ABJAL ALI SHA, MUMBAI V. ASST CIT 19(3) PRESTNT JURISDICTION ACIT 23(1), MUMBAI

ITA 4214/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7874 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 08-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Keywords: Bogus purchase; Income from undisclosed sources; Accommodation entries; Retraction
• Section: 143(3); 133A; 133(6); 148

Judgement Text

ITA NOS. 4214 TO 4216/MUM/2015 ABJAL ALI SHA VS. ACIT 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, M UMBAI BEFORE SHRI R.C SHARMA , AM AND SHRI RAVISH SOOD, JM ITA (S) NO S . 4214 TO 4216/ MUM/201 ( / ASSESSMENT YEAR:20 09 - 10, 2010 - 11 AND 2011 - 12 ) SHRI ABJAL ALI SHA , SHOP NO. 39, KHERWADI ROAD, OPP. JAIN TEMPLE, BANDRA (E), MUMBAI 400 051 / VS. ASST. COMMISSIONER OF INCOME - TAX 19(3) , AAYKAR BHAVAN, M.K ROAD, CHURCHGATE, MUMBAI (PRESENT JURISDICTION ACIT 23(1), MUMBAI) ./ ./ PAN NO. AACPS0354F ( / APPELLANT) : ( / RESPONDENT ) / APPELLANT BY : NONE / RESPONDENT BY : SHRI RAJESH KUMAR YADAV, D.R. / DATE OF HEARING : 0 5 .12.2017 / DATE OF PRONOUNCEMENT : 27 .12.2017 / O R D E R PER RAVISH SOOD, JUDICIAL MEMBER: THE PRESENT APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDERS PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 32 , MUMBAI, DATED 18.05 .201 5 , EACH FOR A.YS 200 8 - 0 9, 2009 - 10 AND 2010 - 11 , WHICH IN ITSELF ARISES FROM THE ORDERS PASSED BY THE A.O UNDER SEC. 14 3(3) R.W.S 14 7 OF THE INCOME - TAX ACT, 196 1 (FOR ITA NOS. 4214 TO 4216/MUM/2015 ABJAL ALI SHA VS. ACIT 2 SHORT ACT), DATED 12.02.2014 AND 21.12.2011 FOR A.Y S . 2008 - 09 AND 2009 - 10, RESPECTIVELY, AND UNDER SEC. 143(3) OF THE ACT, 18.03.2013 FOR A.Y 2010 - 11. THAT AS COMMON ISSUES ARE INVOLVED IN THE APPEALS, THEREFORE, THEY ARE TAKEN UP AND DISPOSED OF BY WAY OF A CONSOLIDATE ORDER. WE SHALL FIRST TAKE UP THE APPEAL FOR A.Y. 200 8 - 0 9 , WHEREIN THE ASSESSEE ASSAILING THE ORDER OF THE CIT(A) HAD RAISED BEFORE US THE FOLLOWING GROUNDS OF APPEAL: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) [HEREINAFTER REFERRED TO AS LD. CIT(A)] ERRED IN CONFIRMING THE ADDITION OF RS. 7,51,074/ - ON ACCOUNT OF ALLEGED BOGUS PURCHASES. 2. WITHOUT PREJUDICE TO FOREGOING GROUND OF APPEAL WHILE CONSIDERING QUANTUM OF PUR CHASES LD. CIT(A) AND LEARNED ASSESSING OFFICER [LD. AO] ERRED IN NOT CONSIDERING THE CORRECT QUANTUM OF ALLEGED BOGUS PURCHASES AT RS. 59,83,592/ - INSTEAD OF RS. 60,08,592/ - CONSIDERED BY BOTH LD. AO AND LD. CIT(A). 3. THAT THE ORDER OF LD. CIT( A) IS BAD IN LAW AND ON FACTS. 4. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE FOREGOING GROUNDS OF APPEAL. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE WHO IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF FURNITURE HAD F ILED HIS R ETURN OF INCOME FOR A.Y. 20 08 - 09 ON 12.02.2014 , DECLARING AN INCOME OF RS. 55,55,920/ - . SURVEY PROCEEDINGS UNDER SEC. 133A OF THE ACT WERE CARRIED OUT AT THE PREMISES OF THE ASSESSEE ON 01.02.2013. THE ASSESSEE DURING THE COURSE OF THE SURVEY PROCEEDINGS A DMITTING THAT HE HAD MADE BOGUS PURCHASES OF RS. 2,52,23,634/ - FROM VARIOUS P ARTIES , THEREFORE, MADE A DISCLOSURE OF RS. 2,52,23,634/ - FOR A.YS 2007 - 08 , 2008 - 09, 2009 - 10 AND 2010 - 11. THE CASE OF THE ASSESSEE ITA NOS. 4214 TO 4216/MUM/2015 ABJAL ALI SHA VS. ACIT 3 WAS REOPENED AND A NOTICE UNDER SEC. 148, DATED 30.08.2013 WAS ISSUED TO HIM. THE ASSESSEE SUBMITTED THAT HIS ORIGINAL RETURN OF INCOME FILED ON 30.09.2008 MAY BE TREATED AS A RETURN OF INCOME FILE D IN COMPLIANCE TO NOTICE UNDER SEC. 148. 3. THE A.O DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS OBSERVED THAT THOUGH THE ASSESSEE HAD MADE A DISCLOSURE OF RS. 60,08,592/ - FOR THE YEAR UNDER CONSIDERATION DURING THE COURSE OF THE SURVEY PROCEEDINGS, HOWEVER, HE HAD NOT OFFERED THE SAME IN HIS RET URN OF INCOME. THE A.O CALLED UPON THE ASSESSEE TO EXPLAIN AS WHY THE AMOUNT OF RS. 60,08,592/ - DISCLOSED BY HIM FOR THE YEAR UNDER CONSIDERATION DURING THE COURSE OF THE SURVEY PROCEEDINGS MAY NOT BE ADDED TO HIS INCOME. THE A.O BROUGHT TO THE NOTICE OF T HE ASSESSEE HIS STATEMENT RECORDED UNDER SEC. 133A DURING THE COURSE OF THE SURVEY PROCEEDINGS, WHEREIN HE HAD MADE A DISCLOSURE OF BOGUS PURCHASES OF RS. 60,08,592/ - MADE FROM THE FOLLOWING PARTIES: S.NO. PARTICULARS 1. MANAV IMPEX RS. 6,55,000/ - 2. AMAR ENTERPRISES RS. 21,00,000/ - 3. SAGAR ENTERPRISES RS. 18,092/ - 4. ARADHANA CORPORATION RS. 10,85,000/ - 5. OM CORPORATION RS. 21,50,500/ - TOTAL RS. 60,08,592/ - THE A.O CALLED UPON THE ASSESSEE TO EXPLAIN THAT NOW WHEN HE HAD ADMITTED THAT THE AFORESAID BOGUS PURCHASES REPRESENTED HIS UNACCOUNTED INCOME AND HAD OFFERED THE SAME FOR TAXATION IN HIS STATEMENT RECORDED DURING THE COURSE OF THE SURVEY PROCEEDINGS, THEREFORE, WHY THE SAID AMOUNT WAS NOT OFFERED FOR TAX IN THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION. THE A.O OBSERVED THAT ITA NOS. 4214 TO 4216/MUM/2015 ABJAL ALI SHA VS. ACIT 4 ANOTHER STATEMENT OF THE ASSESSEE WAS RECORDED UNDER SEC. 131, WHEREIN HE HAD ONCE AGAIN AGREED AND DISCLOS ED THE AFORESAID INCOME. THE A.O FURTHER OBSERVED THAT THE ASSESSEE HAD AT NO STAGE RETRACTED HIS STATEMENT RECORDE D DURING THE COURSE OF THE SURVEY PROCEEDINGS. THAT IN THE BACKDROP OF THE AFORESAID STATE OF AFFAIRS, THE A.O IN ORDER TO VERIFY THE GENUINE NESS AND VERACITY OF THE PURCHASE TRANSACTIONS UNDER CONSIDERATION ISSUED LETTERS UNDER SEC. 133(6) TO THE AFORESAID SUPPLIER PARTIES . HOWEVER, ALL THE LETTERS ISSUED UNDER SEC. 133(6) WERE RETURNED UNSERVED. TH E A.O BROUGHT THE AFORESAID FACT TO THE NOTIC E OF THE ASSESSEE, HOWEVER , THE ASSESSEE FAILED TO PLACE ON RECORD ANY EVIDENCE WHICH COULD GO TO PROVE THE GENUINENESS OF HIS CLAIM OF HAVING MADE PURCHASES FROM THE AFORESAID PARTIES. THE A.O OBSERVED THAT DESPITE SUFFICIENT OPPORTUNITY THE ASSESSEE NEIT HER PLACED ON RECORD ANY DOCUMENT IN ORDER TO SUPPORT OF THE GENUINENESS OF THE PURCHASE S , VIZ, LORRY RECEIPTS, OCTROI RECEIPTS, TRANSPORT RECEIPTS, BROKERS/THIRD PARTY EVIDENCE ETC, NOR PRODUCED EITHER OF THE AFORESAID PARTIES. IT WAS FURTHER GATHERED BY THE A.O THAT THE AFOREMENTIONED PARTIES HAD ADMITTED BEFORE THE SALES TAX AUTHORITIES THAT THEY HAD ISSUED ONLY ACCOMM ODATION ENTRIES. THE A.O FURTHER OBSERVED THAT THE ASSESSEE HAD FAILED TO EVEN PROVE THAT THE CHEQUES ISSUED TOWARDS PURCHASE CONSIDERATION WERE DEPOSITED IN THE BANK ACCOUNT S OF THE AFORESAID PARTIES FROM WHOM THE GOODS WERE CLAIMED TO HAVE BEEN PURCHASED . T HE A.O BEING OF THE VIEW THAT THE ASSESSEE HAD FAILED TO DISCHARGE THE ONUS CAST UPON HIM AND PROVE THE GENUINENESS OF PURCHASES MADE FROM THE AFORESAID PARTIES, THEREFORE, HOLDING A CONVICTION THAT AS THE ASSESSEE IN HIS STATEMENT RECORDED UNDER SEC. 133A DURING THE SURVEY PROCEEDINGS HAD ADMITTED THE PURCHASES AS BOGUS AND OFFERED THE SAME AS HIS INCOME FOR THE YEAR UNDER CONSIDERATION , THEREFORE, IT COULD SAFELY BE CONCLUDED THAT THE PURCHASES CLAIMED BY THE ASSESSEE TO HAVE BEEN MADE FROM THE ITA NOS. 4214 TO 4216/MUM/2015 ABJAL ALI SHA VS. ACIT 5 AFORES AID PARTIES WERE NOT GENUINE. THE A.O FURTHER OBSERVED THAT THE STATEMENT OF THE ASSESSEE RECORDED UNDER SEC. 133A DURING THE COURSE OF THE SURVEY PROCEEDINGS WAS NOT RETRACTED BY HIM AND THUS DID HOLD THE GROUND ON DATE. THUS, THE A.O IN THE BACKDROP OF H IS AFORESAID OBSERVATIONS , BEING OF THE VIEW THAT THE ASSESSEE HAD BOOKED BOGUS PURCHASES OF RS. 60,08,592/ - , THEREFORE, MADE AN ADDITION OF THE SAID AMOUNT TO THE INCOME OF THE ASSESSEE. 4. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). THE CIT(A) AFTER DELIBERATING ON THE CONTENTIONS OF THE ASSESSEE RAISED BEFORE HIM IN THE BACKDROP OF THE FACTS OF THE CASE, O BSERVED , THAT THE INFORMATION SHARED BY THE DGIT(INV.) WITH THE A.O AS REGARDS THE INVESTIGATIONS CARRIED OUT BY THE SALES TAX AUTHORITIES, NOWHERE REVEALED THAT THE AFORESAID PARTIES HAD DIRECTLY NAMED THE ASSESSEE AS A BENEFICIARY . THE CIT(A) OBSERVED THAT THE RETRACTION OF THE STATEMENT BY THE ASSESSEE WAS NOT TAKEN INTO CONSIDERATION BY THE A.O, AS THE ASSESSEE HAD IN COM PLIANCE TO THE NOTICE UNDER SEC. 148 REQUESTED THAT HIS ORIGINAL RETURN OF INCOME BE TREATED AS THE RETURN OF INCOME FILED UNDER SEC. 148. THE CIT(A) OBSERVED THAT THOUGH THE A.O HAD MADE THE ADDITIONS IN THE HANDS OF THE ASSESSEE ON THE BASIS OF THE DISC LOSURE MADE BY HIM IN HIS STATEMENT RECORDED UNDER SEC. 133A OF THE ACT, HOWEVER, NO EVIDENCE WAS GATHERED BY THE A.O WHICH COULD GO TO PROVE THAT THE PURCHASES WERE NOT GENUINE. THE CIT(A) OBSERVED THAT THE CBDT VIDE ITS CIRCULAR F.NO. 286/2/2003 - IT ( INV. II), DATED 10.03.2003, HAD DIRECTED THE DEPARTMENT NOT TO OBTAIN DISCLOSURES DURING THE COURSE OF SEARCH AND SURVEY PROCEEDINGS, BUT RATHER , COLLECT INFORMATION WHICH WOULD GO TO PROVE THAT THE ASSESSEE HAD NOT OR IS NOT LIKELY TO DISCLOSE HIS CORRECT INC OME . THE CIT(A) ON THE BASIS OF HIS AFORESAID OBSERVATIONS CONCLUDED THAT AN ADDITION MADE BY THE A.O WHICH IS NOT BACKED BY SUPPORTING MATERIAL/EVIDENCE IMPOUNDED DURING THE COURSE OF THE SURVEY PROCEEDINGS COULD NOT BE SUSTAINED. ITA NOS. 4214 TO 4216/MUM/2015 ABJAL ALI SHA VS. ACIT 6 THE C IT ( A) FURTHER OBSERVED THAT THE ASSESSEE HAD MADE THE PAYMENT OF THE PURCHASE CONSIDERATION VIDE CHEQUES. IT WAS FURTHER OBSERVED BY THE CIT(A) THAT THE DEPARTMENT HAD RESTRICTED THE ADDITION IN THE CASE OF THE WIFE OF THE ASSESSEE , VIZ. MRS. NAZARANA KHATUN BY ADOPTING THE NP/GP @ 12.5% OF THE ALLEGED BOGUS PURCHASES. THE CIT(A) OBSERV ED THAT THE ASSESSEE HAD PRODUCED THE STOCK REGISTER, WHEREIN THE PURCHASES MADE FROM THE AFORESAID PARTIES WERE DULY RECORDED. THE CIT(A) FURTHER TOOK NOTE OF THE FACT THAT TH E SALES CORRESPONDING TO THE AFORESAID PURCHASES WHICH WERE DULY RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE WERE NOT REJECTED BY THE A.O. THE CIT(A) OBSERVED THAT IN THE BACKDROP OF THE AFORESAID FACTS , IT COULD SAFELY BE CONCLUDED THAT THE ASSESSEE HAD PURCHASED THE GOODS, THOUGH NOT FROM THE AFOREMENTIONED PARTIES, BUT FROM THE OPEN/GREY MARKET . THE CIT(A) ON THE BASIS OF HIS AFORESAID OBSERVATIONS CONCLUDED THAT T HE ADDITION IN THE CASE OF THE ASSESSEE WAS LIABLE TO BE RESTRICTED TO THE PROFIT INV OLVED IN MAKING OF SUCH PURCHASES FROM THE OPEN/GREY MARKET. THE A.O ON THE BASIS OF HIS AF ORESAID OBSERVATIONS, RELYING ON THE JUDGMENT OF THE HONBLE HIGH COURT OF GUJARAT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. SIMIT P. SHETH 356 ITR 451 (GUJ ) WORKED OUT THE PROFIT AS REGARDS THE BOGUS PURCHASES MADE BY THE ASSESSEE @12.5% OF THE ALLEGED PURCHASES OF RS. 60,08,592/ - , AND THUS RESTRICTED THE ADDITION TO RS. 7,51,074/ - IN THE HANDS OF THE ASSESSEE. 5. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER OF THE CIT(A) HAD CARRIED THE MATTER IN APPEAL BEFORE US. WE FIND THAT DESPITE THE FACT THAT THE ASSESSEE WAS INFORMED ABOUT THE DATE OF HEARING OF THE APPEAL, HOWEVER , NEITHER ANYBODY HAD PUT UP AN APPEARANCE ON HIS BEHALF, NOR ANY APPLICATION SEEKING AN ADJOURNMENT OF THE CASE HAD BEEN FILED BEFORE US. WE THUS BEING LEFT WITH NO ALTERNATIVE , THEREFORE, PROC E ED WITH IN TERMS OF RULE 24 OF THE APPELLATE TRIBUNAL RULES, 1963 ITA NOS. 4214 TO 4216/MUM/2015 ABJAL ALI SHA VS. ACIT 7 AND DISPOSE OF THE APPEAL AFTER HEARING THE RESPONDENT REVENUE AND PERUSING THE ORDERS OF THE LOWER AUTHORITIES. THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) RELIED ON THE ORDERS OF THE LOWER AUTHORITIES AND THEREIN AVERRED THAT THOUGH THE AS SESSEE HAD MADE BOGUS PURCHASE, THE CIT(A) HAD ALREADY TAKEN A LIBERAL APPROACH AND RESTRICTED THE ADDITION ONLY TO THE EXTENT OF THE PROFIT INVOLVED IN MAKING OF SUCH BOGUS PURCHASES. THE LD. D .R SUBMITTED THAT IT WAS NOT MERELY A CASE OF UNPROVED PURCHAS ES, BUT RATHER , A CASE WHERE THE ASSESSEE HAD ADMITTED SUCH BOGUS PURCHASES AND OFFERED THE SAME AS HIS UNDISCLOSED INCOME IN THE STATEMENT RECORDED UNDER SEC. 133A DURING THE COURSE OF THE SURVEY PROCEEDINGS CONDUCTED ON HIM. 6. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIVE AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. WE FIND THAT THE ASSESSEE HAD ASSAILED THE ADDITION OF RS. 7,51,074/ - SUSTAINED BY THE CIT(A) AS REGARDS THE PURCHASES OF RS. 60,08,592/ - CLAIMED BY THE ASSE SSEE TO HAVE BEEN MADE FROM THE AFORESAID PARTIES . WE HAVE DELIBERATED AT LENGTH ON THE ORDERS OF THE LOWER AUTHORITIES AND FIND THAT THE ASSESSEE HAD IN HIS STATEMENT RECORDED UNDER SEC. 133A DURING THE COURSE OF T HE SURVEY PROCEEDINGS ADMITTED THAT THE A FORESAID PURCHASES OF RS. 60,08,592/ - WERE BOGUS AND HAD OFFERED THE SAME AS HIS INCOME FOR THE YEAR UNDER CONSIDERATION. WE FIND THAT THE CASE OF THE ASSESSEE WAS REOPENED AND A NOTICE UNDER SEC. 148 WAS ISSUED, IN COMPLIANCE TO WHICH THE ASSESSEE SUBMITT ED THAT HIS ORIGINAL RETURN OF INCOME FILED ON 30.09.2008 MAY BE TREATED AS HAVING BEEN FILED IN COMPLIANCE TO THE NOTICE ISSUED TO HIM UNDER SEC. 148. THE A.O OBSERVED THAT DESPITE THE FACT THAT THE ASSESSEE HAD IN HIS STATEMENT RECORDED UNDER SEC. 133A A DMITTED BOGUS PURCHASES OF RS. 60,08,592/ - AND HAD OFFERED THE SAME AS HIS INCOME, HOWEVER, THE SAME WAS NOT SHOWN IN THE RETURN OF INCOME. WE FIND THAT THE A.O MADE INDEPENDENT VERIFICATIONS AS REGARDS THE GENUINENESS OF THE PURCHASES AND ISSUED ITA NOS. 4214 TO 4216/MUM/2015 ABJAL ALI SHA VS. ACIT 8 LETTERS U NDER SEC. 133(6) TO THE AFORESAID SUPPLIER PARTIES , WHICH HOWEVER WERE RETURNED UNSERVED . THE A.O IN THE MEAN TIME ALSO GATHERED INFORMATION THAT THE AFORESAID PARTIES HAD ADMITTED BEFORE THE SALES TAX AUTHORITIES THAT THEY HAD ONLY PROVIDED ACCOMMODATION ENTRIES AND NOT MADE ANY GENUINE SALES OF GOODS. THE A.O BROUGHT TO THE NOTICE OF THE ASSESSEE THAT THE NOT I CES ISSUED TO THE SUPPLIER PARTIES WERE RETURNED UNSERVED, AND THUS CALLED UPON HIM TO SUBSTANTIATE THE GENUINENESS OF THE PURCHASE TRANSACTIONS. HO WEVER, AS THE ASSESSEE FAILED TO DISCHARGE THE ONUS AS STOOD CAST UPON HIM TO PROVE THE AUTHENTICITY OF THE PURCHASE TRANSACTIONS, AND FAILED TO PLACE ON RECORD ANY EVIDENCE AS REGARDS THE SAME, VIZ. LORRY RECEIPTS, OCTROI RECEIPTS, THIRD PARTY/BROKERS EVI DENCE , AS WELL AS THE FACT THAT THE PAYMENT MADE THROUGH BANKING CHANNELS OF THE PURCHASE CONSIDERATION WAS CREDITED IN THE BANK ACCOUNTS OF THE AFORESAID SUPPLIER PARTIES, THEREFORE, THE A.O BEING OF THE VIEW THAT THE PURCHASES WERE NOT GENUINE, THUS ADDED THE ENTIRE ALLEGED PURCHASE AMOUNT OF RS. 60,08,692 TO THE INCOME OF THE ASSESSEE. WE FIND THAT ON APPEAL , THOUGH THE CIT(A) WAS IN AGREEMENT WITH THE OBSERVATION OF THE A.O THAT THE ASSESSEE HAD FAILED TO P ROVE THE GENUINENESS OF THE PURCHASE TRANSACTIONS, BUT CONCLUDED THAT AS THE ASSESSEE WAS MAINTAINING A STOCK REGISTER WHEREIN THE PURCHASES UNDER CONSIDERATION WERE RECORDED AND THE SALES OF THE PURCHASES UNDER CONSIDERATION HAD ALSO NOT BEEN REJECTED BY THE A.O, THEREFORE, IT COULD SAFELY BE CONCLUDED THAT THE ASSESSEE HAD MADE THE PURCHASES, THOUGH NOT FROM THE AFORESAID PARTIES, BUT HOWEVER FROM THE OPEN/GREY MARKET. WE FIND THAT THE CIT(A) ON THE BASIS OF HIS AFORESAID OBSERVATIONS RESTRICTED THE ADDIT ION TO THE EXTENT OF THE PROFIT THAT THE ASSESSEE WOULD HAVE MADE FROM PURCHAS ING THE GOODS FROM THE OPEN/GREY MARKET, AS IN COMPARISON TO THE REGULAR MARKET ON THE BASIS OF WHICH THE PURCHASES WERE BOOKED IN THE BOOKS OF ACCOUNTS. ITA NOS. 4214 TO 4216/MUM/2015 ABJAL ALI SHA VS. ACIT 9 WE FIND THAT THE CIT(A) RELYING ON THE JUDGMENT OF THE HONBLE HIGH COURT OF GUJARAT IN THE CASE OF SIMIT P. SHETH (SUPRA), WORKED OUT THE PROFIT ELEMENT INVOLVED IN MAKING OF SUCH PURCHASES BY THE ASSESSEE FROM THE OPEN/GREY MARKET @12. 5 %% OF THE PURCHASE S OF RS. 60,08,692/ - AN D RESTRICTED THE ADDITION TO RS. 7,51,074/ - . 7. WE HAVE DELIBERATED AT LENGTH ON THE ISSUE UNDER CONSIDERATION , AND AFTER PERUSING THE FACTS ARE IN AGREEMENT WITH THE VIEW OF THE LOWER AUTHORITIES THAT THE ASSESSEE HAD FAILED TO PROVE THE GENUINENESS OF TH E PURCHASES CLAIMED TO HAVE BEEN MADE FROM THE AFORESAID PARTIES. WE FIND THAT THE CIT(A) OBSERVING THAT THE FACT THAT THE ASSESSEE HAD MADE PURCHASES OF THE GOODS UNDER CONSIDERATION, THOUGH N O T FROM THE AFORESAID PARTIES, BUT FROM THE OPEN/GREY MARKET, R ESTRICTED THE ADDITION IN THE HANDS OF THE ASSESSEE TO THE EXTENT OF THE PROFIT INVOLVED IN MAKING OF SUCH PURCHASES . WE FIND THAT THE QUANTIFICATION OF THE PROFIT ELEMENT ON THE PART OF THE CIT(A) IS DULY SUPPORTED BY THE JUDGMENT OF THE HONBLE HIGH COUR T OF GUJARAT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. SIMIT P. SHETH 356 ITR 451 (GUJ) . WE ARE OF THE CONSIDERED VIEW THAT IN THE PRESENT CASE THOUGH THE ASSESSEE HAD IN HIS STATEMENT RECORDED UNDER SEC. 133A RECORDED DURING THE COURSE OF THE SURV EY PROCEEDINGS ADMITTED THAT THE PURCHASES MADE FROM THE AFORESAID PARTIES WERE BOGUS AND HAD OFFERED THE PURCHASE CONSIDERATION OF RS. 60,08,692/ - AS HIS INCOME, AS WELL AS THE A.O HAD ALSO GATHERED INFORMATION THAT THE AFORESAID SUPPLIER PARTIES HAD ADMI TTED BEFORE THE SALES TAX AUTHORITIES THAT THEY HAD MERELY PROVIDED ACCOMMODATION ENTRIES AND HAD NOT CARRIED OUT ANY GENUINE SALES, HOWEVER, INDEPENDENT OF THE AFORESAID FACTS, THE CIT(A) HAD SUSTAINED THE ADDITION PRIMARILY FOR THE REASON THAT THE ASSESS EE HAD FAILED TO SUBSTANTIATE THE GENUINENESS OF THE PURCHASE TRANSACTIONS BY PLACING ON RECORD SUPPORTING DOCUMENTARY EVIDENCE . WE FIND THAT THE CIT(A) AFTER APPRECIATING THE FACT THAT THE PURCHASES ITA NOS. 4214 TO 4216/MUM/2015 ABJAL ALI SHA VS. ACIT 10 WERE RECORDED IN THE STOCK REGISTER AND THE CORRESPONDING SALES OF THE SAME HAD BEEN ACCEPTED BY THE A.O, THEREFORE, HAD FAIRLY CONCLUDED THAT THE ADDITION IN THE HANDS OF THE ASSESSEE WAS LIABLE TO BE RESTRICTED TO THE EXTENT OF THE PROFIT ELEMENT INVOLVED IN MAKING OF THE PURCHASES , WHICH COULD SAFELY BE CONCLUDED TO HAVE BEEN MADE BY THE ASSESSEE FROM THE OPEN/GREY MARKET. WE THUS FINDING OURSELVES TO BE IN AGREEMENT WITH THE WELL REASONED VIEW OF THE CIT(A), THEREFORE, UPHOLD THE SAME. T H E GROUND OF APPEAL NO. 1 IS DISMISSED. 8. THAT AS REGARDS THE CLAIM OF THE ASSESSEE THAT THE LOWER AUTHORITIES HAD ERRED IN TAKING THE QUANTUM OF THE ALLEGED BOGUS PURCHASES AT R S . 60,08,592/ - AS AGAINST RS. 59,83,592/ - , WE FIND THAT THE AGGREGATE OF THE PURCHASES FOR THE Y EAR UNDER CONSIDERATION AS HAD BEEN REPRODUCED AT PAGE 2 & 3 OF THE ASSESSMENT ORDER WORKS OUT TO RS. 60,08,592/ - . WE FIND THAT AS T HERE IS NEITHER ANYTHING AVAILABLE ON RECORD WHICH COULD GO TO PROVE THAT THERE IS ANY SUCH MISTAKE, NOR ANY ASSISTANCE FROM THE ASSESSEE WHO HAD C H OSEN NOT TO PUT UP AN APPEARANCE DURING THE COURSE OF HEARING OF THE APPEAL, THEREFORE, WE ARE CONSTRAINED TO CONCLUDE THAT THE LOWER AUTHORITIES HAD RIGHTLY ADOPTED THE BOGUS PURCHASES AT RS. 60,08,592/ - . THE GROUND OF APPEAL NO. 2 IS DISMISSED . THERE IS NOTHING MENTIONED AGAINST THE GROUND OF APPEAL NO . 3 AND THE GROUND OF APPEAL NO. 4 & 5 BEING GENERAL IN NATURE ARE DISMISSED AS NOT PRESSED. 9. THE APPEAL OF THE ASSESSEE IS DISMISSED. ITA NO. 4215/MUM/2015 A.Y. 2009 - 10 10. WE SHALL NOW TAKE UP THE APPEAL OF THE ASSESSEE FOR A.Y. 2009 - 10, WHEREIN THE ASSESSEE ASSAILING THE ORDER OF THE CIT(A) HAD RAISED THE FOLLOWING GROUNDS OF APPEAL BEFORE US: ITA NOS. 4214 TO 4216/MUM/2015 ABJAL ALI SHA VS. ACIT 11 1. ON THE F ACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) [HEREINAFTER REFERRED TO AS LD. CIT(A)] ERRED IN CONFIRMING THE ADDITION OF RS. 19,12,439 / - ON ACCOUNT OF ALLEGED BOGUS PURCHASES. 2. WITHOUT PREJUDICE TO FOREGOI NG GROUND OF APPEAL WHILE CONSIDERING QUANTUM OF PURCHASES LD. CIT(A) AND LEARNED ASSESSING OFFICER [LD. AO] ERRED IN NOT CONSIDERING THE CORRECT QUANTUM OF ALLEGED BOGUS PURCHASES AT RS.1,52,99,514/ - INSTEAD OF RS.1,37,86,817/ - CONSIDERED BY BOTH LD. AO A ND LD. CIT(A). 3. THAT THE ORDER OF LD. CIT(A) IS BAD IN LAW AND ON FACTS. 4. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE FOREGOING GROUNDS OF APPEAL. 11 . BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE WHO IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF FURNITURE HAD F ILED HIS RETURN OF INCOME FOR A.Y. 20 09 - 10 ON 30.09.2009 , DECLARING AN INCOME OF RS. 61,18,560 / - . THE ASSESSMENT IN THE CASE OF THE CASE OF THE ASSESSEE WAS CONCLUDED UNDER SEC. 143(3) AT RS. 9 8,50,300/ - , VIDE ORDER DATED 21.12.2011. SURVEY PROCEEDINGS UNDER SEC. 133A OF THE ACT WERE CARRIED OUT AT THE PREMISES OF THE ASSESSEE ON 01.02.2013. THE ASSESSEE DURING THE COURSE OF THE SURVEY PROCEEDINGS ADMITTING THAT HE HAD BOGUS PURCHASES OF RS. 2, 52,23,634/ - FROM VARIOUS PERSONS, THEREFORE, MADE A DISCLOSURE OF RS. 2,52,23,634/ - FOR A.YS 2007 - 08, 2008 - 09, 2009 - 10 AND 2010 - 11. THE CASE OF THE ASSESSEE WAS REOPENED AND A NOTICE UNDER SEC. 148, DATED 3 1 .0 3 .2013 WAS ISSUED TO HIM. THE ASSESSEE SUBMITTE D THAT HIS ORIGINAL RETURN OF INCOME FILED ON 30.09.200 9 MAY BE TREATED AS A RETURN OF INCOME FILE D IN COMPLIANCE TO NOTICE UNDER SEC. 148. ITA NOS. 4214 TO 4216/MUM/2015 ABJAL ALI SHA VS. ACIT 12 12 . THE A.O DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS OBSERVED THAT THE THOUGH THE ASSESSEE HAD MADE A DISCLO SURE OF RS. 1,52,99,514/ - TOWARDS BOGUS PURCHASES FOR THE YEAR UNDER CONSIDERATION DURING THE COURSE OF THE SURVEY PROCEEDINGS, HOWEVER, HE HAD NOT OFFERED THE SAME IN HIS RETURN OF INCOME. THE A.O CALLED UPON THE ASSESSEE TO E XPLAIN AS WHY THE AMOUNT OF R S. 1,52,99,514/ - DISCLOSED BY HIM FOR THE YEAR UNDER CONSIDERATION DURING THE COURSE OF THE SURVEY PROCEEDINGS MAY NOT BE ADDED TO HIS INCOME. THE A.O BROUGHT TO THE NOTICE OF THE ASSESSEE HIS STATEMENT RECORDED UNDER SEC. 133A DURING THE COURSE OF THE SUR VEY PROCEEDINGS, WHEREIN HE HAD MADE A DISCLOSURE OF BOGUS PURCHASES OF RS. 1,52,99,514/ - PERTAINING TO THE FOLLOWING PARTIES: S.NO. PARTICULARS 1. MANAV IMPEX RS. 47,10,000 / - 2. AMAR ENTERPRISES RS. 32,84,500/ - 3. SAGAR ENTERPRISES RS. 32,16,582/ - 4. ARADHANA CORPORATION RS. 35,00,432 / - 5. GLOBAL TRADE IMPEX RS. 2,62,500/ - 6. MANI BHARDA TRADING CO. RS. 3,25,500/ - T OTAL RS. 1,52,99,514/ - 13. THE A.O BEING OF THE VIEW THAT THE ASSESSEE HAD FAILED TO DISCHARGE THE ONUS SO CAST UPON HIM AND PROVE THE GENUINENESS OF ITS CLAIM OF PURCHASES MADE FROM THE AFORESAID PARTIES, THEREFORE, HOLDING A CONVICTION THAT AS THE ASSESSEE IN HIS STATEM ENT RECORDED UNDER SEC. 133A DURING THE SURVEY PROCEEDINGS HAD ADMITTED THE PURCHASES AS BOGUS AND OFFERED THE SAME AS HIS INCOME FOR THE YEAR UNDER CONSIDERATION, THEREFORE, CONCLUDED THAT THE PURCHASES CLAIMED BY THE ITA NOS. 4214 TO 4216/MUM/2015 ABJAL ALI SHA VS. ACIT 13 ASSESSEE FROM THE AFORESAID PARTIES W ERE NOT GENUINE AND ADDED THE AMOUNT OF RS. 1,52,99,514/ - TO THE INCOME OF THE ASSESSEE. 14. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). THE CIT(A) THOUGH WAS PERSUADED TO BE IN AGREEMENT WITH THE OBSERVATION S OF THE A.O THAT T HE ASSESSEE HAD FAILED TO PROVE THE GENUINENESS OF THE PURCHASE TRANSACTIONS, BUT OBSERVED THAT AS THE ASSESSEE WAS MAINTAINING A STOCK REGISTER WHEREIN THE PURCHASES UNDER CONSIDERATION WERE RECORDED AND THE SALES CORRESPONDING TO THE PURCHASES UNDER CONS IDERATION HAD BEEN ACCEPTED BY THE A.O, THEREFORE, CONCLUDED THAT THE ASSESSEE HAD MADE THE PURCHASES, THOUGH NOT FROM THE AFORESAID PARTIES, BUT HOWEVER FROM THE OPEN/GREY MARKET. THE CIT(A) ON THE BASIS OF HIS AFORESAID OBSERVATIONS, RESTRICTED THE ADDIT ION TO THE EXTENT OF THE PROFIT THAT THE ASSESSEE WOULD HAVE MADE FROM PURCHAS ING THE GOODS FROM THE OPEN/GREY MARKET, AS IN COMPARISON TO THE REGULAR MARKET ON THE BASIS OF WHICH THOSE WERE BOOKED IN THE BOOKS OF ACCOUNTS, AND RELYING ON THE JUDGMENT OF T HE HONBLE HIGH COURT OF GUJARAT IN THE CASE OF SIMIT P. SHETH (SUPRA), THEREIN WORKED OUT THE PROFIT ELEMENT INVOLVED IN MAKING OF SUCH PURCHASES BY THE ASSESSEE FROM THE OPEN/GREY MARKET @12.5%% OF THE PURCHASE VALUE OF SUCH BOGUS PURCHASES AND RESTRICTED THE ADDITION TO RS. 19,12,439/ - . 15. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER OF THE CIT(A) HAD CARRIED THE MATTER IN APPEAL BEFORE US. WE FIND THAT AS THE FACTS AND THE ISSUE INVOLVED IN THE PRESENT APPEAL ARE THE SAME AS THOSE INVOLVED IN THE AFORESAID APPEAL OF THE ASSESSEE FOR A.Y. 2008 - 09, MARKED AS ITA NO. 4214/MUM/2015, THEREFORE, OUR ORDER PASSED IN THE SAID CASE SHALL APPLY MUTATIS MUTANDIS TO THE PRESENT APPEAL OF THE ASSESSEE FOR A.Y. 2009 - 10, MARKED AS ITA NO. 4215/MUM/2015. T HUS, THE APPEAL OF THE ASSESSEE IS DISMISSED IN TERMS OF OUR ITA NOS. 4214 TO 4216/MUM/2015 ABJAL ALI SHA VS. ACIT 14 OBSERVATIONS RECORDED IN THE APPEAL OF THE ASSESSEE FOR A.Y. 2008 - 09, MARKED AS ITA NO. 4214/MUM/2015. ITA NO. 4216/MUM/2015 A.Y. 20 10 - 1 1 1 6 . WE SHALL NOW TAKE UP THE APPEAL OF THE ASSESSEE FOR A.Y. 20 10 - 1 1 , WHEREIN THE ASSESSEE ASSAILING THE ORDER OF THE CIT(A) HAD RAISED THE FOLLOWING GROUNDS OF APPEAL BEFORE US: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) [HEREINAFTER REFERRED TO AS LD. CIT(A)] ERRED IN CONFIRMING THE ADDITION OF RS. 2,90,793/ - ON ACCOUNT OF ALLEGED BOGUS PURCHASES. 2. THAT THE ORDER OF LD. CIT(A) IS BAD IN LAW AND ON FACTS. 3. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE FOREGOING GROUNDS OF APPEAL. 1 7 . BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE WHO IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF FURNITURE HAD F ILED HIS RETURN OF INCOME FOR A.Y. 20 10 - 1 1 ON 13 . 10 .20 10 , DECLARING AN INCOME OF RS. 13,52,750 / - . THE CASE OF THE ASSESSEE WAS TAKEN UP FOR SCRUTINY ASSESSMENT UNDER SEC. 143(2). SURVEY PROCEEDINGS UNDER SEC. 133A OF THE ACT WERE CARRIED OUT AT THE PREMISES OF THE ASSESSEE ON 01.02.2013. THE ASSESSEE DURING THE COURSE OF THE SURVEY PROCEEDINGS ADMITTING THAT HE HAD BOGUS PURCHASES OF RS. 2,52,23,634/ - FROM VARIOUS PERSONS, THEREFOR E, MADE A DISCLOSURE OF RS. 2,52,23,634/ - FOR A.YS 2007 - 08, 2008 - 09, 2009 - 10 AND 2010 - 11. 1 8 . THE A.O DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS OBSERVED THAT THOUGH THE ASSESSEE HAD MADE A DISCLOSURE OF RS. 23,26,351 / - FOR THE YEAR UNDER CONSIDERATIO N DURING THE COURSE OF THE ITA NOS. 4214 TO 4216/MUM/2015 ABJAL ALI SHA VS. ACIT 15 SURVEY PROCEEDINGS, HOWEVER, HE HAD NOT OFFERED THE SAME IN HIS RETURN OF INCOME. THE A.O CALLED UPON THE ASSESSEE TO EXPLAIN AS WHY THE AMOUNT OF RS. 23,26,351 / - DISCLOSED BY HIM FOR THE YEAR UNDER CONSIDERATION DURING THE COURS E OF THE SURVEY PROCEEDINGS MAY NOT BE ADDED TO HIS INCOME. THE A.O BROUGHT TO THE NOTICE OF THE ASSESSEE HIS STATEMENT RECORDED UNDER SEC. 133A DURING THE COURSE OF THE SURVEY PROCEEDINGS, WHEREIN HE HAD MADE A DISCLOSURE OF BOGUS PURCHASES OF RS. 23,26,3 51 / - MADE FROM THE FOLLOWING PARTIES: S.NO. PARTICULARS 1. AMAR ENTERPRISES RS. 1,17,847 / - 2. ARADHANA CORPORATION RS. 35,568 / - 3. ASIAN STEEL RS. 51,000/ - 4. OM CORPORATION RS. 99,972 / - 5. GLOBAL TRADE IMPEX RS. 13,81,452 / - 6. LIBERTY TRADING CORPORATION RS. 6,05,932 / - 7. RED ROSE STEEL PVT. LTD. RS. 34,580/ - TOTAL RS. 23,26,351 / - 1 9 . THE A.O BEING OF THE VIEW THAT THE ASSESSEE HAD FAILED TO DISCHARGE THE ONUS SO CAST UPON HIM AND PROVE THE GENUINENESS OF ITS CLAIM OF PURCHASES MADE FROM THE AFORESAID PARTIES, THEREFORE, HOLDING A CONVICTION THAT AS THE ASSESSEE IN HIS STATEMENT RECORDE D UNDER SEC. 133A DURING THE SURVEY PROCEEDINGS HAD ADMITTED THE PURCHASES AS BOGUS AND ADMITTED THE SAME AS HIS INCOME FOR THE YEAR UNDER CONSIDERATION, THEREFORE, OBSERVED THAT THE PURCHASES CLAIMED BY THE ASSESSEE FROM THE AFORESAID PARTIES WERE NOT GEN UINE AND ADDED THE AMOUNT OF RS. 23,26,351 / - TO THE INCOME OF THE ASSESSEE. 14. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). THE CIT(A) THOUGH WAS PERSUADED TO BE IN AGREEMENT WITH THE ITA NOS. 4214 TO 4216/MUM/2015 ABJAL ALI SHA VS. ACIT 16 OBSERVATION OF THE A.O THAT THE ASSESSEE HA D FAILED TO PROVE THE GENUINENESS OF THE PURCHASE TRANSACTIONS, BUT CONCLUDED THAT AS THE ASSESSEE WAS MAINTAINING A STOCK REGISTER WHEREIN THE PURCHASES UNDER CONSIDERATION WERE RECORDED AND THE SALES CORRESPONDING TO THE PURCHASES UNDER CONSIDERATION HAD BEEN ACCEPTED BY THE A.O, THEREFORE, CONCLUDED THAT THE ASSESSEE HAD MADE THE PURCHASES, THOUGH NOT FROM THE AFORESAID PARTIES, BUT HOWEVER FROM THE OPEN/GREY MARKET. THE CIT(A) ON THE BASIS OF HIS AFORESAID OBSERVATIONS, THEREFORE, RESTRICTED THE ADDITION TO THE EXTENT OF THE PROFIT THAT THE ASSESSEE WOULD HAVE MADE FROM PURCHAS ING THE GOODS FROM THE OPEN/GREY MARKET, AS IN COMPARISON TO THE REGULAR MARKET ON THE BASIS OF WHICH THOSE WERE BOOKED IN THE BOOKS OF ACCOUNTS, AND RELYING ON THE JUDGMENT OF THE HONBLE HIGH COURT OF GUJARAT IN THE CASE OF SIMIT P. SHETH (SUPRA), THEREIN WORKED OUT THE PROFIT ELEMENT INVOLVED IN MAKING OF SUCH PURCHASES BY THE ASSESSEE FROM THE OPEN/GREY MARKET @12.5%% OF THE PURCHASE VALUE OF RS . 23,26,351/ - AND RESTRICTED THE ADDITION TO RS. 2,90,793/ - . 15. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER OF THE CIT(A) HAD CARRIED THE MATTER IN APPEAL BEFORE US. WE FIND THAT THE FACTS AND THE ISSUE INVOLVED IN THE PRESENT APPEAL ARE THE SAME , AS WERE INVOLVED IN THE AFORESAID APPEAL OF THE ASSESSEE FOR A.Y. 2008 - 09, MARKED AS ITA NO. 4214/MUM/2015, THEREFORE, OUR ORDER PASSED IN THE SAID CASE SHALL APPLY MUTATIS MUTANDIS TO THE PRESENT APPEAL OF THE ASSESSEE FOR A.Y. 20 10 - 1 1 , MARKED AS ITA NO. 421 6 /MUM /2015. THUS, THE APPEAL OF THE ASSESSEE IS DISMISSED IN TERMS OF OUR OBSERVATIONS RECORDED IN THE APPEAL OF THE ASSESSEE FOR A.Y. 2008 - 09, MARKED AS ITA NO. 4214/MUM/2015 . 16. THE APPEAL OF THE ASSESSEE IS DISMISSED. ITA NOS. 4214 TO 4216/MUM/2015 ABJAL ALI SHA VS. ACIT 17 17. THE APPEALS OF THE ASSESSEE FOR A. YS 2008 - 09, 2009 - 10 AND 2010, MARKED AS ITA NO. 4214/MUM/2015, ITA NO. 4215/MUM/2015 AND ITA NO. 4216/MUM/2015, ARE DISMISSED. ORDER PRO NOUNCED IN THE OPEN COURT ON 27 /12/2017 SD/ - SD/ - (R.C SHARMA ) ( RAVISH SOOD ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 27 .12 .2017 PS. ROHIT KUMAR / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI ITA NOS. 4214 TO 4216/MUM/2015 ABJAL ALI SHA VS. ACIT 18