NAVIN SHANTILAL MEHTA, MUMBAI V. ITO WARD - 32(2)(4), MUMBAI

ITA 4186/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7780 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 07-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHADR
• Assessee Lawyers: PIYUSH D PAREKH
• Keywords: Bogus purchase; Unexplained cash credit; Capital asset; Depreciation; Question of law; Accommodation entries
• Section: 69C; 142(1); 133A; 133(6); 69; 148; 68

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.4185 & 4186/MUM/2017 ASSESSMENT YEAR: 2010-11 & 2011-12 MR. NAVIN SHANTILAL MEHTA D/102, SHIV KRUPA, MISQUITA NAGAR, VIDYA MANDIR ROAD, DAHISAR (EAST), MUMBAI-400068 / VS. INCOME TAX OFFICER, WARD-32(2)(4), 3 RD FLOOR, C-11, PRATYAKSHKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA EAST, MUMBAI-400051 / ASSESSEE / REVENUE P.A. NO. AAOPM2720P $ % & / ASSESSEE BY SHRI PIYUSH D. PAREKH $ % & / REVENUE BY MS. N. HEMALATHA-DR / DATE OF HEARING 19/12/2017 & / DATE OF ORDER: 19/12/2017 & / O R D E R THESE TWO APPEALS ARE BY THE ASSESSEE AGAINST THE IMPUGNED ORDERS BOTH DATED 16/02/2017 OF THE LD. FI RST APPELLATE AUTHORITY, MUMBAI. THE FIRST COMMON GROUN D ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 2 RAISED BY THE ASSESSEE IS WITH RESPECT TO ADDITION MADE U/S 69C OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE AC T) OF RS.1,58,13,010/-, WHICH WAS REDUCED TO RS.18,52,587 /- BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL) AND FUR THER ADDITION OF RS.4,12,416/- U/S 68 OF THE ACT FOR ASS ESSMENT YEAR 2010-11. IDENTICALLY, THE ADDITION OF RS.1,95 ,42,330/- (REDUCED TO RS.22,48,811/-) U/S 69C OF THE ACT AND RS.6,74,040/- U/S 68 OF THE ACT FOR ASSESSMENT YEAR 2011- 12. 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, SHRI PIYUDSH D. PAREKH, CONTENDED THAT THE LD. ASSE SSING OFFICER MADE THE ADDITION AT THE RATE OF 100% OF TH E BOGUS PURCHASES, WHICH WAS REDUCED TO 12.5% BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL), WHICH CAN BE F URTHER REDUCED. THE ADDITION RETAINED U/S 68 OF THE ACT W AS ALSO CHALLENGED BY THE LD. COUNSEL BY CONTENDING THAT PR OPER OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE. ON TH E OTHER HAND, MS. N. HEMLATHA, LD. DR, STRONGLY DEFENDED TH E ADDITION MADE BY THE ASSESSING OFFICER BY CONTENDIN G THAT THE FIRST APPELLATE AUTHORITY HAS TAKEN A LENIENT V IEW, ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 3 THEREFORE, THE ADDITION MADE BY THE LD. ASSESSING O FFICER MAY BE SUSTAINED. IT WAS CONTENDED THAT THE LD. COMMISS IONER OF INCOME TAX (APPEAL) REDUCED THE ADDITION TO THE EXT ENT WHICH IS NOT JUSTIFIED. 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. SO FAR AS , THE ADDITIONS IN BOTH THE YEARS MADE U/S 69C OF THE ACT IS CONCERNED, THE FACTS, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL IN THE BUSINESS OF IRON AND STEEL, FOR ASSESSMENT YEAR 2010-11, THE ASSESSEE DECLARED INCOME OF RS.5, 79,901/- ON 15/10/2010 AND FOR ASSESSMENT YEAR 2011-12, THE ASSESSEE DECLARED INCOME OF RS.8,77,805/- ON 30/09/ 2011. A SURVEY ACTION U/S 133A OF THE ACT WAS CONDUCTED O N 24/01/2013, WHEREIN, IT WAS FOUND THAT THE ASSESSEE CLAIM TO HAVE MADE PURCHASES FROM VARIOUS PARTIES OUT OF WHICH SOME ARE NOTIFIED HAWALA OPERATORS ON THE OFFICIAL WEBSITE OF SALES TAX DEPARTMENT OF MAHARASHTRA GOVERNMENT. THE CASE OF THE ASSESSEE WAS REOPENED WITH THE ISSUANCE OF N OTICE U/S 148 DATED 12/03/2013. REASONS WERE RECORDED, WHICH ARE AVAILABLE IN THE ASSESSMENT ORDERS. NOTICES U/S 143 (2) AND ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 4 142(1) WERE SERVED UPON THE ASSESSEE TO WHICH THE A SSESSEE ATTENDED THE PROCEEDINGS FROM TIME TO TIME. DURING THE COURSE OF SURVEY, THE STATEMENT WAS RECORDED, WHERE IN, THE ASSESSEE WAS CONFRONTED WITH THE EVIDENCES FOUND FR OM CERTAIN PARTIES FROM WHOM THE ASSESSEE CLAIMED TO H AVE MADE PURCHASES. THE RELEVANT PORTION OF THE STATEM ENT AND THE LIST OF NON-GENUINE PURCHASES ARE MENTIONED IN THE ASSESSMENT ORDERS. THE ASSESSEE IN ITS PROFIT AND L OSS ACCOUNT OF PROPRIETOR CONCERN M/S KARUNAL STEEL HAS DEBITED PURCHASES OF RS.7,07,60,216.59/-. THE ASSESSEE WAS ASKED TO FILE THE DETAILS OF THE PARTIES FROM WHOM PURCHASES WERE MADE. THE SALES TAX DEPARTMENT ALSO CONDUCTED INDEPENDENT ENQUIRIES IN EACH OF THE HAWALA PARTIES AND IT WAS FOUND THAT THESE PARTIES WERE ENGAGED IN PROVID ING ACCOMMODATION ENTRIES ONLY WITHOUT ACTUAL DELIVERY OF GOODS. IN ORDER TO ASCERTAIN THE GENUINENESS OF THE TRANSA CTIONS, INDEPENDENT ENQUIRIES WERE CARRIED OUT AND NOTICES U/S 133(6) WERE ISSUED TO THE CONCERNED PARTIES. THESE NOTICES WERE RETURNED UNSERVED BY THE POSTAL AUTHORITY WITH THE REMARK NOT KNOWN AND NO SUCH PARTY EXIST AT THE GIVEN ADDRESS. THE INSPECTOR OF THE DEPARTMENT WAS ALSO DEPUTED ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 5 TO OBTAIN INFORMATION WITH RESPECT TO GENUINENESS O F THE PURCHASES AND ALSO TO SERVE THE NOTICES. THE INSPEC TOR VIDE REPORT DATED 07/02/2014 ALSO STATED THAT NO SUCH CONCERNS/ADDRESSES ARE AVAILABLE AT THE GIVEN ADDRE SS. CONSIDERING THE FACTUAL MATRIX, THE PURCHASES AGGRE GATING TO RS.1,48,20,692/- (FROM THE PARTIES IDENTIFIED AS HA WALA OPERATORS) WERE ADDED TO THE INCOME OF THE ASSESSEE AS THE ONUS WAS NOT DISCHARGED BY THE ASSESSEE. 2.2. ON APPEAL BEFORE THE FIRST APPELLATE AUTHORIT Y, THE FACTUAL MATRIX WAS CONSIDERED AND FOLLOWING VARIOUS DECISIONS INCLUDING FROM HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S NIKUNJ EXIMP ENTERPRISES 372 ITR 619 (BOM.), RESTRICTED THE ADDITION @ 12.5% OF THE BOGUS PURCHA SES, WHICH COMES TO RS.18,52,568/- (ASSESSMENT YEAR 2010 -11), WHICH IS UNDER CHALLENGED BEFORE THIS TRIBUNAL. 2.3. BEFORE ADVERTING FURTHER, IF THE OBSERVATION MADE IN THE ASSESSMENT ORDER, LEADING TO ADDITION MADE TO T HE TOTAL INCOME, CONCLUSION DRAWN IN THE IMPUGNED ORDER, MAT ERIAL AVAILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RES PECTIVE COUNSEL, IF KEPT IN JUXTAPOSITION AND ANALYZED, I D EEM IT ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 6 APPROPRIATE TO CONSIDER VARIOUS DECISIONS FROM HON' BLE HIGH COURTS/HON'BLE APEX COURT, SO THAT I CAN REACH TO A PROPER CONCLUSION. THE HON'BLE GUJARAT HIGH COURT IN SANJA Y OILCAKES INDUSTRIES VS CIT (2009) 316 ITR 274 (GUJ. ) HELD AS UNDER:- 11. HAVING HEARD THE LEARNED ADVOCATES APPEARING F OR THE RESPECTIVE PARTIES, IT IS APPARENT THAT NO INTERFERENCE IS CALLED FOR IN THE IMPUGNED ORDER OF THE TRIBUNAL DATED APRIL 29, 1994, READ WITH THE ORDER DATED SEPTEMBER 29, 1994, MADE IN MISCELLANEOUS APPLICATION. IN THE PRINCIPAL ORDER THE TRIBUNAL HA S RECORDED THE FOLLOWING FINDINGS : '8.3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE FACTS ON RECORD. IN OUR OPINION, THE ACTION OF THE COMMISSIONER OF INCOME-TAX (APPEALS) CONFIRMING 25 PER CENT. OF THE AMOUNTS CLAIMED IS FAIR AND REASONABLE AND NO INTERFERENCE IS CALLED FOR. THE COMMIS SIONER OF INCOME-TAX (APPEALS) HAS GONE THROUGH THE PURCHASE PRICES OF THE RAW MATERIAL PREVALENT AT THE TIME AND RIGHTLY CAME TO THE CON CLUSION THAT THE DISALLOWANCE TO THE EXTENT OF 25 PER CENT. WAS CALLED FOR. IT IS ESTABLISHED THAT THE PARTIES WERE NOT TRACEABLE ; THEY OPENED THE BANK ACCOUNTS IN WHICH THE CHEQUES WERE CREDITED BUT SOON THEREAFTER THE AMOUNTS WERE WITHDRAWN BY BEARER CHEQUES. THAT FAIRLY LEADS TO THE CONCLUSION THAT THESE PARTIES WERE PERHAPS CREATION OF THE ASSESSEE ITSELF FOR THE PURPOSE OF BANKING PURCHASES INTO BOOKS OF ACCOUNT BECAUSE THE PURCHASES WITH BILLS WERE NOT FEASIBLE. THUS, THE ABOVENOTED PARTIES BECOME CONDUIT PIPES BETWEEN THE ASSESSEE-FIRM AND THE SELLERS OF THE RAW MATERIALS. UNDER THE CIRCUMSTANCES, IT WAS NOT ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 7 IMPOSSIBLE FOR THE ASSESSEE TO INFLATE THE PRICES OF RAW MATERIALS. ACCORDINGLY, AN ADDITION AT THE RATE OF 25 PER CENT. FOR EXTRA PRICE PAID BY THE ASSESSEE THAN OVER AND ABOVE THE PREVALENT PRICE IS FAIR AND REASONABLE AND WE ACCORDINGLY CONFIRM THE FINDING OF THE COMMIS SIONER OF INCOME-TAX (APPEALS).' 12. THUS, IT IS APPARENT THAT BOTH THE COMMISSIONER (APPEALS) AND THE TRIBUNAL HAVE CONCURRENTLY ACCEPTED THE FINDING OF THE ASSESSING OFFICER THAT THE APPARENT SELLERS WHO HAD ISSUED SALE BILLS WERE NOT TRACEABLE. THAT GOODS WERE RECEIVED FROM THE PARTIES OTHER THAN THE PERSONS WHO HAD ISSUED BILLS FOR SUCH GOODS. THOUGH THE PURCHASES ARE SHOWN TO HAVE BEEN MADE BY MAKING PAYMENT THEREOF BY ACCOUNT PAYEE CHEQUES, THE CHEQUES HAVE BEEN DEPOSITED IN BANK ACCOUNTS OSTENSIBLY IN THE NAME OF THE APPARENT SELLERS, THEREAFTER THE ENTIRE AMOUNTS HAVE BEEN WITHDRAWN BY BEARER CHEQUES AND THERE IS NO TRACE OR IDENTITY OF THE PERSON WITHDRAWING THE AMOUNT FROM THE BANK ACCOUNTS. IN THE LIGHT OF THE AFORESAID NATURE OF EVIDENCE IT IS NOT POSSIBLE TO RECORD A DIFFERENT CONCLUSION, DIFFERENT FROM THE ONE RECORDED BY THE COMMISSIONER (APPEALS) AND THE TRIBUNAL CONCURRENTLY HOLDING THAT THE APPARENT SELLERS WERE NOT GENUINE, OR WERE ACTING AS CONDUIT BETWEEN THE ASSESSEE-FIRM AND THE ACTUAL SELLERS OF THE RAW MATERIALS. BOTH THE COMMISSIONER (APPEALS) AND THE TRIBUNAL HAVE, THEREFORE, COME TO THE CONCLUSION THAT IN SUCH CIRCUMSTANCES, THE LIKELIHOOD OF THE PURCHASE PRICE BEING INFLATED CANNOT BE RULED OUT AND THERE IS NO MATERIAL TO DISLODGE SUCH FINDING. THE ISSUE IS NO T WHETHER THE PURCHASE PRICE REFLECTED IN THE BOOKS OF ACCOUNT MATCHES THE PURCHASE PRICE STATED TO HAVE BEEN PAID TO OTHER PERSONS. THE ISSUE IS WHETHER THE PURCHASE PRICE PAID BY THE ASSESSEE IS REFLECTED AS RECEIPTS BY THE RECIPIENTS. THE ASSESSEE HAS, BY SET O F EVIDENCE AVAILABLE ON RECORD, MADE IT POSSIBLE FOR TH E ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 8 RECIPIENTS NOT BEING TRACEABLE FOR THE PURPOSE OF INQUIRY AS TO WHETHER THE PAYMENTS MADE BY THE ASSESSEE HAVE BEEN ACTUALLY RECEIVED BY THE APPARENT SELLERS. HENCE, THE ESTIMATE MADE BY THE TWO APPELLATE AUTHORITIES DOES NOT WARRANT INTERFERENCE. EVEN OTHERWISE, WHETHER THE ESTIMATE SHOULD BE AT A PARTICULAR SUM OR AT A DIFFERENT SUM, CAN NEVER BE AN ISSUE OF LAW. IN THE AFORESAID CASE, THE HON'BLE HIGH COURT ACCEP TED THAT THE APPARENT SELLERS, WHO ISSUED THE SAID BILL S WERE NOT TRACEABLE AND THE GOODS RECEIVED FROM PARTIES OTHER THAN THE PERSONS, WHO HAD ISSUED THE BILLS FOR SUCH GOODS. T HE PURCHASES WERE SHOWN TO HAVE BEEN MADE BY MAKING PAYMENTS, THROUGH BANKING CHANNEL AND THUS THE APPA RENT SELLERS WERE NOT GENUINE OR WERE ACTING AS CONDUIT BETWEEN THE ASSESSEE AND THE ACTUAL SELLER. IN SUCH A SITUA TION, THE CONCLUSION DRAWN BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL) AS WELL AS BY THE TRIBUNAL WAS AFFIRMED. HON'BLE APEX COURT IN KACHWALA GEMS VS JCIT (2007) 158 TAXM AN 71 OBSERVED THAT AN ELEMENT OF GUESSWORK IS INEVITABLE IN CASES, WHERE ESTIMATION OF INCOME IS WARRANTED. 2.4. THE HON'BLE GUJARAT HIGH COURT IN CIT VS BHOLANATH POLY FAB. PVT. LTD. (2013) 355 ITR 290 (G UJ.) HELD/OBSERVED AS UNDER:- ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 9 5. HAVING COME TO SUCH A CONCLUSION, HOWEVER, THE TRIBUNAL WAS OF THE OPINION THAT THE PURCHASES MAY HAVE BEEN MADE FROM BOGUS PARTIES, NEVERTHELESS, THE PURCHASES THEMSELVES WERE NOT BOGUS. THE TRIBUNAL ADVERTED TO THE FACTS AND DATA ON RECORD A ND CAME TO THE CONCLUSION THAT THE ENTIRE QUANTITY OF OPENING STOCK, PURCHASES AND THE QUANTITY MANUFACTURED DURING THE YEAR UNDER CONSIDERATION WERE SOLD BY THE ASSESSEE. THEREFORE, THE PURCHASES OF THE ENTIRE 1,02,514 METRES OF CLOTH WERE SOLD DURING THE YEAR UNDER CONSIDERATION. THE TRIBUNAL, THEREFORE, ACCEPTED THE ASSESSEE'S CONTENTION THAT THE FINISHED GOODS WERE PURCHASED BY THE ASSESSEE, MAY BE NOT FROM THE PARTIES SHOWN IN THE ACCOUNTS, BUT FROM OTHER SOURCES. IN THAT VIEW OF THE MATTER, THE TRIBUNAL WAS OF THE OPINION THAT NOT THE ENTIRE AMOUNT, BUT THE PROFIT MARGIN EMBEDDED IN SUCH AMOUNT WOULD BE SUBJECTED TO TAX. THE TRIBUNAL RELIED ON ITS EARLIER DECISION IN THE CASE OF SANKE T STEEL TRADERS AND ALSO MADE REFERENCE TO THE TRIBUNAL'S DECISION IN THE CASE OF VIJAY PROTEINS L TD. V. ASST. CIT [1996] 58 ITD 428 (AHD). 6. WE ARE OF THE OPINION THAT THE TRIBUNAL COMMITTE D NO ERROR. WHETHER THE PURCHASES THEMSELVES WERE BOGUS OR WHETHER THE PARTIES FROM WHOM SUCH PURCHASES WERE ALLEGEDLY MADE WERE BOGUS IS ESSENTIALLY A QUESTION OF FACT. THE TRIBUNAL HAVING EXAMINED THE EVIDENCE ON RECORD CAME TO THE CONCLUSION THAT THE ASSESSEE DID PURCHASE THE CLOTH AND SELL THE FINISHED GOODS. IN THAT VIEW OF THE MATTER, AS NATURAL COROLLARY, NOT THE ENTIRE AMOUNT COVERED UNDER SUCH PURCHASE, BUT THE PROFIT ELEMENT EMBEDDED THEREIN WOULD BE SUBJECT TO TAX. THIS WAS THE VIEW OF THIS COURT IN THE CASE OF SANJAY OILCAK E INDUSTRIES V. CIT [2009] 316 ITR 274 (GUJ). SUCH ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 10 DECISION IS ALSO FOLLOWED BY THIS COURT IN A JUDGME NT DATED AUGUST 16, 2011, IN TAX APPEAL NO. 679 OF 2010 IN THE CASE OF CIT V. KISHOR AMRUTLAL PATEL. I N THE RESULT, TAX APPEAL IS DISMISSED. 2.5. LIKEWISE, THE HON'BLE GUJARAT HIGH COURT IN C IT VS VIJAY M. MISTRY CONSTRUCTION LTD. (2013) 355 ITR 49 8 (GUJ.) HELD/OBSERVED AS UNDER:- 6. AS IS APPARENT FROM THE FACTS NOTED HEREINABOVE , THE COMMISSIONER (APPEALS) AFTER APPRECIATING THE EVIDENCE ON RECORD HAS FOUND THAT THE ASSESSEE HAD IN FACT MADE THE PURCHASES AND, HENCE, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN DISALLOWING THE ENTIRE AMOUNT. HE, HOWEVER, WAS OF THE VIEW THAT TH E ASSESSEE HAD INFLATED THE PURCHASES AND, ACCORDINGLY, BY PLACING RELIANCE ON THE DECISION OF THE TRIBUNAL IN THE CASE OF VIJAY PROTEINS (SUPRA) RESTRICTED THE DISALLOWANCE TO 20 PER CENT. THE TRIBUNAL IN THE IMPUGNED ORDER HAS FOLLOWED ITS EARLIER ORDER IN THE CASE OF VIJAY PROTEINS TO THE LETTER AND ENHANCED THE DISALLOWANCE TO 25 PER CENT. THUS, IN BOTH CASES, THE DECISION OF THE COMMISSIONER (APPEALS) AS WELL AS THAT OF THE TRIBUNAL IS BASED ON ESTIMATE. THIS HIGH COURT IN THE CASE OF SANJAY OIL CAKE [2009] 316 ITR 274 (GUJ) HAS HELD THAT WHETHER AN ESTIMATE SHOULD BE AT A PARTICULAR SUM OR AT A DIFFERENT SUM CAN NEVER BE A QUESTION OF LAW. 7. THE APEX COURT IN THE CASE OF KACHWALA GEMS [2007] 288 ITR 10 (SC) HAS HELD THAT IN A BEST JUDGMENT ASSESSMENT THERE IS ALWAYS A CERTAIN DEGREE OF GUESS WORK. NO DOUBT, THE AUTHORITIES SHOULD TRY TO MAKE AN HONEST AND FAIR ESTIMATE OF T HE INCOME EVEN IN A BEST JUDGMENT ASSESSMENT AND SHOULD NOT ACT TOTALLY ARBITRARILY BUT THERE IS NECESSARILY SOME AMOUNT OF GUESS WORK INVOLVED IN A BEST JUDGMENT ASSESSMENT. ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 11 8. EXAMINING THE FACTS OF THE PRESENT CASE IN THE L IGHT OF THE AFORESAID DECISIONS, THE DECISION OF THE TRIBUNAL, BEING BASED ON AN ESTIMATE, DOES NOT GIVE RISE TO ANY QUESTION OF LAW SO AS TO WARRANT INTERFERENCE. 9. IN SO FAR AS THE PROPOSED QUESTIONS (C), (D) AND (E) ARE CONCERNED, THE SAME ARE SIMILAR TO THE PROPOSED QUESTION (A) WHEREIN THE TRIBUNAL HAS RESTRICTED TH E ADDITION TO 25 PER CENT. ON SIMILAR FACTS. IN THE CIRCUMSTANCES, FOR THE REASONS STATED HEREINABOVE, THE SAID GROUNDS OF APPEAL DO NOT GIVE RISE TO ANY QUESTION OF LAW. 10. AS REGARDS THE PROPOSED QUESTION (B) WHICH PERTAINS TO THE DELETION OF ADDITION OF RS. 7,88,59 0 MADE ON ACCOUNT OF INFLATION OF EXPENSES PAID TO METAL AND MACHINE TRADING CO. (MMTC), THE ASSESSING OFFICER HAS FOUND THAT MMTC WAS A PARTNERSHIP FIRM OF SHRI NITIN GAJJAR ALONG WITH HI S FATHER AND BROTHER OPERATING FROM BHAVNAGAR. A PERUSAL OF THEIR TRANSACTIONS WITH THE ASSESSEE INDICATED THAT THERE IS SOME INFLATION OF EXPENSES AS DETAILED IN PARAGRAPH 6.1 OF THE ASSESSMENT ORDER. AFTER CONSIDERING THE EVIDENCE ON RECORD, THE ASSESSING OFFICER DISALLOWED THE AMOUNT RS. 7,88,590 ON ACCOUNT OF PAYMENT MADE TO MMTC. 11. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER (APPEALS), WHO UPON APPRECIATION OF THE EVIDENCE ON RECORD FOUND THAT THE ASSESSING OFFICER HAD NOT REJECTED THE GENUINENESS OF THE PURCHASES MADE FROM MMTC WHILE MAKING THE DISALLOWANCE. HIS OBSERVATIONS WERE BASED ON INFLATION OF RATES WHICH WERE BEING CHARGED FROM TH E ASSESSEE. ACCORDING TO THE COMMISSIONER (APPEALS), THOUGH MMTC IN SOME RESPECT COULD BE ATTRIBUTED TO BE ASSOCIATED WITH THE ASSESSEE-COMPANY, STILL IT COULD NOT BE EXPECTED THAT MMTC WAS CARRYING OUT IT S BUSINESS WITHOUT ANY MOTIVE OR PROFIT. ACCORDING TO THE COMMISSIONER (APPEALS), IT WAS PROVED BY THE ASSESSEE THAT THE RATES CHARGED BY MMTC WERE ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 12 COMPARABLE WITH THE PREVAILING MARKET RATES, NO SUC H ADDITION CAN STAND. THE COMMISSIONER (APPEALS) TOOK NOTE OF THE FACT THAT IT WAS NOT THE CASE OF THE ASSESSING OFFICER THAT THE PURCHASES HAD BEEN DIRECTLY EFFECTED FROM THIRD PARTIES AND NOT DIRECT LY FROM MMTC ; THE DIFFERENCE COULD NOT BE THE NET PRO FIT IN THE HANDS OF MMTC ; AND THAT WHILE CONDUCTING TH E ENTIRE EXERCISE MMTC WOULD HAVE TO INCUR CERTAIN EXPENDITURE IN TRANSPORTATION, IN ENGAGING PERSONNE L IN THE OFFICE AND OTHER OPERATIONS AND WAS ACCORDINGLY OF THE VIEW THAT THERE WAS NO CASE OF ACTUAL INFLATION OF RATES AND DELETED THE ADDITION. 12. THE TRIBUNAL, IN THE IMPUGNED ORDER, HAS CONCURRED WITH THE FINDINGS RECORDED BY THE COMMISSIONER (APPEALS) AND HAS FOUND THAT THE ASSESSEE HAD MADE PURCHASES FROM MMTC AT THE PREVAILING MARKET RATES AND THAT MMTC HAD INCURRED CERTAIN EXPENDITURE IN ENGAGING PERSONNEL IN THE OFFICE AND OTHER OPERATIONS AND WOULD MAKE SOME INCOME FROM THE ENTIRE EXERCISE. IN THE CIRCUMSTANC ES, THE PURCHASES MADE BY THE ASSESSEE FROM MMTC WOULD NOT BE HIT BY THE PROVISIONS OF SECTION 40A(2 ) OF THE ACT. 13. THUS, THE CONCLUSION ARRIVED AT BY THE TRIBUNAL IS BASED ON CONCURRENT FINDINGS OF FACT RECORDED BY TH E COMMISSIONER (APPEALS) AS WELL AS THE TRIBUNAL. IT IS NOT THE CASE OF THE REVENUE THAT THE TRIBUNAL HAS TAKEN INTO ACCOUNT ANY IRRELEVANT MATERIAL OR THAT ANY RELEVANT MATERIAL HAS NOT BEEN TAKEN INTO CONSIDERATION. IN THE ABSENCE OF ANY MATERIAL TO TH E CONTRARY BEING POINTED OUT ON BEHALF OF THE REVENUE , THE IMPUGNED ORDER BEING BASED ON CONCURRENT FINDINGS OF FACT RECORDED BY THE TRIBUNAL UPON APPRECIATION OF THE EVIDENCE ON RECORD, DOES NOT GI VE RISE TO ANY QUESTION OF LAW IN SO FAR AS THE PRESEN T GROUND OF APPEAL IS CONCERNED. 14. IN RELATION TO THE PROPOSED QUESTION (F) WHICH RELATES TO THE DELETION OF ADDITION OF RS. 44,54,42 6 MADE ON ACCOUNT OF PURCHASE OF CRANE AND ALLOWING ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 13 DEPRECIATION ON THE SAME, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD PURCHASED A CRAWLER CRANE FOR AN AMOUNT OF RS. 24,61,000 EXCLUDING THE COST OF SPARE PARTS OF RS. 14,98,490. THE ASSESSING OFFICER AFTER EXAMINING THE EVIDENCE ON RECORD AND CONSIDERING THE EXPLANATION GIVEN BY THE ASSESSEE, MADE ADDITION OF RS. 44,54,426, RS. 39,59,490 BEING THE PURCHASE PRICE OF THE CRANE ALONG WITH ITS SPAR E PARTS AND RS. 4,94,936 BEING DEPRECIATION CLAIMED B Y THE ASSESSEE. THE COMMISSIONER (APPEALS), UPON APPRECIATION OF EVIDENCE ON RECORD, WAS OF THE VIEW THAT THE ASSESSING OFFICER HAS NOT APPRECIATED THE FACTS OF THE CASE PROPERLY AND HAD MADE DISALLOWANCE WHICH WAS NOT PERMITTED BY THE INCOME- TAX ACT. IT WAS HELD THAT DISALLOWANCE COULD ONLY HAVE BEEN MADE IN RESPECT OF EXPENSES DEBITED TO TH E PROFIT AND LOSS ACCOUNT WHEREAS IN THE PRESENT CASE THE PURCHASE OF CRANE AND SPARE PARTS OF THE CRANE AND OTHER MACHINERIES WERE IN THE NATURE OF ACQUISITION OF CAPITAL ASSET. ACCORDING TO THE COMMISSIONER (APPEALS), THE DISALLOWANCE COULD HAVE BEEN MADE ON DEPRECIATION ONLY IF AT ALL THE ASSESSING OFFICER CONCLUSIVELY PROVED THAT THE PURCHASES OF CRANE AND OTHER PARTS ARE BOGUS. UPON APPRECIATION OF THE MATERIAL ON RECORD THE COMMISSIONER (APPEALS) FOUND THAT THE ASSESSING OFFICER HAS SIMPLY BRUSHED ASIDE ALL THE EVIDENCE O N ACCOUNT OF TECHNICAL INFIRMITIES AND THAT THE EVIDE NCE SUCH AS OCTROI RECEIPT ; HYPOTHECATION OF THE CRANE TO THE BANK; EXISTENCE OF THE CRANE EVEN TILL DATE WIT H THE ASSESSEE CONCLUSIVELY PROVED THAT THE CRANE WAS PURCHASED AND IT WAS IN USE EVEN AS ON DATE WITH THE ASSESSEE. THE COMMISSIONER (APPEALS) ACCORDINGLY FOUND THAT THERE WAS NO SCOPE FOR ANY DISALLOWANCE AND ACCORDINGLY DELETED THE DISALLOWANCE MADE ON ACCOUNT OF PURCHASE OF CRANE AND ALLOWED THE DEPRECIATION AS CLAIMED BY THE ASSESSEE. 15. THE TRIBUNAL, IN THE IMPUGNED ORDER, HAS NOTED THAT THE COST OF CRANE WAS NEVER CLAIMED BY THE ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 14 ASSESSEE IN THE RETURN OF INCOME. BEFORE THE TRIBUN AL, THE ASSESSEE PRODUCED THE EVIDENCE THAT THE CRANE I N QUESTION WAS REGISTERED WITH THE RTO AND THE SAME WAS WHOLLY AND EXCLUSIVELY USED FOR THE PURPOSES OF ITS BUSINESS. THE TRIBUNAL, THEREFORE, HELD THAT TH E COMMISSIONER (APPEALS) WAS LEGALLY AND FACTUALLY CORRECT IN DELETING THE DISALLOWANCE OF COST OF CRA NE AS WELL AS DEPRECIATION THEREON. 16. FROM THE FACTS EMERGING FROM THE RECORD, IT IS APPARENT THAT THE ASSESSEE HAD NEVER CLAIMED THE COST OF THE CRANE IN THE RETURN NOR HAD IT DEBITED THE EXPENSES TO THE PROFIT AND LOSS ACCOUNT, AND AS SUC H THE QUESTION OF DISALLOWING THE SAME AND ADDING THE SAME TO THE INCOME WOULD NOT ARISE. MOREOVER, IN TH E ABSENCE OF ANY EVIDENCE TO INDICATE THAT THE PURCHA SE WAS BOGUS OR THAT THE CRANE IN FACT DID NOT EXIST, THE QUESTION OF DISALLOWING THE DEPRECATION IN RESPECT OF THE SAME ALSO WOULD NOT ARISE. WHEN THE ASSESSEE HAD CONCLUSIVELY PROVED THE PURCHASE AND EXISTENCE OF THE CRANE, AND HAD NOT DEBITED THE EXPENSES TO T HE PROFIT AND LOSS ACCOUNT, NO ADDITION COULD HAVE BEE N MADE IN RESPECT OF THE PURCHASE PRICE NOR COULD HAV E DEPRECIATION BEEN DISALLOWED IN RESPECT THEREOF. TH E TRIBUNAL WAS, THEREFORE, JUSTIFIED IN DELETING THE ADDITION AS WELL AS DISALLOWANCE OF DEPRECIATION. 17. IN THE LIGHT OF THE AFORESAID DISCUSSION, IT IS NOT POSSIBLE TO STATE THAT THERE IS ANY LEGAL INFIRMITY IN THE IMPUGNED ORDER MADE BY THE TRIBUNAL SO AS TO WARRANT INTERFERENCE. IN THE ABSENCE OF ANY QUESTIO N OF LAW, MUCH LESS, A SUBSTANTIAL QUESTION OF LAW, T HE APPEAL IS DISMISSED. 2.6. THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS ASHISH INTERNATIONAL LTD. (ITA NO.4299/2009) ORDER DATED 22/02/2011, OBSERVED/HELD AS UNDER:- ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 15 THE QUESTION RAISED IN THIS APPEAL IS, WHETHER THE TRIBUNAL WAS JUSTIFIED IN DELETING THE ADDITION ON ACCOUNT OF BOGUS PURCHASES ALLEGEDLY MADE BY THE ASSESSEE FROM M/S. THAKKAR AGRO INDUSTRIAL CHEM SUPPLIES P. LTD. ACCORDING TO THE REVENUE, THE DIRECTOR OF M/S. THAKKAR AGRO INDUSTRIAL CHEM SUPPLIES P. LTD. IN HIS STATEMENT HAD STATED THAT THERE WERE NO SALES / PURCHASES BUT THE TRANSACTIONS WERE ONLY ACCOMMODATION BILLS NOT INVOLVING ANY TRANSACTIONS. THE TRIBUNAL HAS RECORDED A FINDING OF FACT THAT THE ASSESSEE HAD DISPUTED THE CORRECTNESS OF THE ABOVE STATEMENT AND ADMITTEDLY THE ASSESSEE WAS NOT GIVEN ANY OPPORTUNITY TO CROSS EXAMINE THE CONCERNED DIRECTOR OF M/S. THAKKAR AGRO INDUSTRIAL CHEM SUPPLIES P. LTD. WHO HAD MADE THE ABOVE STATEMENT. THE APPELLATE AUTHORITY HAD SOUGHT REMAND REPORT AND EVEN AT THAT STAGE THE GENUINENESS OF THE STATEMENT HAS NOT BEEN ESTABLISHED BY ALLOWING CROSS EXAMINATION OF THE PERSON WHOSE STATEMENT WAS RELIED UPON BY THE REVENUE. IN THESE CIRCUMSTANCES, THE DECISION OF THE TRIBUNAL BEING BASED ON THE FACT, NO SUBSTANTIAL QUESTION OF LAW CAN BE SAID TO ARISE FROM THE ORDER OF THE TRIBUNAL. THE APPEAL IS DISMISSED WITH NO ORDER AS TO COSTS. 2.7. THE HON'BLE JURISDICTIONAL HIGH COURT IN CIT VS NIKUNJ EXIM ENTERPRISES PVT. LTD. (2015) 372 ITR 61 9 (BOM.) HELD/OBSERVED AS UNDER:- 7. WE HAVE CONSIDERED THE SUBMISSION ON BEHALF OF THE REVENUE. HOWEVER, FROM THE ORDER OF THE TRIBUNA L DATED APRIL 30, 2010, WE FIND THAT THE TRIBUNAL HAS DELETED THE ADDITIONS ON ACCOUNT OF BOGUS PURCHASES NOT ONLY ON THE BASIS OF STOCK STATEMENT, I.E., RECONCILIATION STATEMENT BUT ALSO IN VIEW OF THE OT HER FACTS. THE TRIBUNAL RECORDS THAT THE BOOKS OF ACCOU NT OF THE RESPONDENT-ASSESSEE HAVE NOT BEEN REJECTED. ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 16 SIMILARLY, THE SALES HAVE NOT BEEN DOUBTED AND IT I S AN ADMITTED POSITION THAT SUBSTANTIAL AMOUNT OF SAL ES HAVE BEEN MADE TO THE GOVERNMENT DEPARTMENT, I.E., DEFENCE RESEARCH AND DEVELOPMENT LABORATORY, HYDERABAD. FURTHER, THERE WERE CONFIRMATION LETTERS FILED BY THE SUPPLIERS, COPIES OF INVOICES FOR PURC HASES AS WELL AS COPIES OF BANK STATEMENT ALL OF WHICH WOULD INDICATE THAT THE PURCHASES WERE IN FACT MADE . IN OUR VIEW, MERELY BECAUSE THE SUPPLIERS HAVE NOT APPEARED BEFORE THE ASSESSING OFFICER OR THE COMMISSIONER OF INCOME-TAX (APPEALS), ONE CANNOT CONCLUDE THAT THE PURCHASES WERE NOT MADE BY THE RESPONDENT-ASSESSEE. THE ASSESSING OFFICER AS WELL AS THE COMMISSIONER OF INCOME-TAX (APPEALS) HAVE DISALLOWED THE DEDUCTION OF RS. 1.33 CRORES ON ACCOUNT OF PURCHASES MERELY ON THE BASIS OF SUSPICI ON BECAUSE THE SELLERS AND THE CANVASSING AGENTS HAVE NOT BEEN PRODUCED BEFORE THEM. WE FIND THAT THE ORDER OF THE TRIBUNAL IS WELL A REASONED ORDER TAKI NG INTO ACCOUNT ALL THE FACTS BEFORE CONCLUDING THAT T HE PURCHASES OF RS. 1.33 CRORES WAS NOT BOGUS. NO FAUL T CAN BE FOUND WITH THE ORDER DATED APRIL 30, 2010, O F THE TRIBUNAL. 2.8. THE HON'BLE GUJARAT HIGH COURT IN CIT VS M.K. BROTHERS (163 ITR 249) HELD/OBSERVED AS UNDER:- BEING AGGRIEVED BY THE AFORESAID ORDER, THE ASSESS EE WENT IN SECOND APPEAL BEFORE THE TRIBUNAL. IT WAS URGED ON BEHALF OF THE ASSESSEE THAT THE TRANSACTIO NS IN QUESTION WERE NORMAL BUSINESS TRANSACTIONS AND THE ASSESSEE HAD MADE PAYMENTS BY CHEQUES. THE PARTIES DID NOT COME FORWARD AND IF THEY DID NOT COME, THE ASSESSEE SHOULD NOT SUFFER. HOWEVER, ON BEHALF OF T HE REVENUE, IT WAS URGED THAT DETAILED INQUIRIES WERE MADE AND THEREAFTER THE CONCLUSION WAS REACHED. THE TRIBUNAL FOUND THAT THERE WAS NO EVIDENCE ANYWHERE THAT THESE CONCERNS GAVE BOGUS VOUCHERS TO THE ASSESSEE. NO DOUBT, THERE WERE CERTAIN DOUBTFUL FEATURES, BUT THE EVIDENCE WAS NOT ADEQUATE TO ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 17 CONCLUDE THAT THE PURCHASES MADE BY THE ASSESSEE FROM THE SAID PARTIES WERE BOGUS. THE TRIBUNAL ACCORDINGLY, DID NOT SUSTAIN THE ADDITION RETAINED BY THE APPELLATE ASSISTANT COMMISSIONER. HENCE, AT THE INSTANCE OF THE REVENUE, THE AFORESAID QUESTION HAS BEEN REFERRED TO THIS COURT FOR OPINION. ON A PERUSAL OF THE ORDER OF THE TRIBUNAL, IT CLEAR LY APPEARS THAT WHETHER THE SAID TRANSACTIONS WERE BOG US OR NOT WAS A QUESTION OF FACT. THE TRIBUNAL HAS ALS O POINTED OUT THAT NOTHING IS SHOWN TO INDICATE THAT ANY PART OF THE FUND GIVEN BY THE ASSESSEE TO THESE PAR TIES CAME BACK TO THE ASSESSEE IN ANY FORM. IT IS FURTHE R OBSERVED BY THE TRIBUNAL THAT THERE IS NO EVIDENCE ANYWHERE THAT THESE CONCERNS GAVE VOUCHERS TO THE ASSESSEE. EVEN THE TWO STATEMENTS DO NOT IMPLICATE THE TRANSACTIONS WITH THE ASSESSEE IN ANY WAY. WITH THE SE OBSERVATIONS, THE TRIBUNAL ULTIMATELY HAS OBSERVED THAT THERE ARE CERTAIN DOUBTFUL FEATURES, BUT THE EVIDEN CE IS NOT ADEQUATE TO CONCLUDE THAT THE PURCHASES MADE BY THE ASSESSEE FROM THESE PARTIES WERE BOGUS. IT MAY BE STATED THAT THE ASSESSEE WAS GIVEN CREDIT FACILITIE S FOR A SHORT DURATION AND THE PAYMENTS WERE GIVEN BY CHEQUES. WHEN THAT IS SO, IT CANNOT BE SAID THAT TH E ENTRIES FOR THE PURCHASES OF THE GOODS MADE IN THE BOOKS OF ACCOUNT WERE BOGUS ENTRIES. WE, THEREFORE, DO NOT FIND THAT THE CONCLUSION ARRIVED AT BY THE TRIB UNAL IS AGAINST THE WEIGHT OF EVIDENCE. IN THAT VIEW OF THE MATTER, WE ANSWER THE QUESTION IN THE AFFIRMATIVE, THAT IS, IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVEN UE. ACCORDINGLY, THE REFERENCE STANDS DISPOSED OF WITH NO ORDER AS TO COSTS. 2.9. THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS RAJEEV G. KALATHIL (2015) 67 SOT 52 (MUM. TRIB.)(URO), IDENTICALLY, HELD AS UNDER:- ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 18 2.2.AGGRIEVED BY THE ORDER OF THE AO, ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA).BEFORE HIM IT WAS ARGUED THAT ASSESS EE HAD FILED COPIES OF BILLS OF PURCHASE FROM DKE AND NBE, THAT BOTH THE SUPPLIERS WERE REGISTERED DEALERS AND WERE CARRYING PROPER VAT AND REGISTRATION NO.S, THA T LEDGER ACCOUNTS OF THE PARTIES IN ASSESSEE'S BOOKS SHOWED BILLS ACCOUNTED FOR, THAT PAYMENT WAS MADE B Y CHEQUES, THAT A CERTIFICATE FROM THE BANKER GIVING DETAILS OF CHEQUE PAYMENT TO THE SAID PARTIES WAS A LSO FURNISHED. COPIES OF THE CONSIGNMENT, RECEIVED FROM THE GOVERNMENT APPROVED TRANSPORT CONTRACTORS SHOWING THAT MATERIAL PURCHASED WAS ACTUALLY DELIVERED AT T HE SITE WAS FURNISHED BEFORE THE AO. IT WAS ALSO ARGUE D THAT SOME OF THE MATERIAL PURCHASED FROM THE SAID PARTIES WERE LYING PART OF CLOSING STOCK AS ON 31.03.2009 AS PER THE STATEMENT SUBMITTED ON RECORD . AFTER CONSIDERING THE ASSESSMENT ORDER AND THE SUBMISSIONS MADE BY THE ASSESSEE, FAA HELD THAT THE TRANSACTIONS WERE SUPPORTED BY PROPER DOCUMENTARY EVIDENCES, THAT THE PAYMENTS MADE TO THE PARTIES BY THE ASSESSEE WERE IN CONFIRMATION WITH BANK CERTIFICATE,T HAT THE SUPPLIERS WAS SHOWN AS DEFAUL T UNDER THE MAHARASHTRA VAT ACT COULD NOT BE SUFFICIE NT EVIDENCES TO HOLD THAT THE PURCHASES WERE NON-GENUI NE, THAT THE AO HAD NOT BROUGHT ANY INDEPENDENT AND RELIABLE EVIDENCES AGAINST THE ASSESSEE TO PROVE TH E NON-GENUINENESS OF THE PURCHASES, THAT THERE WAS NO EVIDENCE REGARDING CASH RECEIVED BACK FROM THE SUPPLIERS. FINALLY, HE DELETED THE ADDITION MADE BY THE AO . 2.3.BEFORE US, DEPARTMENTAL REPRESENTATIVE ARGUED THAT BOTH THE SUPPLIERS WERE NOT PRODUCED BEFORE TH E AO BY THE ASSESSEE, THAT ONE OF THEM WAS DECLARED HAWALA DEALER BY VAT DEPARTMENT, THAT BECAUSE OF CHEQUE PAYMENT MADE TO THE SUPPLIER TRANSACTION CANNOT BE TAKEN AS GENUINE. HE RELIED UPON THE ORDE R OF THE G BENCH OF MUMBAI TRIBUNAL DELIVERED IN THE CASE OF WESTERN EXTRUSION INDUSTRIES. (ITA/6579/MUM/2010-DATED 13.11.2013). AUTHRORISED REPRESENTATIVE (AR) CONTENDED THAT ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 19 PAYMENTS MADE BY THE ASSESSEE WERE SUPPORTED BY THE BANKERS STATEMENT, THAT GOODS RECEIVED BY THE ASSESSEE FROM THE SUPPLIE WAS PART OF CLOSING STOCK,THAT THE TRANSPORTER HAD ADMITTED THE TRANSPORTATION OF GOODS TO THE SITE.HE RELIED UPON THE CASE OF BABULA BORANA (282 ITR251), NIKUNJ EXIMP ENTERPRISES (P) LTD. (216TAXMAN171)DELIVERED BY THE HONBLE BOMBAY HIGH COURT. 2.4.WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US. WE FIND THAT AO HAD MADE TH E ADDITION AS ONE OF THE SUPPLIER WAS DECLARED A HAWA LA DEALER BY THE VAT DEPARTMENT. WE AGREE THAT IT WAS A GOOD STARTING POINT FOR MAKING FURTHER INVESTIGATIO N AND TAKE IT TO LOGICAL END. BUT, HE LEFT THE JOB AT INITIAL POINT ITSELF. SUSPICION OF HIGHEST DEGREE CANNOT TA KE PLACE OF EVIDENCE. HE COULD HAVE CALLED FOR THE DET AILS OF THE BANK ACCOUNTS OF THE SUPPLIERS TO FIND OUT A S WHETHER THERE WAS ANY IMMEDIATE CASH WITHDRAWAL FROM THEIR ACCOUNT. WE FIND THAT NO SUCH EXERCISE W AS DONE. TRANSPORTATION OF GOOD TO THE SITE IS ONE OF THE DECIDING FACTOR TO BE CONSIDERED FOR RESOLVING THE ISSUE. THE FAA HAS GIVEN A FINDING OF FACT THAT PART OF TH E GOODS RECEIVED BY THE ASSESSEE WAS FORMING PART OF CLOSING STOCK. AS FAR AS THE CASE OF WESTERN EXTRUS ION INDUSTRIES. (SUPRA)IS CONCERNED, WE FIND THAT IN TH AT MATTER CASH WAS IMMEDIATELY WITHDRAWN BY THE SUPPLIER AND THERE WAS NO EVIDENCE OF MOVEMENT OF GOODS. BUT, IN THE CASE BEFORE US, THERE IS NOTHING , IN THE ORDER OF THE AO, ABOUT THE CASH TRAIAL. SECONDL Y, PROOF OF MOVEMENT OF GOODS IS NOT IN DOUBT. THERERF ORE, CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE UNDER APPEAL, WE ARE OF THE OPINION THAT THE ORDER OF THE FAA DOES NOT SUFFER FROM ANY LEGAL INFIRMITY AND THERE ARE NOT SUFFICIENT EVIDENCE ON FILE TO ENDORSE THE VIEW TAKEN BY THE AO. SO, CONFIRMING TH E ORDER OF THE FAA, WE DECIDE GROUND NO.1 AGAINST THE AO . 2.10. THE RATIO LAID DOWN IN THE CASE OF M/S NEETA TEXTILES VS INCOME TAX OFFICER 6138/MUM/2013, ORDER DATED ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 20 27/05/2013, SHRI JIGAR V. SHAH VS INCOME TAX OFFICE R (ITA NO.1223/M/2014) ORDER DATED 22/01/2016, M/S IMPERIA L IMP. & EXP. VS INCOME TAX OFFICER ITA NO.5427/MUM/2 015, ORDER DATED 18/03/2016 SUPPORTS THE CASE OF THE ASS ESSEE AND THE CONCLUSION DRAWN IN THE IMPUGNED ORDER. HOW EVER, AS RELIED BY THE LD. DR, THE HON'BLE GUJARAT HIGH C OURT IN THE CASE OF N.K. INDUSTRIES LTD.,ETC VS DCIT (SUPRA) CO NSIDERING VARIOUS DECISIONS DECIDED THE ISSUE IN FAVOUR OF TH E REVENUE AND THE HON'BLE APEX COURT DISMISSED THE SLP VIDE O RDER DATED 16/01/2017 (SLP NO.(C) 769 OF 2017). I FIND T HAT IN THAT CASE, DURING SEARCH PROCEEDINGS, CERTAIN BLANK SIGN ED CHEQUE BOOKS AND VOUCHERS WERE FOUND AND THUS THE PURCHASE S MADE FROM THESE CONCERNS, WERE TREATED AS BOGUS BY THE ASSESSING OFFICER. 2.11. THE HON'BLE GUJARAT HIGH COURT IN N.K. INDUS TRIES LTD. VS DCIT (IT APPEAL NO.240, 261, 242, 260 AND 2 41 OF 2003), VIDE ORDER DATED 20/06/2016 CONSIDERED THE D ECISION OF THE TRIBUNAL AND VARIOUS JUDICIAL DECISIONS INCL UDING THE CASE OF VIJAY PROTEINS AND SANJAY OILCAKES INDUSTRI ES LTD., M/S WOOLEN CARPET FACTORY VS ITAT (2002) 178 CTR 42 0 ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 21 (RAJ.), THE TRIBUNAL WAS HELD TO BE JUSTIFIED IN DE CIDING THE CASE AGAINST THE ASSESSEE. THE HON'BLE APEX COURT CONFIRMED THE DECISION OF THE HIGH COURT FOR ADDING THE ENTIR E INCOME ON ACCOUNT OF BOGUS PURCHASES (SLP (C) NO.S 769 OF 201 7, ORDER DATED 16/01/2017. 2.12. IN SUCH TYPE OF CASES, BROADLY, THE LD. COMMISSIONER OF INCOME TAX (APPEAL) AS WELL AS THIS TRIBUNAL HAS FOLLOWED THE DECISIONS FROM HON'BLE GUJARAT HIG H COURT IN THE CASE OF SIMIT P. SETH (2013) 356 ITR 451 (GU J.), CIT VS VIJAY M. MISTRY CONSTRUCTION LTD. (2013) 355 ITR 49 8 (GUJ.), CIT VS BHOLA NATH POLY FAB. (P.) LTD. (2013) 355 IT R 290 (GUJ.) AND VARIOUS OTHER DECISIONS OF THE TRIBUNAL AND THE DECISION OF M/S NIKUNJ EXIMP(SUPRA) FROM HON'BLE JURISDICTIONAL HIGH COURT, WHEREIN, THE AGGREGATE DISALLOWANCE WAS RESTRICTED TO 12.5%. ADMITTEDLY, T HERE CANNOT BE SALE WITHOUT PURCHASES. THE CASE OF THE REVENUE IS THAT THERE IS BOGUS NATURE OF PURCHASES MADE FRO M SUPPLIERS AND THE PARTIES WERE NOT FOUND EXISTING A T THE GIVEN ADDRESSES. ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 22 2.13. ADMITTEDLY, IN SUCH TYPE OF CASES, THERE IS NO OPTION BUT TO ESTIMATE THE PROFIT WHICH DEPENDS UPO N THE SUBJECTIVE APPROACH OF AN INDIVIDUAL AND THE MATERI AL FACTS AVAILABLE ON RECORD. IN THE PRESENT APPEALS, BEFORE THIS TRIBUNAL, AS MENTIONED EARLIER, THE ASSESSEE IS IN THE BUSINESS OF TRADING OF IRON & STEEL. THE LD. ASSES SING OFFICER RECEIVED INFORMATION FROM THE SALES TAX DEPARTMENT THAT THE ASSESSEE CLAIMED TO HAVE MADE PURCHASES FROM 15 BOG US CONCERNS, THE NAMES OF WHOM ARE AVAILABLE IN THE AS SESSMENT ORDER AND THE LD. ASSESSING OFFICER ALSO MADE INDEP ENDENT ENQUIRIES AND THEN MADE THE ADDITION ON ACCOUNT OF BOGUS PURCHASES. EVEN THE NOTICES ISSUED U/S 133(6) TO SU CH PARTIES WERE RETURNED UNSERVED. ON FURTHER INVESTI GATION BY THE INSPECTOR OF THE DEPARTMENT, NO SUCH PARTIES WE RE FOUND EXISTING AT THE GIVEN ADDRESSES. IN SUCH A SITUATI ON, CONSIDERING THE FACTUAL MATRIX AND THE JUDICIAL PRONOUNCEMENTS DISCUSSED IN EARLIER PARAS OF THIS O RDER, I AM OF THE VIEW THAT THE FIRST APPELLATE AUTHORITY HAS TAKEN A REASONABLE, WHICH REQUIRES NO INTERFERENCE. SO FAR AS, THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE, THA T GP OF LAST TEN YEAR WAS NOT MORE THAN 4% IS CONCERNED, IT DEPE NDS UPON ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 23 THE FACTS OF THE EACH CASE AND PROBABLY IN OTHER YE ARS THERE MAY NOT BE ALLEGATION OF BOGUS PURCHASES AND EACH Y EAR IS INDEPENDENT. NO MATERIAL WAS PRODUCED BEFORE THIS T RIBUNAL CONTRADICTING THE FACTUAL FINDING RECORDED IN THE I MPUGNED ORDER. THUS, ON THIS GROUND, I FIND NO MERIT IN THE CLAIM OF THE ASSESSEE, RESULTANTLY, FOR BOTH YEARS, BEING ON IDENTICAL FACTS/ISSUES, THE GROUND RAISED BY THE ASSESSEE IS DISMISSED. 3. THE NEXT COMMON GROUND RAISED BY THE ASSESSEE PERTAINS TO ADDITION OF RS.4,12,416/-(ASSESSMENT YE AR 2010- 11) AND RS.6,74,040/- (ASSESSMENT YEAR 2011-12) MAD E U/S 68 OF THE ACT. THE CRUX OF THE ARGUMENT ON BEHALF O F THE ASSESSEE THAT COMPLETE CASH BOOKS SHOULD HAVE BEEN EXAMINED BY THE ASSESSING OFFICER. ON THE OTHER HA ND, THE LD. DR, EMPATHETICALLY CONTENDED THAT ON EXAMINATIO N OF CASH BOOKS, NEGATIVE BALANCE WAS FOUND AND NO EVIDENCE W AS PRODUCED BY THE ASSESSEE TO SUBSTANTIATE HIS CLAIM. 3.1. AS PER THE PROVISIONS OF SECTION 68 OF THE AC T, THE ASSESSEE IS EXPECTED TO OFFER AN EXPLANATION WITH R ESPECT TO THE NATURE AND SOURCE OF CASH CREDITS TO THE SATISF ACTION OF THE ASSESSING OFFICER. FOR READY REFERENCE SECTION 68 OF THE ACT IS REPRODUCED HEREUNDER:- ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 24 68. WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT, I N THE OPINION OF THE ASSESSING OFFICER, SATISFACTORY, THE SUM SO CREDITED MAY BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR : PROVIDED THAT WHERE THE ASSESSEE IS A COMPANY (NOT BEING A COMPANY IN WHICH THE PUBLIC ARE SUBSTANTIALLY INTER ESTED), AND THE SUM SO CREDITED CONSISTS OF SHARE APPLICATI ON MONEY, SHARE CAPITAL, SHARE PREMIUM OR ANY SUCH AMO UNT BY WHATEVER NAME CALLED, ANY EXPLANATION OFFERED BY SUCH ASSESSEE-COMPANY SHALL BE DEEMED TO BE NOT SATISFAC TORY, UNLESS (A) THE PERSON, BEING A RESIDENT IN WHOSE NAME SUCH CREDIT IS RECORDED IN THE BOOKS OF SUCH COMPANY ALSO OFFER S AN EXPLANATION ABOUT THE NATURE AND SOURCE OF SUCH SUM SO CREDITED; AND (B) SUCH EXPLANATION IN THE OPINION OF THE ASSESSIN G OFFICER AFORESAID HAS BEEN FOUND TO BE SATISFACTORY: PROVIDED FURTHER THAT NOTHING CONTAINED IN THE FIRST PROVISO SHALL APPLY IF THE PERSON, IN WHOSE NAME THE SUM RE FERRED TO THEREIN IS RECORDED, IS A VENTURE CAPITAL FUND OR A VENTURE CAPITAL COMPANY AS REFERRED TO IN CLAUSE (23FB)OF S ECTION 10. 3.2. AS PER SECTION 68 OF THE ACT, ONUS IS UPON TH E ASSESSEE TO DISCHARGE THE BURDEN SO CAST UPON. FIRS T BURDEN IS UPON THE ASSESSEE TO SATISFACTORILY EXPLAIN THE CREDIT ENTRY CONTAINED IN HIS BOOKS OF ACCOUNTS. THE BURDEN HAS TO BE DISCHARGED WITH POSITIVE MATERIAL (OCEANIC PRODUCTS EXPORTING COMPANY VS CIT 241 ITR 497 (KERALA.). THE LEGISLATURE HAD LAID DOWN THAT IN THE ABSENCE OF SA TISFACTORY ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 25 EXPLANATION, THE UNEXPLAINED CASH CREDIT MAY BE CHA RGED U/S 68 OF THE ACT. OUR VIEW IS FORTIFIED BY THE RATIO L AID DOWN IN HONBLE APEX COURT IN P. MOHANKALA (2007)(291 ITR 2 78)(SC). A CLOSE READING OF SECTION 68 AND 69 OF THE ACT MAK ES IT CLEAR THAT IN THE CASE OF SECTION 68, THERE SHOULD BE CRE DIT ENTRY IN THE BOOKS OF ACCOUNT WHEREAS IN THE CASE OF 69 THER E MAY NOT BE AN ENTRY IN SUCH BOOKS OF ACCOUNT. THE LAW IS WE LL SETTLED, THE ONUS OF PROVING THE SOURCE OF A SUM, FOUND TO B E RECEIVED/TRANSACTED BY THE ASSESSEE, IS ON HIM AND WHERE IT IS NOT SATISFACTORILY EXPLAINED, IT IS OPEN TO THE REVENUE TO HOLD THAT IT IS INCOME OF THE ASSESSEE AND NO FURTH ER BURDEN LIES ON THE REVENUE TO SHOW THAT INCOME IS FROM ANY OTHER PARTICULAR SOURCE. WHERE THE ASSESSEE FAILED TO PRO VE SATISFACTORILY THE SOURCE AND NATURE OF SUCH CREDIT , THE REVENUE IS FREE TO MAKE THE ADDITION. THE PRINCIPL E LAID DOWN IN GANPATI MUDALIAR (1964) 53 ITR 623/A. GOVIN DA RAJULU MUDALIAR (34 ITR 807)(SC) AND ALSO CIT VS DU RGA PRASAD MORE (72 ITR 807)(SC) ARE THE LANDMARK DECIS IONS. THE RATIO LAID DOWN THEREIN ARE THAT IF THE EXPLANA TION OF THE ASSESSEE IS UNSATISFACTORY, THE AMOUNT CAN BE TREAT ED AS INCOME OF THE ASSESSEE. THE RATIO LAID DOWN IN DAU LAT RAM ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 26 RAWATMAL 87 ITR 349 (SC) FURTHER THROWS LIGHT ON TH E ISSUE. IN THE CASE OF A CASH ENTRY, IT IS NECESSARY FOR TH E ASSESSEE TO PROVE NOT ONLY THE IDENTITY OF THE CREDITOR BUT ALS O THE CAPACITY OF THE CREDITOR AND GENUINENESS OF THE TRA NSACTIONS. THE ONUS LIES ON THE ASSESSEE, UNDER THE FACTS AVAI LABLE ON RECORD. A HARMONIOUS CONSTRUCTION OF SECTION 106 O F THE EVIDENCE ACT AND SECTION 68 OF THE INCOME TAX ACT W ILL BE THAT APART FROM ESTABLISHING THE IDENTITY OF THE CR EDITOR, THE ASSESSEE MUST ESTABLISH THE GENUINENESS OF THE TRAN SACTION AS WELL AS THE CREDITWORTHINESS OF THE CREDITORS. IN CIT VS KORLAY TRADING COMPANY LTD. 232 ITR 820 (CAL.), IT WAS HELD THAT MERE MENTION OF FILE NUMBER OF CREDITOR WILL N OT SUFFICE AND EACH ENTRY HAS TO BE EXPLAINED SEPARATELY BY TH E ASSESSEE (CIT VS R.S. RATHAORE) 212 ITR 390 (RAJ.). THE HONBLE GUWAHATI HIGH COURT IN NEMI CHANDRA KOTHARI VS CIT (264 ITR 254)(GAU) HELD THAT TRANSACTION BY CHE QUES MAY NOT BE ALWAYS SACROSANCT. IN THE PRESENT APPEALS, A SURVEY OPERATION WAS CARRIED OUT AT THE PREMISES OF THE AS SESSEE ON 24/01/2013 AND IT WAS FOUND THAT THE ASSESSEE MADE CASH DEPOSITS IN THE BANK ACCOUNT AMOUNTING TO RS.22,93, 200/-. THE LD. ASSESSING OFFICER ASKED THE ASSESSEE TO EXP LAIN THE ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 27 NATURE AND SOURCE OF SUCH DEPOSITS. THE ASSESSEE FU RNISHED THE CASH FLOW STATEMENT/CASH SUMMARY FOR THE PERIOD FROM 01/04/2009 TO 31/03/2010. ON EXAMINATION OF THE CAS H SUMMARY, NEGATIVE CASH BALANCE TO THE EXTENT OF RS.4,12,460/- (ASSESSMENT YEAR 2010-11) AND RS.6,74 ,040/- (ASSESSMENT YEAR 2011-12) WAS FOUND, WHICH WAS NOT EXPLAINED BY THE ASSESSEE AND WAS ADDED U/S 68 OF T HE ACT. THE ASSESSEE BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL) AS WELL AS BEFORE THIS TRIBUNAL TOOK THE S TAND THAT THE CASH BALANCE WAS POSITIVE. THE LD. COMMISSIONER OF INCOME TAX (APPEAL) IN VIEW OF THE CLAIM OF THE ASS ESSEE SOUGHT REMAND REPORT FROM THE LD. ASSESSING OFFICER AND THE DOCUMENTS FILED BY THE ASSESSEE WERE ALSO FORWARDED TO HIM. THE CLAIM OF THE ASSESSEE WAS FOUND TO BE INCORRECT . THE REMAND REPORT WAS HANDED OVER TO THE ASSESSEE AND T HERE WAS NO RESPONSE FROM THE ASSESSEE ON FURTHER DATES. IN THE ABSENCE OF ANY REPLY/EXPLANATION FROM THE ASSESSEE, THE ADDITION WAS CONFIRMED. THUS, NEITHER BEFORE THE LD . COMMISSIONER OF INCOME TAX (APPEAL) NOR BEFORE THIS TRIBUNAL, NO EVIDENCE WAS PRODUCED BY THE ASSESSEE IN SUPPORT OF HIS CLAIM. THUS, CONSIDERING THE FACTUA L MATRIX ITA NO.4185 & 4186/MUM/2017 NAVIN SHANTILAL MEHTA. 28 AND THE JUDICIAL PRONOUNCEMENTS DISCUSSED HEREINABO VE, NO INFIRMITY IS FOUND IN THE CONCLUSION OF THE LD. COM MISSIONER OF INCOME TAX (APPEAL), RESULTANTLY, THIS GROUND OF THE ASSESSEE IS HAVING NO MERIT, THEREFORE, DISMISSED. FINALLY, APPEALS OF THE ASSESSEE ARE DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 19/12/2017. SD/- (JOGINDER SINGH) !' / JUDICIAL MEMBER MUMBAI; DATED : 19/12/2017 F{X~{T? P.S / ! &($)!*+,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. )) * / THE CIT, MUMBAI. 4. )) * / CIT- , MUMBAI 5. +,-' , )'#$' / , / DR, ITAT, MUMBAI 6. -01$ / GUARD FILE. &( / BY ORDER, (+#' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI