GHISULAL HAMERMAL AND COMPANY, MUMBAI V. INCOME TAX OFFICER, 19(1)(3), MUMBAI

ITA 6739/MUM/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9873 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 27-11-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SAURABH DESH
• Keywords: Bogus purchase; Tangible material; Corroborative evidences; Accommodation entries; Reason to believe
• Section: 143(3); 133(6); 148

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , BEFORE SHRI SHAMIM YAHYA , A M ./ I.T.A. NO. 6739/MUM/2017 ( / ASSESSMENT YEA R: 2009 - 10 ) M/S. GHISULAL HAMERMAL & CO. 14, 1 ST CARPENTER STREET, NULL BAZAR, MUMBAI - 400 004 / VS. INCOME - TAX OFFICER 19(1)(3), ROOM NO. 220, 2 ND FLOOR, MATRU MANDIR, TARDEO, MUMBAI - 400 007 ./ ./ PAN/GIR NO. AAAFG 0686 J ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : NONE / RESPONDENT BY : SHRI SAURABH DESHPANDE / DATE OF HEARING : 01.03.2018 / DATE OF PRONOUNCEMENT : 07.03 .2018 / O R D E R PER S HAMIM YAHYA , A. M.: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED THE AGAINST ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 29.09.2017, PERTAINING TO ASSESSMENT YEAR 2009 - 10. 2. I N THIS APPEAL , THE ASSESSEE CHALL ENGES THE LD. COMMISSIONER OF INCOME TAX (APPEALS)S ORDER CONF I RMING THE VALIDITY OF REOPENING AS WELL AS SUSTAINING 12.5% ADDITION ON ACCOUNT OF BOGUS PURCHASE. 2 ITA NO. 6739/MUM/2017 (A.Y. 2009 - 10) M/S. GHISULAL HAMERMAL & CO. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME FOR ASSESSMENT YE AR 2009 - 10 ON 27.09.2009 DECLARING TOTAL INCOME AT RS.NIL. SUBSEQUENTLY, THE CASE WAS REOPENED U/S. 147, BY ISSUING NOTICE U/S. 148 OF THE ACT ON 08.03.2014 AND SERVED UPON THE ASSESSEE , BASED ON THE INFORMATION RECEIVED FROM THE DGIT (INV.), MUMBAI, THAT THE ASSESSEE IS ONE OF THE BENEFICIARIES OF THE ACCOMMODATION ENTRIES PROVIDED BY SOME OF THE MVAT DEALERS WHO WERE INDULGING IN ISSUING BOGUS SALE/PURCHASE BILLS, WHICH WAS INVESTIGATED AND KEPT ON THE PUBLIC DOMAIN BY THE SALES TAX DEPARTMENT. ASSESSMENT U/S. 143(3) R.W.S 147 OF THE I. T. ACT, 1961 WAS COMPLETED BY THE ASSESSING OFFICER ON 14.03.2015 DETERMINING THE TOTAL INCOME AT RS.3,06,670/ - . 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, TO ASCERTAIN THE GENUINENESS OF PURCHASES SHOWN IN THE ACCOUN TS, NOTICES U/S 133(6) OF THE ACT WERE ISSUED BY THE ASSESSING OFFICER TO BOTH THE PARTIES FROM WHOM THE PURCHASES WERE MADE, BY REGISTERED POST. THE NOTICES WERE RETURNED UNSERVED BY THE POSTAL AUTHORITIES WITH A REMARK 'NOT KNOWN', 'NO SUCH ADDRESS' & 'L EFT' ETC. THE ASSESSING OFFICER ASKED TO PROVE THE GENUINENESS OF THE SAID PARTIES AND THE PURCHASES MADE FROM THEM WITH ADEQUATE SUPPORTING EVIDENCES AND ALSO TO PRODUCE THE PARTIES FOR VERIFICATION. HOWEVER , THE ASSESSEE FAILED TO DO SO, AND ONLY FURNISH ED SOME DETAILS AND COULD NOT PRODUCE THE VITAL DOCUMENTS LIKE DELIVERY CHALLANS, TRANSPORT RECEIPTS, GOODS INWARD REGISTER MAINTAINED AT GODOWN ETC., ON GOING THROUGH THE SUBMISSIONS AND CONTENTIONS OF THE ASSESSEE AT LENGTH, THE ASSESSING OFFICER CONCLUD ED THAT THE ASSESSEE DID NOT 3 ITA NO. 6739/MUM/2017 (A.Y. 2009 - 10) M/S. GHISULAL HAMERMAL & CO. PURCHASE D ANY GOODS FROM THE ABOVE PARTIES. THE ASSESSING OFFICER ALSO REJECTED THE BOOKS OF ACC OUNTS BY INVOKING PROVISIONS OF SEC. 145(3) OF THE ACT, AS HE WAS NOT SATISFIED ABOUT THE CORRECTNESS AND COMPLETENESS OF THE ACCOU NTS OF THE ASSESSEE. ASSESSING OFFICER CONCLUDED THAT INTENTION OF INDULGING IN SUCH ACTIVITY IS TO SUPPRESS THE TRUE PROFITS AND TO REDUCE THE TAX LIABILITY. THEREFORE, ELEMENT EMBEDDED IN SUCH PURCHASES IS TAKEN AS THE PROFIT EARNED FROM PURCHASES SHOWN TO HAVE BEEN MADE FROM THE TWO PARTIES AND ESTIMATED THE PROFIT @ 12.5% OF THE TOTAL NON - GENUINE PURCHASES OF RS.24,53,390/ - WHICH WORKED OUT TO RS.3,06,674/ - , AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 5. AGAINST THE ABOVE ORDER , THE ASSESSEE APPEAL ED BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) CHALLENGING BOTH THE REOPENING AS WELL AS MERITS OF ADDITION. 6. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE REOPENING AS WELL AS MERITS OF THE ADDITION. 7. AGAINST THE ABOVE ORDER , T HE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 8. I HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE RECORDS. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE NOTICE. 9. AS REGARDS THE REOPENING OF THE ASSESSEE, ON A CAREFUL CONSIDERATION, I NOTE THAT IN THIS CASE INFORMATION WAS RECEIVED BY THE ASSESSING OFFICER FROM DGIT INVESTIGATION (MUMBAI) THERE ARE SOME PARTIES WHO ARE ENGAGED IN THE HAWALA TRANSACTIONS AND ARE ALSO INVOLVED IN ISSUING BOGUS PURCHASE BILLS FOR SALE OF MATERIAL 4 ITA NO. 6739/MUM/2017 (A.Y. 2009 - 10) M/S. GHISULAL HAMERMAL & CO. WITHOUT D ELIVERY OF GOODS, WHICH INFORMATION WAS BASED ON INFORMATION RECEIVED BY REVENUE FROM MAHARASHTRA SALES TAX AUTHORITY. INFORMATION WAS RECEIVED THAT THE ASSESSEE WAS BENEFICIARY OF HAWALA ACCOMMODATION ENTRIES FROM ENTRY PROVIDERS BY WAY OF BOGUS PURCHASE. THE ACCOMMODATION ENTRY PROVIDER HAS DEPOSED AND ADMITTED BEFORE THE MAHARASHTRA SALES TAX AUTHORITY VIDE STATEMENT/ AFFIDAVIT THAT THEY WERE ENGAGED IN PROVIDING BOGUS ACCOMMODATION ENTRIES WHEREIN BOGUS SALE BILLS WERE ISSUED WITHOUT DELIVERY OF GOODS, I N CONSIDERATION FOR COMMISSION. THESE, ACCOMMODATION ENTRY PROVIDERS, ON RECEIPT OF CHEQUES FROM PARTIES AGAINST BOGUS BILLS FOR SALE OF MATERIAL, LATER ON WITHDREW CASH FROM THEIR BANK ACCOUNTS, WHICH WAS RETURNED TO BENEFICIARIES OF BOGUS BILLS AFTER DE DUCTION OF THEIR AGREED COMMISSION. THE ASSESSEE WAS STATED TO BE ONE OF THE BENEFICIARIES OF THESE BOGUS ENTRIES OF SALE OF MATERIAL FROM HAWALA ENTRY OPERATORS IN FAVOUR OF THE ASSESSEE WHEREIN THE ASSESSEE MADE ALLEGED BOGUS PURCHASES THROUGH THESE BOGU S BILLS ISSUED BY HAWALA ENTRY PROVIDERS IN FAVOUR OF THE ASSESSEE. THESE DEALERS WERE SURVEYED BY THE SALES TAX INVESTIGATION DEPARTMENT WHEREBY THE DIRECTORS OF THESE DEALERS HAVE ADMITTED IN A DEPOSITION VIDE STATEMENTS/AFFIDAVIT MADE BEFORE THE SALES T AX DEPARTMENT THAT THEY WERE INVOLVED IN. ISSUING BOGUS PURCHASE BILLS WITHOUT DELIVERY OF ANY MATERIAL. THERE IS A LIST OF SUCH PARTIES WHEREIN THE ASSESSEE IS STATED TO BE BENEFICIARY OF BOGUS PURCHASE BILLS. 10. FROM THE ABOVE, I FIND THAT TANGIBLE AND COGENT INCRIMINATING MATERIAL WERE RECEIVED BY THE AO WHICH CLEARLY SHOWED THAT THE ASSESSEE WAS BENEFICIARY OF BOGUS 5 ITA NO. 6739/MUM/2017 (A.Y. 2009 - 10) M/S. GHISULAL HAMERMAL & CO. PURCHASE ENTRIES FROM BOGUS ENTRY PROVIDERS WHICH FORMED THE REASON TO BELIEVE BY THE AO THAT INCOME HAS ESCAPED ASSESSMENT. THE INFO RMATION SO RECEIVED BY THE AO HAS LIVE LINK WITH REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT. ON THESE INCRIMINATING TANGIBLE MATERIAL INFORMATION, ASSESSMENT WAS REOPENED. AT THIS STAGE THERE HAS TO BE PRIMA FACIE BELIEF BASED ON SOME TANGIBLE AN D MATERIAL INFORMATION ABOUT ESCAPEMENT OF INCOME AND THE SAME IS NOT REQUIRED TO BE PROVED TO THE GUILT. IN THIS REGARD, I REFER TO THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF CIT(A) VS. RAJESH JHAVERI STOCK BROKERS P. LTD, 291 ITR 500: - 'SECTIO N 147 AUTHORISES AND PERMITS THE ASSESSING OFFICER TO ASSESS OR REASSESS INCOME CHARGEABLE TO LAX IF HE HAS REASON TO BELIEVE THAT INCOME FOR ANY ASSESSMENT YEAR HAS ESCAPED ASSESSMENT. THE WORD 'REASON' IN THE PHRASE 'REASON TO BELIEVE' WOULD MEAN CAUSE O R JUSTIFICATION. IF THE AO HAS CAUSE OR JUSTIFICATION TO KNOW OR SUPPOSE (HAT INCOME HAD ESCAPED ASSESSMENT, IT CAN BE SAID TO HAVE REASON TO BELIEVE THAT AN INCOME HAD ESCAPED ASSESSMENT. THE EXPRESSION CANNOT BE READ TO MEAN THAT THE AO SHOULD HAVE FINAL LY ASCERTAINED THE FACT BY LEGAL STATUTE WITH SOLICITUDE FOR THE PUBLIC EXCHEQUER WITH AN INBUILT IDEA OF FAIRNESS TO TAXPAYERS. AS OBSERVED BY THE SUPREME COURT IN CENTRAL PROVINCES MANAGNESE ORE CO, LTD. V. ITO(1991) 191 ITR 662, FOR INITIATION OF ACTION UNDER SECTION 147(A) (AS THE PROVISION STOOD AT THE RELEVANT TIME) FULFILLMENT OF THE TWO REQUISITE CONDITIONS IN THAT REGARD IS ESSENTIAL. AT THAT STAGE, THE FINAL OUTCOME OF THE PROCEEDING IS NOT RELEVANT. IN OTHER WORDS, AT THE INITIATION STAGE, WHAT I S REQUIRED IS 'REASON TO BELIEVE', BUT NOT THE ESTABLISHED FACT OF ESCAPEMENT OF INCOME. AT THE STAGE OF ISSUE OF NOTICE, THE ONLY QUESTION IS WHETHER THERE WAS RELEVANT MATERIAL ON WHICH A REASONABLE PERSON COULD HAVE FORMED A REQUISITE BELIEF WHETHER THE MATERIALS WOULD CONCLUSIVELY PROVE THE ESCAPEMENT IS NOT THE CONCERN AT THAT STAGE. THIS IS SO BECAUSE THE FORMATION OF BELIEF BY THE AO IS WITHIN THE REALM OF SUBJECTIVE SATISFACTION ITO V. SELECTED DALURBAND COAL CO, (P.) LTD. (1996) 217 ITR 597 (SUPREM E COURT): RAYMOND WOOLLEN MILLS LTD. V. ITO (1999) 236 ITR 34 (SUPREME COURT). 11. THE ABOVE DISCUSSION AND PRECEDENT FROM APEX COURT FULLY JUSTIFY THE VALIDITY OF REOPENING IN THIS CASE. FURTHER I FIND THAT THE LD. CIT(A) HAS CAREFULLY EXAMINED 6 ITA NO. 6739/MUM/2017 (A.Y. 2009 - 10) M/S. GHISULAL HAMERMAL & CO. THE ISSU E AND HAS PROPERLY APPRECIATED THE ISSUE. HENCE, I DO NOT FIND ANY INFIRMITY IN THE SAME. ACCORDINGLY, I UPHOLD THE ORDER OF THE LD. CIT(A) ON THE ISSUE OF REOPENING. SINCE, THE ISSUE HAS BEEN DECIDED ON THE BASIS OF THE HONBLE APEX COURT DECISION, THE O THER CASE LAWS REFERRED BY ASSESSEE ARE NOT SUPPORTING THE ASSESSEES CASE. 12. AS REGARDS MERITS OF ADDITION, I FIND THAT CREDIBLE AND COGENT INFORMATION WAS RECEIVED IN THIS CASE BY THE ASSESSING OFFICER THAT CERTAIN ACCOMMODATION ENTRY PROVIDER/BOGUS SUPPLIERS WERE BEING USED BY CERTAIN PARTIES TO OBTAINED BOGUS BILLS, ASSESSEE WAS FOUND TO HAVE TAKEN ACCOMMODATION ENTRY/BOGUS PURCHASE BILLS DURING THE CONCERNED ASSESSMENT YEAR FROM DIFFERENT PARTIES. BASED UPON THIS INFORMATION ASSESSMENT WAS REOPENED . THE CREDIBILITY OF INFORMATION RELATING TO REOPENING HAS BEEN CONFIRMED BY THE LEARNED CIT(A) AND BY ITAT AS ABOVE. FURTHERMORE IT IS NOTED THAT IN SUCH FACTUAL SCENARIO ASSESSING OFFICER HAS MADE THE NECESSARY ENQUIRY. THE ISSUE OF NOTICE TO ALL THE P ARTIES HAVE RETURNED UNSERVED. ASSESSEE HAS NOT BEEN ABLE TO PROVIDE ANY CONFIRMATION FROM ANY OF THE PARTY. ASSESSEE HAS ALSO NOT BEEN ABLE TO PRODUCE ANY OF THE PARTIES. THE NECESSARY EVIDENCE FOR TRANSPORTATION OF GOODS HAVE NOT BEEN PROVIDED BY THE ASS ESSEE. IN THIS FACTUAL SCENARIO IT IS AMPLY THAT ASSESSEE HAS OBTAINED BOGUS PURCHASE BILLS. MERE PREPARATION OF DOCUMENTS FOR PURCHASES CANNOT CONTROVERT OVERWHELMING EVIDENCE THAT THE PROVIDER OF THESE BILLS ARE BOGUS AND NON - EXISTENT AND THERE IS NO COG ENT EVIDENCE OF TRANSPORTATION OF GOODS. THE SALES TAX DEPARTMENT IN ITS ENQUIRY HAVE FOUND THE PARTIES TO BE PROVIDING BOGUS 7 ITA NO. 6739/MUM/2017 (A.Y. 2009 - 10) M/S. GHISULAL HAMERMAL & CO. ACCOMMODATION ENTRIES. THE ASSESSING OFFICER ALSO ISSUED NOTICES TO THESE PARTIES AT THE ADDRESSES PROVIDED BY THE ASSESSEE. ALL T HESE NOTICES HAVE RETURNED UNSERVED. ASSESSEE HAS NOT BEEN ABLE TO PRODUCE ANY OF THE PARTIES. THE ASSESSING OFFICER HAS NOTED THAT THERE IS NO COGENT EVIDENCE OF THE PROVISION OF GOODS. NEITHER THE ASSESSEE HAS BEEN ABLE TO PRODUCE ANY CONFIRMATION FROM T HESE PARTIES. IN SUCH CIRCUMSTANCES, THERE IS NO DOUBT THAT THESE PARTIES ARE NON - EXISTENT. 13. HENCE PURCHASE BILLS FROM THESE NON - EXISTENT THE/BOGUS PARTIES CANNOT BE TAKEN AS COGENT EVIDENCE OF PURCHASES, IN LIGHT OF THE OVERWHELMING EVIDENCE THE REVEN UE AUTHORITIES CANNOT PUT UPON BLINKERS AND ACCEPT THESE PURCHASES AS GENUINE. THIS PROPOSITION IS DULY SUPPORTED BY HONBLE APEX COURT DECISION IN THE CASE OF SUMATI DAYAL 214 ITR 801 AND DURGA PRASAD MORE 82 ITR 540. IN THE PRESENT CASE THE ASSESSEE WAN TS THAT THE UNASSAILABLE FACT THAT THE SUPPLIERS ARE NON - EXISTENT AND THUS BOGUS SHOULD BE IGNORED AND ONLY THE DOCUMENTS BEING PRODUCED SHOULD BE CONSIDERED. THIS PROPOSITION IS TOTALLY UNSUSTAINABLE IN LIGHT OF ABOVE APEX COURT DECISIONS. 14. IN THESE C IRCUMSTANCES LEARNED DEPARTMENTAL REPRESENTATIVE HAS REFERRED TO HONBLE GUJARAT HIGH COURT DECISION IN THE CASE OF APEX APPEAL NO. 240 OF 2003 IN THE CASE OF N K INDUSTRIES VS DY CIT, ORDER DATED 20.06.2016, WHEREIN HUNDRED PERCENT OF THE BOGUS PURCHASE S WAS HELD TO BE ADDED IN THE HANDS OF THE ASSESSEE AND TRIBUNALS RESTRICTION OF THE ADDITION TO 25% OF THE BOGUS PURCHASES WAS SET ASIDE. IT 8 ITA NO. 6739/MUM/2017 (A.Y. 2009 - 10) M/S. GHISULAL HAMERMAL & CO. WAS EXPOUNDED THAT WHEN PURCHASE BILLS HAVE BEEN FOUND TO BE BOGUS 100% DISALLOWANCE WAS REQUIRED. THE SPECIAL LEA VE PETITION AGAINST THIS ORDER ALONG WITH OTHERS HAS BEEN DISMISSED BY THE HONBLE APEX COURT VIDE ORDER DATED 16.1.2017. 15. I FURTHER NOTE THAT HONBLE RAJASTHAN HIGH COURT HAS SIMILARLY TAKEN NOTE OF DECISIONS OF THE APEX COURT ON THE ISSUE OF BOGUS PU RCHASES IN THE CASE OF CIT JAIPUR VS SHRUTI GEMS IN ITA NO. 658 OF 2009. THE HONBLE HIGH COURT HAS REFERRED TO THE DECISION OF CIT JAIPUR VS. ADITYA GEMS, D. B . IN ITA NO. 234 OF 2008 DATED 02.11.2016, WHEREIN THE HONBLE COURT HAD INTER ALIA HELD AS UNDE R: 'CONSIDERING THE LAW DECLARED BY THE SUPREME COURT IN THE CASE OF VIJAY PROTEINS LTD. VS. COMMISSIONER OF INCOME TAX, SPECIAL LEAVE TO APPEAL (C) NO.8956/2015 DECIDED ON 06.04.2015 WHEREBY THE SUPREME COURT HAS DISMISSED THE SLP CONFIRMED THE ORDER DAT ED 09.12.2014 PASSED BY THE GUJARAT HIGH COURT AND OTHER DECISIONS OF THE HIGH COURT OF GUJARAT IN THE CASE OF SANJAY OILCAKE INDUSTRIES VS. COMMISSIONER OF INCOME TAX (2009) 316 ITR 274 (GUJ) AND N.K. INDUSTRIES LTD. VS. DY. C.I.T., TAX APPEAL NO.240/2003 DECIDED ON 20.06.2016, THE PARTIES ARE BOUND BY THE PRINCIPLE OF LAW PRONOUNCED IN THE AFORESAID THREE JUDGMENTS. 16. UPON CAREFUL CONSIDERATION I NOTE THAT THIS IS NOT AN APPEAL BY THE REVENUE. HENCE, IT WILL NOT BE APPROPRIATE TO CONSIDER AND TAKE AW AY THE RELIEF ALREADY GRANTED BY THE LD. CIT(A) TO THE ASSESSEE. AS HELD BY THE HON'BLE JURISDICTIONAL HIGH COURT WHEN SALES ARE NOT DOUBTED 100% DISALLOWANCE FOR BOGUS PURCHASE IS NOT PERMISSIBLE. ALTHOUGH FACTS OF THE CASE WAS A LITTLE DIFFERENT INASMUC H AS ALL THE SALES WERE TO GOVERNMENT DEPARTMENT. BE AS IT MAY, THIS ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS IN ACCORDANCE WITH THE HONBLE GUJARAT HIGH COURT DECISION IN THE 9 ITA NO. 6739/MUM/2017 (A.Y. 2009 - 10) M/S. GHISULAL HAMERMAL & CO. CASE OF CIT VS SIMIT P. SHETH [2013] 356 ITR 451 (GUJ). ACCORDIN GLY, I UPHOLD THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 17 . IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 07.03.2018 SD/ - (S HAMIM YAHYA ) / A CCOUNTANT MEMBER MUMBAI ; DATED : 07.03.2018 . . ./ ROSHANI , SR. PS / COPY OF THE ORDE R FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI