M/S SIGMA CARTRONS PRIVATE LIMITED,LUDHIANA vs. DCIT, LUDHIANA

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH’B’, CHANDIGARH BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA No.662/Chd/2017 Assessment Year: 2011-12

M/s Sigma Cartons Pvt. Ltd. Vs. The DCIT G.T. Road, Jugiana Central Circle-II Ludhiana Ludhiana

PAN No. AACCS2698M

(Appellant) (Respondent) Assessee By : Shri Rajiv Sharma Revenue By : Smt. Anita Sinha

Date of hearing : 04/09/2018 Date of Pronouncement : 25/09/2018

ORDER PER DR. B.R.R. KUMAR, A.M:

The present appeal has been filed by the Assessee against the order of the Ld. CIT(A)-5, Ludhiana dt. 06/02/2017.

“ That vide para-6 of the assessment order the Assessing Officer has disallowed depreciation of Rs. 33,93,652/- holding that the machinery purchased by the assessee with written down value of Rs.2,26,24,345/-is bogus. As per the Assessing Officer the payment made by the appellant for the purchase of machinery were made to M/s Harjit Paper & Machinery Private Limited. M/s Harjit Paper & Machinery Private Limited is stated to have further purchased machinery from M/s Hitanshu Sales Corporation and M/s Staunch International.

That the Assessing Officer has drawn adverse inference on the ground that the payment made by M/s Harjit Paper & Machinery Private Limited to M/s Hitanshu Sales Corporation and M/s Staunch International has been made by cheque and that from the accounts of these two parties cash had been withdrawn immediately. The Assessing Officer cannot be justified in drawing adverse inference against the assessee of such cash withdrawal. It is not that the cash has been withdrawn from the account of M/s Harjit Paper & Machinery Private Limited from whom the assessee had actually purchased the said machinery. The Assessing Officer has further observed that one Sh. Narinder Singh, who is shown to be proprietor of these two concerns, had stated in the recorded statement that he was simply a trader of auto parts and did job work of repair of machinery. The Assessing Officer has further noted that Sh. Narinder Singh had further stated that two persons namely Sh. Parmod Kumar and Sh. Vijay Kumar got his signature on various documents for opening bank account in his name. Here also just on above grounds the Assessing Officer was not justified to hold that M/s Harjit Paper & Machinery Private Limited was mere a 'paper entity'.

First of all it has not been shown if Sh. Narinder Singh or the other two persons that is Sh. Parmod Kumar and Sh. Vijay Kumar were in any way related to the appellant. If at all there is anything wrong in the accounts of M/s Staunch International and M/s Hitanshu Sales Corporation, it is required to be explained by M/s Harjit Paper & Machinery Private Limited and not by the appellant. Further, the appellant has duly explained before the Assessing Officer that this machinery is reflected in the copy of account of the seller company and that this machinery existed in the factory premises of the assessee. This factual submission of the assessee has not been found to be incorrect by the Assessing Officer. Further, it was explained to the Assessing Officer that the machinery was wholly financed by the bank and that the bank disbursed the final payment after inspection of machinery. Here again without examining the bank official and without controverting the above factual aspect the Assessing Officer on account of alleged excess depreciation on machinery is not justified and the same may kindly be deleted.

2.1 The AR was requested to file detail of machinery purchased, its mode of transport with proof, proof regarding installation of the machinery with details of expenses. It was also requested to give details of the utilization of the machinery and the products formed after the purchase/installation of the machinery.

2.2 During the discussion on 31.01.2017, the AR was again asked about the proof regarding transport, installation, production etc. In response it was stated by the AR that these details could not be filed due to non availability of the same after the search. The AR could not given even the mode of transport, date of installation / production etc.

Ground of Appeal No. 2 pertains to addition of Rs. 33,93,652/- or account of disallowance of depreciation by the AO. The AO has mentioned that as per the information, the assessee had purchased machinery from M/s Harjit Paper & Machinery Pvt. Ltd., who in turn purchased the same material/machinery from M/s Staunch International & M/s Hitanchu Sales Corporations. The purchases were shown in the F.Y. 2008-09 amounting to Rs.3,22,62,880/-. The AO mentions that the payments from M/s. Sigma Cartoons Pvt. Ltd., have been received by M/s. Harjit Paper & Machinery through RTGS. The payments by M/s. Harjit Paper & Machinery to M/s Hitanshu Sales Corporation & M/s. Staunch International have been made by cheque and from the accounts of the said two parties entire amount has been withdrawn by cash immediately. Further, as per bank accounts of M/s. Hitanshu Sales Corporation & M/s. Staunch International, one Sh. Narinder Singh, R/o 4064-32, Kot Baba Deep Singh, Bazar No. 4, Amritsar has been shown as proprietor of the above two concerns. His statement was recorded, where he

stated that he was simply 'trader of auto parts' and did 'job works of repairs of machinery'. Further he stated that he had no connection with either M/s. Hitanshu Sales Corporation or M/s. Staunch International and had no knowledge of their business affairs. Regarding the Bank accounts he stated that two persons Sh. Pramod Kumar R/o Vidhi Chand Colony, Mandi Gobind Garh & Sh. Vijay Kumar got his signature on various documents for opening the Bank accounts in his names and paid him a sum of Rs. 50,000/- and has not met those person ever since. In view of the above, the AO had observed that the machinery sold by M/s. Hitanshu Sales Corporation or M/s. Staunch International to M/s Harjit Paper & Machinery Pvt. Ltd., was bogus and consequently the purchase of machinery, by the assessee company, was mere paper entry. Accordingly, the AR was required to show cause as to why the amount of depreciation on bogus purchase of Machinery from M/s Harjit Paper & Machinery Pvt. Ltd. be not disallowed and added back to the total income of the assessee company. In response, the AR of the assessee company submitted during the assessment proceedings that the machinery purchased from the said party was wholly financed by the Bank. Moreover, Bank disbursed the final payment after inspection of the financed machinery. The AR argued that the machinery supplied by M/s Harjit Paper & Machinery Pvt. Ltd. still exists in the factory premises. As per the AR, since the assessee purchased the machinery and paid for it, installed the same in factory businesses, put to use for production, regular inspection by the bank is being made, hence disallowance of the said depreciation will lead to double taxation of the same amount. The reply of the AR of the assessee company was considered by the AO, however, as per AO, it was clear that the assessee had claimed excess depreciation on the bogus purchase of machinery which was not justifiable. Accordingly, the AO observed and held that after looking to the totally of the facts, the depreciation claimed on the alleged machinery could not be allowed as business expenditure and hence disallowed the same. Facts of the case, basis of disallowance made by the AO and the arguments of the AR during appellate proceedings have been considered. The AR during the course of appellate proceedings was asked to file the details of the Machinery purchased, Mode of its Transport, the Installation of the Machinery and the specific requirement/arrangement made for the Installation of the Machinery and the use thereof by the assessee along with the Products formed as a result of installation of the Machinery. The AR has simply filed the photocopies of the invoices but the other details like the mode and method of transport, proof of its installation, the installation requirement and the expenses on installation, the utilization and production etc., have not been filed. During appellate proceedings, the AR was required to substantiate its claim and file documents to show that the machinery was found installed at the time of search but nothing has been submitted by the AR nor any documents filed on the issue. On the other hand, the AO by way of following the trail of the money has shown that ultimately cash was withdrawn immediately after payments, from the accounts of two concerns and the proprietor (as per the Bank records) Sh. Narinder Singh, had no knowledge of their business affairs indicating that the purchase of machinery was bogus, carried out with the intention to claim false depreciation and to reduce the tax liabilities. The money has come back to the assessee group and utilized/re-introduced by it in the books of group companies in the shape of bogus share capital/share premium amounts. It is an accepted principle of jurisprudence that in certain exceptional cases the court is entitled to lift the veil of corporate entity and to pay regard to the economic realities behind the legal facade. The court has power to disregard the corporate entity if it used for tax evasion or to circumvent tax obligation or to perpetrate fraud as held in Juggilal Kamlapat v. CIT, (1969) 73 ITR 702 (SC); Union of India v. Playworld Electronics Pvt. Ltd. (1'990) 184 ITR 308, 317 (SC); CIT v. Sri Meenakshi Mills Ltd., (1967) 63 ITR 609, 616 (SC) etc. Further the legislature can forge a sledge-hammer capable of cracking open the corporate shell; and it can, if it chooses, demand that the courts ignore all the conceptions and principles which are at the root of company law [Bank Voor Handel enScheepvart N.V. v. Slatford, (1953) 1QB 248]. The assessee has booked fictitious/bogus purchases from M/s Harjit Paper & Machinery Pvt. Ltd., by further routing the money through the accounts of M/s Staunch International and M/s Hitanshu Sales Corporation. The assessee has completed the paper work/documentation giving it a color of machinery

purchases whereas there were no actual purchases. The alleged proprietor of the concerns from whom the material/machinery was shown procured and routed through M/s Harjit Paper & Machinery Pvt. Ltd., has stated that he had no knowledge about the activities of these concerns. It is a case where payment has been routed through different concerns to create layers giving an illusion of authenticity. In first step the money was transferred to the account of M/s Harjit Papers & Machinery Pvt. Ltd., and then through cheque in the accounts of M/s Staunch International and M/s Hitanshu Sales Corporation from where immediately after the receipt of sum by cheque, the amount is siphoned off/withdrawn in cash. The bank accounts of these concerns were operated by some other persons as stated by Sh. Narinder Singh, the alleged proprietor. These two concerns were used merely to withdraw the money in cash. Here it is relevant to note that when the machinery/material has not come to M/s Harjit Paper & Machinery Pvt. Ltd., from M/s Staunch International and M/s Hitanshu Sales Corporation how it could supply the same to the assessee. This is a simple case of fraudulent transactions where paper formalities have been completed with a view to defraud even the Bank and the loan taken has been siphoned off by showing purchase of machinery and routing the money through the intermediaries and ultimately withdrawing the cash which has been reintroduced as share capital/share premium money to avail further loan from the Bank. The assessee has miserably failed to show that the alleged seller of the machinery was ever possessing that machinery. It has also not been able to show that the alleged machinery was ever transferred from Amritsar to the premises of the assessee. Cost of the machinery has been shown in crores and it would have required a heavy load carrier to bring it from Amritsar to premises of the assessee but no proof of such transport has been filed by the assessee. If the assessee had in fact installed the machinery in its factory and used the same for the purpose of business then there would not have been such a huge loss as declared by the assessee in the preceding years. The story is further completed by the fact that the siphoned off money has been reintroduced in the books of Group companies by way of bogus share application and share premium money in the name of Delhi and Kolkata based companies. It is beyond comprehension as to why the companies of Delhi and Kolkata will purchase the shares of companies of the assessee Group at a huge premium of Rs. 240 per share for the face value of Rs. 10 per share when there is no history of dividend declaration and the companies are mostly loss making concerns. In fact it was assessee Group's own funds which were generated/siphoning off by showing such bogus machinery purchases and withdrawing the cash which has been utilized and paid to the entry providing entities who gave cheques in lieu of the cash paid by the Group and these cheques amounts have been shown in the books of accounts of the Group companies as receipt of share application/share premium money. The events cannot be seen in isolation and a holistic approach to the issue is required. If all the facts are correlated then the real picture emerges as to how the funds borrowed from the Bank have been mis-utilized by showing bogus purchases and siphoning of the cash by routing the money through two or three paper entities and then the siphoned off cash has been brought back in the shape of bogus share capital/share premium amounts. Therefore, it can be said that in this case the appellant has not established the genuineness of purchase and utilization of machinery as well as transportation and its installation has not been proved, therefore under the facts and circumstances of the case, the depreciation claimed on the same is not allowable. The disallowance made by the AO is therefore confirmed. Accordingly, this ground of appeal is dismissed.

provided. He relied on the arguments taken before the Ld. CIT(A) which have been duly dealt with in his order. Since no new material has been brought to prove the decision of the Ld. CIT(A) contra, we hereby decline to interfere with the order of the Ld. CIT(A).

Order pronounced in the open Court.

Sd/- Sd/- (DIVA SINGH) (DR. B.R.R. KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER

Dated : 25/09/2018 AG

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