ASST CIT 11(1)(1), MUMBAI vs. RISHABHDEV TECHNOCABLE LTD, MUMBAI

O R D E R PER MAHAVIR SINGH, JM:

This appeal by the Revenue is arising out of the order of CIT (A)-18, Mumbai in appeal No. CIT (A)-18/IT-42/DCIT-8(3)/2013-14 vide dated 14-10-14. The Assessment was framed by DCIT Circle -8(3), Mumbai for the AY 2010-11 vide his order dated 06-03-2013 u/s 144 of the Income Tax Act, 1961 (hereinafter ‘the Act’).

“1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in restricting the disallowance of the purchase of Rs. 65,65,30,470/- made from twelve entities notified as providers of accommodation bills by the Sales Tax Department to @% i.e. Rs. 1m31,30,609/- thereby granting a relief of Rs. 64,33,99,861/- ignoring the fact that the assessee failed to produce documentary evidences of purchases during the course of assessment proceedings as well in remand proceedings.” Rest of the ground Nos. 2 and 3 are argumentative, hence need not to be reproduced.

power control, instrument cables and related items. During the course of assessment proceedings, the AO received list of persons from Sale Tax Department, Maharashtra Government, who were indulging in providing bogus hawala entries and purchase/sale bills. The Sale Tax Department also provided the list of beneficiaries of such bogus purchase/sales. From scrutiny of the list of bogus purchase/sales, the Assessing Officer observed that the assessee was one of the beneficiaries of such hawala purchase bills. The following are the details of transaction relating to bogus purchase bills:-

Name of the party providing F.Y. of the A.Y. of the Amount (Rs.) Bogus Bills/ Hawala Entries transaction transaction SHREE GANESH TRADING 2009-10 2010-11 54670729/- COMPANY AKSHAT ENTERPRISES 2009-10 2010-11 76998384/- SHREYAS MARKETING 2009-10 2010-11 55018874/- AGENCY ASIT TRADERS 2009-10 2010-11 55118398/- Total 241806358/- The AO required the assessee to explain the above purchases and prove that these are genuine. The assessee explained that all the purchases are recorded in the books of account and supported by bills and vouchers. The assessee also explained that the payments in relation to these purchases are made by account payee cheques and these cheques are encashed by the respective parties. The assessee also explained that all these purchases are recorded in the sales tax returns as well as stock registers maintained by assessee. The assessee produced complete bills and vouchers and books of accounts before the Assessing Officer. It was claimed by assessee that there is no unaccounted purchases in the books of account of the assessee and all the books of account are audited by a chartered accountant and there is nothing incriminating found in the audit. But the assessing officer has not accepted the explanation of the assessee and made disallowance of bogus purchases amounting to Rs. 24,18,6,385 by observing as under:-

“At the outset, it needs to be mentioned that it is a necessary and expedient to narrate the modus operandi involved in these types of transactions which will help in arriving at judicious inference. There are three to 'four methods involved in this type of transactions. Taking into consideration the significance of this aspect the modus operandi involved in these transactions are discussed in nut shell herein under:

The person who wants to inflate his expenses to reduce the total income and there by tax liability, approaches the hawala giver. The hawala giver provides him a purchase invoice, accepts the cheque for which the bill is prepared. The cheque so obtained from the so called buyer is deposited in the account of the hawala giver then the hawala giver passes on this amount to three to four layers and ultimately cash is withdrawn from first account which is passed on to the purchaser after deducting the commission of the hawala giver. This is a raw method of accepting hawala purchase bills. In such cases total purchases being bogus, unproved and non-genuine straight way calls for disallowance on account of unproved expenses. ii) In another type involved in such transaction, is where there the person possesses the stock or goods which are not disclosed both to Income Tax Dept. or Sales Tax Dept. or any other Govt. department due to this handicap he is unable to sell the goods. In such a situation again he approaches the hawala giver and all other steps involved are identical to the same discussed earlier and therefore, repetition is avoided by reproducing the same. In such type of transactions by virtue of undeclared stock the provision of Sec 69 comes into play for bringing into tax an element of undisclosed income in the form of investment. iii) In the third type the person purchases goods from the Grey market at lower price without bills because goods available in Grey market is very cheap compared to white market. The consideration is paid in cash and to cover up this transaction the purchaser approaches the hawala giver seeking bogus purchase bill, who issues the purchase bill where in all the steps discussed in situation one are involved which are not discussed again as it will tantamount to repetition. In this type of transaction, since the-purchase consideration is paid in cash provisions of section 4OA (3) gets clearly attracted, which calls for disallowance of expenditure in toto as per the prevailing statutory provisions. Further the cost of goods purchased in cash is met from undisclosed sources the provision of section 69C comes into play being unexplained expenditure. Thus on both these accounts the expenditure incurred on purchases calls for disallowance. In assessee’s case whatever be the situation the disallowance of expenditure incurred by the assessee calls for disallowance in toto. Accordingly disallowance of Rs. 24,18,06,385/- made to the total income. Penalty proceedings u/s 271 (1)(c) of the I.T. Act, 1961 are initiated separately for the default committed by the assessee within the meaning of that section.” Aggrieved assessee preferred the appeal before CIT (A), who considering the submissions of the assessee and also calling for remand report from the Assessing Officer deleted the addition by observing as under :-

“2.7……………From the facts of the present case, it is noticed that the assessee has made circular purchases and dales with 12 parties as declared in sales-tax return. The genuineness of purchases and sales were not proved before the A.O. and even during the appellate proceedings. The A.O. has treated the purchases as bogus but accepted the sales and gross profit declared in the return of income. Now question arise whether there can be any sales without purchases. The answer is always in the negative that no sales can be made without purchases. The situation can be that purchases may not be made from the parties from whom invoices have been obtained as mentioned by the AO in the assessment order. But when the sales are accepted then the whole purchases cannot be disallowed as held by various courts stated above. As per the decision of the Hon’ble Gujarat High Court in the case of. ClT Vs. Bholanath Polyfab Pvt. Ltd., it is clearly held that only the profit element embedded in purchases would be subject to tax and not the entire amount. Now the question arises how to determine the profit element. For this purpose, the total turnover and percentage of gross profit for the earlier 3 years was obtained from the AR of the appellant It is noticed that in earlier years, the main business of the assessee was manufacturing and dealership of all kinds of industrial power control instruments and related items but in the year under consideration it has shown trading of rs.65,65,30,470/out of the total purchases at rs.67,34,02,306/-. The gross profit shown in the year under consideration was at 5.71% as against 8.77% in the preceding year. From the perusal of the submissions made by the AR of the appellant, it is noticed that the contention of the appellant was correct that in the earlier years the main business of the assessee was manufacturing and in the year under consideration the major activity is of trading. The gross profit rate was also decreasing every year and in the year under consideration it has decreased to 3%. It is also an established fact that the gross profit of trading activity is lower than the manufacturing activity. The AR of the appellant has also offered that additional gross profit @ 32 % of the turnover can be added back. But, there is no reasonableness in adopting this 1/2% GP. Keeping in view the principle of natural justice and the decision of the Hon'ble courts on this issue, only the reasonable profit has to be added back on the purchases made from the hawala parties. The gross profit has been reduced from 8.77% to 5.71% during the year under consideration which is explained as major manufacturing activity in the last year and major part of the trading activity if the year under consideration." Keeping in view of these facts and circumstances, I am of the view that 2% of the purchases made from the hawala parties amounting to rs. 65,65,30,470/- which works out rs.1, 31, 30 ,609/is fair and reasonable hence, upheld and the balance addition made is deleted. Ground of appeal is partly allowed.” Aggrieved against the order of CIT (A) in restricting the disallowance of bogus purchases at 2% being profit for purchases, made by assessee from Grey Market, the Revenue came in second appeal before the Tribunal.

proceedings nor during remand proceedings objected to sales made by assessee. In that eventuality it is imperative on our part to hold that there must be purchases. Whether the purchases are from Grey Market or whatever the assessee has made purchases although payments are made to hawala dealers. In that eventuality it is to be seen whether the payments are recorded in the books of account or not. This factum is not denied by Revenue, rather the assessee has proved that the payments are made through accounts payee cheques and purchases are entered in its books of account. Once the assessee is able to prove that the purchases were made only in alternative way, the revenue is to estimate the excess profit at a rate. Here, our difference is that 2% is reasonable or some higher profit is to be estimated. We are of the view that the assessee’s gross profit varies from 5% to 8.77%, but these purchases are from Grey Market and its profit element is little higher and accordingly, we direct the Assessing Officer to make further addition of 3 % of the bogus purchases and accordingly estimate the income. We direct the Assessing Officer accordingly. This issue of Revenue’s appeal is partly allowed.

Whether on the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in not appreciating the fact that the expenditure claimed to have been incurred by the assessee under the head ‘preliminary expenses written off’ are not covered by the qualifying provisions of Sec. 35D (1) since it was not incurred in respect of commencement of any business or for purpose of extension of business or for setting up a new unit.?

typing and printing. According to him these are covered as allowable as 1/5th of the total expenses u/s 35D (2) of the Act by allowing in five successive previous years. He allowed by observing in Para 3.4 of appeal order is as under:-

“ 3.4 From the plain reading of this Section 35D (2) (c) (iv), where the assessee is a company and the expenditure incurred in connection with the public issue of shares in or debentures of the company, the commission, brokerage and other charges for drafting, typing and printing are covered and the 115m amount of the total expenses is allowable in five successive previous years. Since the assessee has claimed deduction as per the provisions of Section 35D (2) by debiting 1/5th of the total expenditure incurred on public subscription of shares is covered by these provisions. Therefore, in 'my view, the appellant has rightly claimed 1/5“" deduction of rs.1,12,09,210/u/s 350(2). Thus, the addition made by the AO is not sustainable, hence, deleted. Ground of appeal is allowed.” Aggrieved, now Revenue is in second appeal before Tribunal.

7. We have heard the rival contentions on this issue and gone through the facts and circumstances of the case. After hearing learned senior DR and going through the facts of the case, we find that the details regarding the public issue expenses in respect of commission, brokerage, other charges for drafting, typing and printing are not available in the records of the revenue i.e. in the order of the AO or the CIT (A). Hence, we are of the view that none of the authorities below have examined this issue in proper perspective. Accordingly, we restore this issue to the file of the Assessing Officer for fresh examination after calling for details of these expenses and accordingly, decide the same as per law.