thakkar expenditure in the form of purchases and on the other hand he had added the income in the hands of the assessee on the ground that source of expenditure had remained unexplained, that if the expenditure itself had been rejected as non genuine then there was no question of adding any income on the ground that sources of the said expenditure had remained unexplained.He further held that no addition could be made u/s. 69C, that the basic issue was to be adjudicated as to whether any addition/disallowance was required to be made on account of the purchases from the parties from whom the assessee had purchased the goods, that the assessee should not get exemption from taxation merely because the AO had invoked the wrong provisions of the Act,that the parties from whom goods had been purchased were not available for verification qua purchases made from them,that there was no question of disallowing the entire purchases made from certain alleged bogus party,that what could be taxed in such transaction was profit element embedded and not the entire purchases. Referring to the cases of Simit P Sheth and Bholenath Koli Feb Pvt. Ltd., he held that only profit element embedded in the purchases should be added to the income of the assessee. Finally,he directed the AO to disallow 10% of the alleged bogus purchases by Rs.31.57 lacs.

5.During the course of hearing before us, the Departmental Representative (DR) supported the order of the AO.The Authorised Representative (AR) stated that the provision of section 69C were not applicable. We have heard the rival submissions and perused the material before us. We find that after receiving the information about hawala dealers, the AO directed the assessee to furnish certain details,that he held that there were no evidence to hold that the purchases made by the assessee were genuine, that he invoked the provisions of section 69C of the Act and made an addition of Rs.3.51 crores to the income of the assessee,that the FAA restricted the disallow - ance to the 10% of the purchases.It is also found that the AO had not doubted sales (exports) made by the assessee,that he had accepted the book results shown by the assessee, that the payment made by the assessee through banking channels is not in doubt, that there is no evidence of making unexplained investment.Except issuing notie u/s. 133(6) to the suppliers of the goods, the AO has not made any further investigation.The assessee had produced before him the delivery challans, purchase bills and evidence of payment made through banking channels.Thus,the assessee had discharged the initial burden.It was duty of the AO to rebut the evidences produced by the assessee.But,he did not bring anything on record. In our opinion,the FAA had rightly held that the provisions of section 69C cannot be invoked for bogus purchases.In these circumstances, we are of the opinion that his order does not suffer from any legal or factual infirmity.The cases relied upon by him support the view taken by 3

ITA/768/Mum/2015,A.Y. 2011-1- Jagdish Thakkar us.Confirming the order of the FAA, we decide the effective ground of appeal against the AO. As a result, the appeal filed by the A.O. stands dismissed.