ITO 16(2)(1), MUMBAI V. ASHWIN PURSHOTTAM BAJAJ, MUMBAI

ITA 5207/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1423 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 05-10-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 14-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKASH KUMAR AGARWAL
• Keywords: Bogus purchase; Unexplained expenditure; Income from undisclosed sources; Opportunity of cross examination; Peak credit; Source of fund; Accommodation entries
• Section: 69C; 143(3); 133(6); 148

Judgement Text

A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO. 4736 /MUM/2014 ( / ASSESSMENT YEAR : 2010-11) SHRI ASHWIN PURSHOTAM BAJAJ, C/O SHRI PRAKASH JHUNJHUNWALA, CHARTERED ACCOUNTANT, 5, JOLLY BHAWAN NO. 2, 7 NEW MARINE LINES, CHURCHGATE, MUMBAI 400020. / V. THE ITO WARD 16(2)(1), MUMBAI. ./ PAN : AACPB7522J ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO. 5207 /MUM/2014 ( / ASSESSMENT YEAR : 2010-11) I.T.O. 16(2)(1), 2 ND FLOOR, MATRU MANDIR, TARDEO ROAD, MUMBAI 400 007. / V. SHRI ASHWIN PURSHOTAM BAJAJ, FLAT NO. 64, SARNATH B, BHULA BHAI DESAI ROAD, MUMBAI 400026. ./ PAN : AACPB7522J ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY SHRI PRAKASH JHUNJHUNWALA REVENUE BY : SHRI VIKASH KUMAR AGARWAL / DATE OF HEARING : 05-10-2016 / DATE OF PRONOUNCEMENT : 14-12-2016 ITA 4736/MUM/2014 & ITA NO. 5207/MUM/2014 2 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THESE ARE CROSS APPEALS FILED BY THE ASSESSEE AND THE REVENUE BEFORE THE INCOME-TAX APPELLATE TRIBUNAL, MUMBAI (HEREINAF TER CALLED THE TRIBUNAL). THESE CROSS APPEALS ARE HEARD TOGETHER AND ARE DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVIT Y. THESE APPEALS ARE DIRECTED AGAINST THE APPELLATE ORDER DATED 2 ND MAY, 2014 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 27, MUMBAI (H EREINAFTER CALLED THE CIT(A)), FOR THE ASSESSMENT YEAR 2010-11, THE APPE LLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) ARISING FROM THE ASSESSMENT ORDE R DATED 28 TH MARCH, 2013 PASSED BY THE LEARNED ASSESSING OFFICER (HEREINAFTE R CALLED THE AO) U/S 143(3) OF THE INCOME-TAX ACT,1961 (HEREINAFTER CALL ED THE ACT). 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THE MEMO OF APPEAL FILED WITH THE INCOME-TAX APPELLATE TRIBUNAL, MUMBA I (HEREINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- L.0 ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW , LD. CIT(A) ERRED IN ESTIMATING THE UNDISCLOSED PROFIT OF RS 14,L8 ,097/- @ 12.50% ON ALLEGED BOGUS PURCHASE OF RS.1,13,44,778/-; 2.0 THE LD. CIT(A) BEFORE ESTIMATING THE UNDISCLOSED PROFIT @ 12.50% ON DISPUTED PURCHASE OUGHT TO HAVE APPRECIATED THE UN DERSTATED VITAL FACTS, BEING; A) THE ALLEGED IN`-GENUINE PURCHASE ARE SUPPORTED WITH PURCHASE BILLS, DELIVERY CHALLANS, CONFIRMATION OF ACCOUNTS, PAN, BANK STATEMENTS, STOCK STATEMENTS AND OTHER DOCUMENTS; B) THE PURCHASE IS TREATED AS INGENUINE MERELY RELY ING ON THE INFORMATION RECEIVED FROM THE SALES TAX DEPARTMENT AND WITHOUT ALLOWING A COPY FOR CONFRONTATION AND WITHOUT A LLOWING AN OPPORTUNITY OF CROSS EXAMINATION; ITA 4736/MUM/2014 & ITA NO. 5207/MUM/2014 3 C) THE APPELLANT HAD DISCLOSED THE G.P @ 45.49% ON SA LES (85% ON PURCHASE) WHICH IS IN PAR WITH OWN PAST HISTOR Y AND INDUSTRY'S AVERAGE PROFIT MARGIN; D) THE LD. A.O HAD NOT REJECTED THE APPELLANT'S BOO KS OF ACCOUNTS U/S 145(3) OF THE ACT AND HAVING ACCEPTED THE BOOK RE SULTS IS UNJUSTIFIED IN ESTIMATING THE PROFIT ON ALLEGED UNPROVE D PURCHASE; 3.0 WITHOUT PREJUDICE, LD. CIT(A) OUGHT TO HAVE RESTRI CTED THE ADDITION TO THE EXTENT OF 5% OF ALLEGED INGENUINE PURCH ASE OF RS. 1,13,44,778/-. 3. THE FOLLOWING GROUNDS OF APPEAL ARE RAISED BY TH E REVENUE IN ITA NO. 5207/MUM/2014 FOR THE ASSESSMENT YEAR 2010-11 IN TH E MEMO OF APPEAL FILED WITH TRIBUNAL WHICH READS AS UNDER:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) IS RIGHT IN RESTRICTING THE ADDITION MADE U/S 69C OF RS.1,31,88,2271- TO 12.5% OF RS.1,13,44,7781- I.E. R S.14,18,097/- ON ACCOUNT OF BOGUS PURCHASES? 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) IS RIGHT IN ESTIMATING THE EARNING A T A VERY LOW RATE PARTICULARLY WHEN ALLEGED SELLERS OF GOODS TO THE ASSE SSEE BEING PROVIDER OF ACCOMMODATION ENTRIES HAS ADMITTED BEFORE THE SAL ES TAX DEPARTMENT THAT ACCOMMODATION ENTRIES WERE PROVIDED TO THE ASSESSEE AND ALSO THE FIELD ENQUIRIES RESULTED IN CONFIRMATIO N OF BOGUS PURCHASES. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) WAS RIGHT IN NOT APPRECIATING THE FI NDINGS OF THE A.O. IN THE ASSESSMENT ORDER THAT THE SELLERS WERE NOT AVAILAB LE AT THE ADDRESS SHOWN IN THE PURCHASE BILLS. ' 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL RUNNING A PROPRIETORSHIP FIRM NAMELY M/S THE SHOE B OX INC RETAIL STORE OF FOOTWEAR, BAGS, BELTS, WALLETS AND LEATHER GOODS, B OUTIQUE ETC. HAVING SHOPS AT PUNE, AHMEDABAD, JALANDHAR AND OFFICE AT MUMBAI. ITA 4736/MUM/2014 & ITA NO. 5207/MUM/2014 4 IT WAS OBSERVED BY THE A.O. THAT THE ASSESSEE HAD I NCURRED EXPENDITURE IN TERMS OF PURCHASES OF RS.4,89,88,555.31 , OUT OF WH ICH IT WAS ALLEGED BY THE AO THAT PURCHASES OF RS.1,13,44,77/- WAS MADE FROM THE ALLEGEDLY BOGUS PARTIES AS PER INFORMATION RECEIVED FROM SALES TAX DEPARTMENT, GOVERNMENT OF MAHARASHTRA , WHO AS PER GOVERNMENT OF MAHARASHT RA WEB-SITE ARE SUSPICIOUS PARTIES PROVIDING ACCOMMODATION ENTRIES AND ARE THUS BOGUS BILL GIVING ENTITIES WITHOUT DOING ANY BUSINESS , AS DET AILED HEREUNDER: S NO. NAME OF PARTIES TIN FINANCIAL YEAR AMOUNT 1 ROHIT ENTERPRISES 27020680974V 2009-10 RS. 8,84, 584 2 DEEP ENTERPRISES 27750595164V -DO- RS. 18,09,710 3 KWALITY ENTERPRISES 27790284742V -DO- RS. 60,33 ,496 4 V3 ENTERPRISES 27860613194V -DO- RS. 26,16,988 TOTAL RS.1,13,44,778/- THE SALES TAX DEPARTMENT CONDUCTED INDEPENDENT ENQU IRIES IN EACH OF THE ABOVE PARTIES AND CONCLUDED THAT THESE PARTIES WERE ENGAGED IN THE BUSINESS OF PROVIDING ACCOMMODATION ENTRIES ONLY. THE NOTIC ES WERE ISSUED BY THE AO U/S 133(6) OF THE ACT TO THESE FOUR PARTIES WHICH R ETURNED BACK UNSERVED. THE ASSESSEE WAS ASKED BY THE AO TO PRODUCE ALL THESE P ARTIES. THE ASSESSEE FAILED TO PRODUCE THESE PARTIES BEFORE THE AO TO PR OVE GENUINENESS OF THE CLAIM. THE ASSESSEE SUBMITTED THAT THE PURCHASES WE RE MADE THROUGH BROKERS WHO ARE NOW NOT CO-OPERATING WITH THE ASSES SEE. THE ASSESSEE REQUESTED THAT GP RATIO BE ESTIMATED AT 46% ON THES E PURCHASES. THE ASSESSEE ALSO COULD NOT OFFER EXPLANATION REGARDING THE SOURCE OF THE SAID EXPENDITURE AS WELL THAT PURCHASES ARE GENUINE. THE AO OBSERVED THAT THESE PARTIES DENIED TO SUPPLYING GOODS AS BEING ACCOMMOD ATION ENTRIES, HENCE THE AO OBSERVED THAT THE HUMAN PROBABILITY IS THAT GOOD S AS MENTIONED IN THE PAPER TRANSACTIONS HAVE BEEN PURCHASES BY THE ASSES SEE THROUGH AN UNDISCLOSED ENTITY, WHOSE IDENTITY THE ASSESSEE DOE S NOT WISH TO DISCLOSED AND ALSO PURCHASES WERE MADE FROM UNDISCLOSED SOURC E OF INCOME. THE SAID ITA 4736/MUM/2014 & ITA NO. 5207/MUM/2014 5 UNEXPLAINED EXPENDITURE OF RS. 1,31,88,227/- (BEING MAXIMUM CREDIT BALANCE OUTSTANDING IN THE LEDGER ACCOUNTS OF THE PARTIES, AS AGAINST PURCHASES OF RS.1,13,44,778/- FROM THESE FOUR PARTIES) WAS DEEME D TO BE THE INCOME OF THE ASSESSEE AND WAS ADDED TO THE INCOME OF THE ASSESSE E U/S 69C OF THE ACT WHICH WAS ALLEGED TO BE EXPENDED THROUGH AN UNDISCL OSED SOURCE OF INCOME TO CARRY OUT PURCHASE FROM AN UNDISCLOSED ENTITY, V IDE ASSESSMENT ORDER DATED 28-03-2013 PASSED BY THE AO U/S 143(3) OF TH E ACT. 5. AGGRIEVED BY THE ASSESSMENT ORDER DATED 28.03.20 13 PASSED BY THE A.O. U/S 143(3) OF THE ACT, THE ASSESSEE FILED FIRST APP EAL BEFORE THE LD. CIT(A). 6. BEFORE THE LD. CIT(A), THE ASSESSEE HAS MADE THE FOLLOWING SUBMISSIONS:- GROUND NO.1 TO 5 : ADDITION OF UNEXPLAINED EXPEND ITURE U/S.69C OF RS.1,31,88,2271- IS ERRONEOUS: THE APPELLANT HUMBLY SUBMITS THAT THE ADDITION MADE IN ASSESSMENT U/S.69C OF ALLEGED UNEXPLAINED EXPENDITURE OF PURCH ASE MADE FROM 4 PARTIES NAMED M/S ROHIT ENTERPRISES, M/S DEEP ENTER PRISES, M/S KWALITY ENTERPRISES AND M/S V3 ENTERPRISES OF RS.1, 13,44,776/- AND OF THE OPENING BALANCE OF SUCH 4 PARTIES OF RS.18,43,4 51/- TOTALING TO RS.1,31,88,227/- IS ERRONEOUS AND IS UNJUSTIFIED ON UNDERSTATED REASONS :- . 1.1 THE ENTIRE ADDITION HAD BEEN MADE PURELY ON THE BASIS OF ASSUMPTION AND SURMISE. THERE IS ABSOLUTELY NO EVID ENCE OR MATERIAL ON RECORD TO JUSTIFY THAT THE APPELLANT HAD INCURRED A NY UNEXPLAINED EXPENDITURE TO PURCHASE THE GOODS. THE LD. AO HAD N OT BROUGHT ANY EVIDENCE ON RECORD THAT THE APPELLANT HAD MADE THE UNEXPLAINED PAYMENTS TO ANY UNIDENTIFIED PARTIES, IN ABSENCE OF WHICH THE PROVISION OF SEC 69C CANNOT BE INVOKED. THE APPELLANT, DURING COURSE OF ASSESSMENT, FURNISHED VARIOUS DOCUMENTARY EVIDENCES SUCH AS PURCHASE AND SALE BILLS, CONFIRMATION OF ACCOUNT, P AN OF SUPPLIERS, DETAILS OF PURCHASE, PAYMENTS MADE TO THE SAID 4 PA RTIES AND BANK STATEMENTS TO JUSTIFY THE GENUINENESS OF THE RECORD ED PURCHASE AND PAYMENTS THEREON. THE APPELLANT ALSO FURNISHED A DE TAILED STATEMENT ITA 4736/MUM/2014 & ITA NO. 5207/MUM/2014 6 DISPLAYING THE PURCHASE MADE FROM SUCH 4 PARTIES AN D CORRESPONDING SALES MADE AGAINST SUCH PURCHASES AND PROFIT EARNED THEREON. THE LD. A.O, IGNORING THE ABOVE STATED DOCUMENTS, ERRED SER IOUSLY IN HOLDING THAT THE APPELLANT'S PURCHASE AS INGENUINE AND ASSU MED THAT THE APPELLANT WOULD HAVE INCURRED UNEXPLAINED PURCHASE EXPENDITURE TO SOURCE THE SALES; 1.2 THE LD. A.O IS NOT JUSTIFIED IN MAKING A HARSH PRESUMPTION THAT THE APPELLANT WOULD HAVE PROCURED THE GOODS FROM SO ME UNIDENTIFIED SOURCES AND INCURRED UNEXPLAINED EXPENDITURE (PURCH ASES) AGAINST THE SALES ACCEPTED AS GENUINE. IN THIS CONTEXT, THE APP ELLANT SUBMITS THAT ITS PURCHASES HAD BEEN MADE ONLY THROUGH BROKERS WH O SUPPLIED THE GOODS AT PREMISE (ON SITE) OF THE APPELLANT AND FUR NISHED THE BILLS OF SUCH 4 PARTIES TO THE APPELLANT FOR MAKING THE PAYM ENT AT AGREED TERMS. THE APPELLANT, AS DESIRED BY BROKERS, MADE O NLY THE CHEQUE PAYMENTS AGAINST THESE PURCHASE BILLS AND APPELLANT HAD NOT MADE ANY UNACCOUNTED CASH PAYMENT FOR PURCHASE OF GOODS. THE APPELLANT ALTERNATIVELY SUBMITS THAT EVEN IT IS PRESUMED THAT THE APPELLANT HAD NOT MADE PURCHASES FROM SUCH 4 PARTIES, THEN IT IS POSSIBLE THAT SUCH BROKERS WOULD HAVE PROCURED THE GOODS FROM GREY (LO CAL) MARKET AND HAD SUPPLIED THE PHYSICAL GOODS WITH ALLEGED INGENU INE BILLS. THE LD. A.O HAD NOT DENIED THE FACT THAT THE APPELLANT HAD ACTUALLY RECEIVED THE GOODS, THROUGH BROKERS, AT ITS SITE OFFICE AND SUCH GOODS HAD BEEN ACTUALLY SOLD BY THE APPELLANT AT PROFIT MARGIN OF OVER 85 % ON PURCHASE (45.49% ON SALES). THE APPELLANT DOES NOT HAVE ANY SOURCE OF UNACCOUNTED INCOME, THUS THE POSSIBILITY OF UNEXPLA INED PAYMENT WOULD NOT ARISE. IN ANY CASE, LD. A.O DID NOT BRING ANY EVIDENCE ON RECORD TO JUSTIFY ANY SORT OF UNEXPLAINED PAYMENTS MADE TO THE ALLEGED UNIDENTIFIED PARTIES, ACCORDINGLY THE ADDITION U/S. 69C IS UNJUSTIFIED, (92 TTJ 1126 (AHD), 31 DTR 456 (JP), 147 TTJ 308 (D EL), 10 DTR 281 (JP); 1.3 THE LD. A.O HAD NOT REJECTED THE APPELLANT'S BO OKS OF ACCOUNTS U/S.145(3) OF THE ACT AND HAVING ACCEPTED THE BOOK RESULTS IS NOT JUSTIFIED IN INVOKING THE PROVISION OF SEC 69C OF T HE ACT ON INCORRECTLY ASSUMING THAT THE APPELLANT HAD INCURRED UNEXPLAINE D EXPENDITURE TO SOURCE THE PURCHASE MADE FROM UNKNOWN PARTIES; 1.4 THE APPELLANT ALSO SUBMITS THAT THE ADDITION OF ENTIRE PURCHASE IS UNJUSTIFIED AS IT WOULD LEAD TO A CASE OF TAXING TH E ENTIRE SALES WITHOUT ALLOWING THE DEDUCTION OF THE CORRESPONDING PURCHAS E. THERE CANNOT BE A CASE OF ONLY SALES WITHOUT THE PURCHASES. IN SHOR T, IF THERE IS A SALE, THEN IT IS REQUIRED TO THE PRESUMED THAT THERE IS A CORRESPONDING PURCHASE AGAINST EACH SUCH SALE AND MOREOVER, IN IM PUGNED CASE, ITA 4736/MUM/2014 & ITA NO. 5207/MUM/2014 7 THERE IS A DIRECT NEXUS OF SALES WITH THE PURCHASES . [38 TAXMANN.COM 385 (GUJ), 355 ITR 290 (GUJ), 263 ITR 610 (MP), 304 ITR 52 (MP), 258 ITR 654 (GU}); AS PER COMPARATIVE CHART OF SALES VIS-A-VIS PURCHAS E (COPY ENCLOSED), IT IS EVIDENT THAT EACH PURCHASE CORRESPONDS TO THE SA LES. FOR EXAMPLE : THE PURCHASE OF 257 PAIRS OF FOOTWEAR MADE VIDE BIL L NO 16 ON 17TH SEPTEMBER, 2009 AGGREGATING TO RS. 126,333 FROM DEE P ENTERPRISES WERE SOLD ON 23RD SEPTEMBER, 2009 AT RS. 1,44,273/- . 1.5 THE APPELLANT IN AUDITED P&L ACCOUNT, DISCLOSED A HIGHER GROSS- PROFIT @ 45.49 % ON SALES (85% ON PURCHASE) WHICH I S MOST REASONABLE IN TRADING ACTIVITY OF FOOTWEARS. IN RESPECT OF DIS PUTED PURCHASE MADE FROM THE 4 PARTIES, THE APPELLANT DISCLOSED THE GRO SS PROFIT @ 41.75 % ON SALES, STATED AS UNDER :- PURCHASE FROM THE 4 PARTIES = RS. 1,13,44,778/- SALES CORRESPONDING TO ABOVE PURCHASES = RS. 1,93 ,83,886/- CLOSING STOCK FROM ABOVE PURCHASE = RS. 5 2,882/- GROSS PROFIT = RS.80,91,990/- (41.75%) WITHOUT PREJUDICE, THE APPELLANT MAKES A PRAYER TO ADOPT THE CONCEPT OF REAL INCOME AND ESTIMATE THE TOTAL INCOME @ 45.49 % ON SALES WHICH WOULD TAKE CARE OF THE INGENUINE PURCHASE. IT IS TO FURTHER SUBMIT THAT EVEN IN CASE OF BEST JUDGMENT ASSESSMENT IS PASSED , AFTER REJECTING THE BOOKS OF ACCOUNTS, THEN, IN SUCH CASE, THE TOTAL IN COME IS ESTIMATED, ON THE BASIS OF HONEST GUESS WORK AS PER THE NORMAL PR OFIT IN THE INDUSTRY. [KACHWALA GEMS - 288 ITR 10(SC). THE APPELLANT MAKE S A PRAYER TO ADOPT THE CONCEPT OF REAL INCOME AND ESTIMATE THE S UPPRESSED INCOME OF RS. 7,24,957/- (@ 45.'49% - 41.75% ON RS.1,93,83 ,886/-) THAT REASONABLY WOULD HAVE BEEN EARNED IN SUCH TRADING A CTIVITY; 1.6 THE APPELLANT TO SUBSTANTIATE, THE GENUINENESS OF THE DISCLOSED PURCHASE AND CORRESPONDING SALES, RELIED UPON THE U NDERSTATED DOCUMENTS AS UNDER:-' ' A) DETAILS OF THE FOUR PURCHASES PARTIES ALONG WITH THEIR ADDRESS AND PAN; B) A TABULAR CHART (QUANTITYWISE AND VALUEWISE) DIS PLAYING PURCHASE VIS-A-VIS SALES DISPLAYING THE BILL NUMBER S OF SUPPLIERS/CUSTOMERS, QUANTITY AND AMOUNTS; C) BILL WISE AND QUANTITY WISE DETAILS OF PURCHASE MADE FROM SUCH 4 SUPPLIERS; ITA 4736/MUM/2014 & ITA NO. 5207/MUM/2014 8 D) DETAILS OF PAYMENTS MADE TO SUCH 4 PURCHASE PART IES BY A/C PAYEE CHEQUES AND BANK STATEMENTS; E) PURCHASE BILLS; THE APPELLANT ON FURNISHING THE ABOVESTATED DETAILS /DOCUMENTS HAD REASONABLY DISCHARGED HIS PRIMARY ONUS TO SUBSTANTI ATE THE GENUINENESS OF THE PURCHASE. HOWEVER, LD.AO HAD NOT DISCHARGED THE HEAVY ONUS CASTED UPON HIM TO PROVE CONTRARY THE FA CTS AND HARSHLY MADE THE ADDITION OF UNEXPLAINED EXPENDITURE U/S.69 C OF THE ACT. [29 DTR 267 (PUNE), 10 SOT 319 (HYD) (TM)J. 1.7 THE APPELLANT SUBMITS THAT NO CONTRARY EVIDENCE HAD BEEN BROUGHT ON RECORD TO JUSTIFY THAT THE APPELLANT'S P URCHASES ARE INGENUINE. THE SAID 4 PURCHASE PARTIES IRRESPONSIBL Y GAVE A GENERAL STATEMENT, WITHOUT STATING NAME OF THE APPELLANT, T HAT IT HAD ISSUED ONLY ACCOMMODATION BILLS. SUCH GENERAL STATEMENT WA S RECORDED AT BACK OF THE APPELLANT AND A COPY OF THE STATEMENT W AS NOT PROVIDED TO THE APPELLANT FOR CONFRONTATION AND EVEN NO OPPORTU NITY OF CROSS EXAMINATION WAS ALLOWED TO THE APPELLANT, THUS ADDI TION U/S 69C ON THE BASIS OF MERE STATEMENT IS UNJUSTIFIED AND MAY KINDLY BE DELETED (KISHINCHAND CHNELTEREM DECISION); 1.8 THE APPELLANT FURTHER SUBMITS THAT LD. AO IS NO T JUSTIFIED IN MAKING THE ADDITION OF THE OPENING BALANCE OF SUCH 4 PARTIES OF RS.18,43,451/-. THE APPELLANT HAD NOT CLAIMED THE P URCHASE EXPENSES OF RS.18.43,451/- IN IMPUGNED YEAR, THUS ADDITION O F SUCH PURCHASES (RELATED TO EARLIER YEAR) CANNOT BE MADE IN IMPUGNE D YEAR. FURTHER, LD. A.O. HAD ALREADY ISSUED THE NOTICE U/S 148 OF EARLI ER YEAR VIZ. A.Y. 2009-10 AND HAD PROPOSED TO MAKE THE ADDITION OF TH E PURCHASE OF EARLIER YEAR VIZ. A. Y- 2009-10, THUS THE ADDITION OF PURCHASE MADE IN EARLIER YEAR WHOSE CLOSING BALANCES ARE DISCLOSED A S OPENING BALANCE IN IMPUGNED YEAR IS UNJUSTIFIED. FURTHER, THERE IS ABS OLUTELY NO EVIDENCE ON RECORD THAT THE OPENING BALANCE OF EARLIER YEAR (PURCHASE OF LAST YEAR) WOULD HAVE BEEN PAID IN IMPUGNED YEAR OUT OF UNACCO UNTED SOURCE OF FUNDS, THUS ADDITION OF OPENING BALANCE OF RS. 18,4 3,451/- IS UNJUSTIFIED, THE APPELLANT RELIES ON UNDERSTATED DIRECT JUDICIAL DECISIONS :- ADDITION U/S. 69C CANNOT BE INVOKED IN ABSENCE OF T HE FULL PROOF EVIDENCE . I) ITO VS. SUNSTEEL 92 TTJ 1126 (AHD-ITAT) II) NISRAJ REAL ESTATE & EXPORT(P) LTD VS. ACIT 31 DTR 456 (JP-ITAT) (TRIB) II) ACIT VS. KISHAN LAL JEWELS (P) LTD 147 TTJ 308(DEL- ITAT) ITA 4736/MUM/2014 & ITA NO. 5207/MUM/2014 9 III) SHUBH LAXMI EXPORTS VS. ITO 10 DTR 281 (JP-ITA T) ( TRIB) ONUS IS THE ON THE REVENUE TO PROVE THE PAYMENT TO INVOKE SEC.69C I) HIMALAYA DISTRIBUTORS VS. ITO 29 DTR 267 (PUNE-ITAT ) II) M.P. MALLIWAL VS. JCIT 10 SOT 319 (HYD-ITA T) (TM) III) RAJMAL LEKNICNENC: VS. ACIT 791TD 84 (PUNE-ITA T) ONLY PROFIT EMBEDDED IN THE INGENUINE PURCHASE COUL D BE BROUGHT TO TAX. I) CIT VS. SIMIT P. SHETH 38 TAXMANN.COM 385 (GUJ-HC) II) CIT VS. BHOLANATH POLY FAB PVT LTD 355 ITR 290 (GUJ -HC) III) CIT VS. PRESIDENT INDUSTRIES 258 ITR 654 (GUJ-HC) IV) CIT VS. BALCHAND AJIT KUMER 263 ITR 610 (MP-HC) V) MAN MOHAN SADANI VS. CIT 304 ITR 152 (MP-HC) VI) CIT VS. LEADERS VALVES (P) LTD 285 ITR 435 (P&H-HC) MERELY NON APPEARANCE OF SUPPLIERS WOULD NOT CONCLU DE THE PURCHASE AS INGENUINE I) CIT VS. NIKUNJ EXIMP ENTERPRISES (P) LTD 35 TAXMANN .COM 384 (BOM-HC) IN VIEW OF THE ABOVE, A HUMBLE PRAYER IS MADE :-. A ) TO DELETE THE ADDITION U/S 69C OF RS 1,31,88,227/- OR ALTERNATIVE LY, B) TO ADOPT THE CONCEPT OF REAL INCOME AND RESTRICT THE ADDITION ON ESTIMATING THE SUPPRESSED INCOME OF RS 7,24,957/- BEING 45.49% ON SALES CORRESPONDING TO ALLEGED INGENUINE PURCHASE (45.49% MINUS 41.75 % ON RS. 1,93,83,886) FOR WHICH THE APPELLANT SHALL E VER REMAIN GRATEFUL AND OBLIGE. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE CAME TO THE CONCLUSION THAT QUANTITATIVE DETAILS WERE MAINTAINE D AND THE ASSESSEE BEING A TRADER OF GOODS, THE A.O. HAS NOT DOUBTED THE GENUI NENESS OF SALES, COULD NOT HAVE GONE AHEAD AND MADE ADDITION IN RESPECT OF MAX IMUM CREDIT BALANCE OF PURCHASES ESPECIALLY WHEN THE A.O. HIMSELF RECORDED A FINDING THAT THE ASSESSEE MADE THE PURCHASES FROM SOME OTHER PARTY. THE LD. CIT(A) OBSERVED THAT THE ELEMENT OF PROFIT EMBEDDED IN BOGUS PURCHA SES WHICH THE ASSESSEE WOULD HAVE MADE FROM SOME UNKNOWN ENTITIES NEEDS TO BE COMPUTED. IT WAS OBSERVED BY LEARNED CIT(A) THAT THE PURCHASES MADE FROM FOUR PARTIES DURING ITA 4736/MUM/2014 & ITA NO. 5207/MUM/2014 10 THE YEAR WAS RS. 1,13,44,778/- ON WHICH THE GP REFL ECTED WAS 41% AS AGAINST 46% REFLECTED ON OVER ALL BASIS, HENCE, THERE WAS A SUPPRESSION OF GP RATIO TO THE TUNE OF 5%. THE LEARNED CIT(A) OBSERVED THAT T HE A.O. HAD HELD THAT THE ASSESSEE MUST HAVE PURCHASED THE GOODS FROM SOMEONE ELSE AND NOT FROM THE FOUR PARTIES IN WHOSE NAMES THE BILLS WERE PROCURED AND HENCE, THE ONLY RECOURSE LEFT IS TO ESTIMATE THE PROFIT ELEMENT EMB EDDED IN THE PURCHASES MADE DURING THE YEAR OF RS. 1,13,44,778/- , RATHER THAN ON RS. 1,31,88,227/- (WHICH INCLUDED OPENING BALANCE ADDED BY THE A.O.), WHICH WERE ESTIMATED BY LEARNED CIT(A) @12.5% OF THE PURCHASES MADE DURING THE YEAR OF RS.1,13,88,227/-. THE LD. CIT(A) ACCORDINGLY PARTL Y ALLOWED THE APPEAL OF THE ASSESSEE VIDE APPELLATE ORDERS DATED 02-05-2014. 7.AGGRIEVED BY THE APPELLATE ORDERS DATED 02-05-20 14 PASSED BY THE LD. CIT(A) , BOTH THE ASSESSEE AND REVENUE ARE IN APPEA L BEFORE THE TRIBUNAL. 8. THE ASSESSEE IS CHALLENGING THE ADDITION MADE OF THE UNDISCLOSED PROFIT OF RS. 14,18,097/- @12.5% ON PURCHASES OF RS. 1,13, 44,778/- , WHILE THE REVENUE IN ITS APPEAL IS CHALLENGING DELETION OF AD DITION MADE BY THE AO U/S 69C OF THE ACT TO THE TUNE OF RS. 1,31,88,227/- WHI CH WAS RESTRICTED TO PROFIT ELEMENT EMBEDDED IN THE PURCHASES TO THE TUNE OF 12 .5% OF RS. 1,13,44,778/. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE FOLLOWING PARTIES WERE INCLUDED IN THE LIST OF BOGUS PARTIES BY SALES TAX DEPARTMENT OF GOVERNMENT OF MAHARASHTRA WITH WHOM THE ASSESSEE HAD MADE PURC HASES:- S NO. NAME OF PARTIES TIN FINANCIAL YEAR AMOUNT 1 ROHIT ENTERPRISES 27020680974V 2009-10 RS. 8,84, 584 2 DEEP ENTERPRISES 27750595164V -DO- RS. 18,09,710 3 KWALITY ENTERPRISES 27790284742V -DO- RS. 60,33 ,496 4 V3 ENTERPRISES 27860613194V -DO- RS. 26,16,988 TOTAL RS.1,13,44,778/- ITA 4736/MUM/2014 & ITA NO. 5207/MUM/2014 11 THE A.O. OBSERVED THAT THE ABOVE PARTIES ARE SUSPIC IOUS PARTIES WHO WERE PROVIDING ACCOMMODATION ENTRIES WITHOUT DOING ANY B USINESS AS PER THE INFORMATION RECEIVED FROM SALES TAX DEPARTMENT, GOV ERNMENT OF MAHARASHTRA AND THE ASSESSEE HAD MADE PURCHASES FROM THESE PART IES WITHOUT ACTUAL SUPPLY OF GOODS. THE A.O. ALSO ISSUED NOTICE U/S 1 33(6) OF THE ACT ASKING TO FURNISH CERTAIN DOCUMENTS OF THE ABOVE PARTIES BUT THE NOTICES WERE RETURNED BACK UNSERVED. THE ASSESSEE WAS ALSO ASKED TO PROD UCE THE PARTIES BUT THE ASSESSEE FAILED TO PRODUCE THE PARTIES. THE A.O. H AS MADE ADDITION U/S 69C OF THE ACT ON THE PEAK CREDIT OUTSTANDING IN THE BO OKS OF ACCOUNTS, WHEREBY ADDITION OF RS. 1,31,88,227/- WAS WRONGLY MADE , A S AGAINST TOTAL PURCHASES OF RS. 1,13,44,778/- MADE BY THE ASSESSEE FROM THES E 4 PARTIES. THE A.O. ADDED THE ENTIRE AMOUNT WHILE THE LD. CIT(A) HAS RE STRICTED THE ADDITION BY ESTIMATING GP RATIO OF 12.5% OF RS. 1,13,44,778/- B EING TOTAL PURCHASES MADE FROM THESE FOUR PARTIES. THE LD. COUNSEL FOR THE A SSESSEE SUBMITTED THAT THE SALES ARE NOT IN DOUBT WHICH IS ACCEPTED BY THE REV ENUE. THE LD. COUNSEL ALSO DREW OUR ATTENTION TO THE ORDERS OF AUTHORITI ES BELOW. WHILE, THE LD. D.R. RELIED ON THE ORDER OF THE A.O. 9. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE OBSERVED THAT THE ASSE SSEE IS AN INDIVIDUAL RUNNING A PROPRIETORSHIP FIRM NAMELY M/S THE SHOE B OX INC RETAIL STORE OF FOOTWEAR, BAGS, BELTS, WALLETS AND LEATHER GOODS, B OUTIQUE ETC. HAVING SHOPS AT DIFFERENT PLACES , AND OFFICE AT MUMBAI. INFORMATI ON WAS RECEIVED BY THE AO FROM THE SALES TAX AUTHORITIES, GOVERNMENT OF MAHAR ASHTRA THAT THE ASSESSEE HAS MADE BOGUS PURCHASES TO THE TUNE OF RS . 1.13 CRORES FROM FOLLOWING FOUR PARTIES WHO ARE IN THE LIST OF HAWAL A DEALERS GIVING ACCOMMODATION ENTRIES WITHOUT SUPPLYING ANY GOODS:- S NO. NAME OF PARTIES TIN FINANCIAL AMOUNT ITA 4736/MUM/2014 & ITA NO. 5207/MUM/2014 12 YEAR 1 ROHIT ENTERPRISES 27020680974V 2009-10 RS. 8,84, 584 2 DEEP ENTERPRISES 27750595164V -DO- RS. 18,09,710 3 KWALITY ENTERPRISES 27790284742V -DO- RS. 60,33 ,496 4 V3 ENTERPRISES 27860613194V -DO- RS. 26,16,988 TOTAL RS.1,13,44,778/- THE AO ISSUED NOTICES U/S 133(6) OF THE ACT TO THE ABOVE STATED PARTIES TO SEEK RELEVANT INFORMATION/DOCUMENTS BUT THE NOTICES WERE RETURNED UN- SERVED. THE ASSESSEE WAS ASKED BY THE AO TO PRODUC E THESE FOUR PARTIES BUT THE ASSESSEE COULD NOT PRODUCE THE PARTIES FROM WHO M THE PURCHASES WERE MADE. THE AO MADE ADDITIONS U/S 69C OF THE ACT OF THE PEAK CREDIT OUTSTANDING TO BE PAYABLE TO THESE FOUR PARTIES DUR ING THE YEAR TO THE TUNE OF RS.1,31,88,227/- AS AGAINST PURCHASES OF RS.1,13,44 ,778/- . THE CREDIT FOR PURCHASES FROM THESE FOUR PARTIES OF RS.1,13,44,778 /- ARE APPEARING IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE. THE ASSESSEE HA S TO DISCHARGE THE PRIMARY ONUS AS TO THE GENUINENESS AND BONAFIDE OF THE TRAN SACTION OF PURCHASE OF GOODS. IT IS OBSERVED THAT THE A.O. HAS MADE ADDIT ION OF THE ENTIRE PURCHASES AMOUNT TO RS. 1.13 CRORES BY MAKING ADDITIONS OF RS . 1,31,88,227/- BEING PEAK CREDIT PAYABLE DURING THE YEAR FOR PURCHASES T O THESE PARTIES WHICH INCLUDED BALANCE OF RS.18,43,451/- FOR PURCHASES MA DE IN THE EARLIER YEAR, WHILE THE AO HAS , HOWEVER , NOT DOUBTED THE SALES MADE BY THE ASSESSEE AGAINST THESE PURCHASES. THE ASSESSEE HAS RECONCILE D THE QUANTITATIVE DETAILS OF THE STOCK REFLECTED IN THESE PURCHASES WITH QUAN TITATIVE DETAILS OF STOCK AS PER SALE INVOICES. THE A.O. HAS DOUBTED THE PURCH ASES FROM THESE FOUR ALLEGED ACCOMMODATION ENTRY PROVIDERS BEING HAWALA DEALERS AS CONCLUDED BY SALES TAX DEPARTMENT OF GOVERNMENT OF MAHARASHTRA T O BE BOGUS PURCHASES, THAT THESE FOUR PARTIES ONLY PROVIDED ACCOMMODATION BILLS AND THE GOODS WERE NEVER SUPPLIED BY THESE PARTIES AND THE ASSESSEE AL LEGEDLY MADE PURCHASES FROM SOME OTHER PARTIES FOR WHICH PAYMENTS WERE MAD E THROUGH UNDISCLOSED INCOME. THUS, THE A.O. OBSERVED THAT THE ASSESSEE HAS PURCHASED THE ITA 4736/MUM/2014 & ITA NO. 5207/MUM/2014 13 MATERIAL FROM SOMEONE ELSE WHILE BOGUS BILLS WERE O RGANIZED BY THESE HAWALA DEALERS, HENCE, SECTION 69C OF THE ACT WAS INVOKED BY THE AO AND ADDITIONS WERE MADE BY THE AO. THE CONCLUSION OF THE LD. CIT (A) THAT THE ASSESSEE HAS PURCHASED MATERIAL FROM SOME OTHER DEALERS BUT QUAN TITATIVE RECONCILIATION OF THE STOCK WAS DULY DONE BY THE ASSESSEE OF THE SALE AND PURCHASE AND HENCE THE PROFIT ELEMENT IN THIS ACCOMMODATION ENTRIES AR E TO BE ADDED TO THE INCOME CANNOT BE FAULTED . THE LD. CIT(A) RESTRICT ED THE ADDITION BY ESTIMATING GP RATIO OF 12.5% OF RS. 1,13,44,778/- B EING PURCHASES FROM THESE ALLEGED FOUR ACCOMMODATION ENTRY PROVIDERS. WE DO N OT FIND ANY INFIRMITY IN THE WELL REASONED ORDER OF THE LD. CIT(A) WHEREBY N ET PROFIT WAS ESTIMATED WHICH WAS A REASONABLE ESTIMATION MADE BY LEARNED C IT(A) AND WE SUSTAIN/AFFIRM THE ORDER OF LEARNED CIT(A). IN THE RESULT , WE DISMISS BOTH THE APPEAL OF THE ASSESSEE AS WELL OF REVENUE. WE ORDER ACCORDINGLY. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO. 4736/MUM/2014 AND THE APPEAL FILED BY THE REVENUE I N ITA NO. 5207/MUM/14 FOR THE ASSESSMENT YEAR 2010-11 ARE DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH DECEMBER, 2016. # $% &' 14-12-2016 ( ) SD/- SD/- (MAHAVIR SINGH) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 14-12-2016 [ .9../ R.K. R.K. R.K. R.K. , EX. SR. PS ITA 4736/MUM/2014 & ITA NO. 5207/MUM/2014 14 !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI A BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI