RAPAPORT INDIA PRIVATE LIMITED, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 5(3)(1), MUMBAI

ITA 6978/MUM/2017

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 1170 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 07-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Bogus purchase; Question of law; Wrong claim
• Section: 68; 69C; 143(3); 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “D" BENCH”, MUMBAI BEFORE SHRI ABY T. VARKEY, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER ITA NO. 6978/MUM/2017 (A.Y. 2007-08) M/s. Rapaport India Pvt. Ltd., 101, The Capital, Plot #C-70 Bandra Kurla Complex Bandra (E), Mumbai -400051 PAN: AABCR9998L v. DCIT – Circle – 5(3)(1) Aayakar Bhavan, M.K. Road Mumbai - 400020 (Appellant) (Respondent) Assessee by : Shri Madhur Agrawal Department by Shri Prakash Mane Date of Hearing : 02.06.2022 Date of Pronouncement : 30.06.2022 O R D E R PER S. RIFAUR RAHMAN (AM) 1. This appeal is filed by the assessee against the order of the Learned Commissioner of Income Tax (Appeals) –10, Mumbai [hereinafter in short “Ld.CIT(A)”] dated 21.08.2017 for the A.Y. 2007-08. 2. Briefly stated the facts are that, assessee engaged in the business of trading in diamond, acting as advertising/handling agent, conducting 2 ITA NO. 6978/MUM/2017 (A.Y. 2007-08) M/s. Rapaport India Pvt. Ltd., gemological assessment of diamonds, providing marketing informations deduction diamond grading service, filed return of income on 31.10.2007 for the A.Y.2007-08 declaring income of ₹.24,31,520/- and the return was processed u/s. 143(1) of the Act. The Assessing Officer received information from the DGIT(Inv.), Mumbai about the accommodation entries provided by M/s. A2 Jewels and M/s.Surya Diam and assessee was also one of the beneficiary from such dealers. The assessee was required to prove the genuineness of the purchases made from M/s. A2 Jewels and M/s.Surya Diam which was referred to in the Assessment Order. In response assessee submitted that the purchases made are genuine. 3. Not convinced with the submissions of the assessee the Assessing Officer treated the purchases as non-genuine and he was of the opinion that assessee had obtained only accommodation entries without there being any transportation of materials. It is the finding of the Assessing Officer that the purchases made by the assessee and claimed as expenses in its Profit and Loss Account are not genuine, the purchases to that extent remained unverifiable. Therefore, he treated purchases of ₹.8,44,195/- as non-genuine and added to the income of the assessee. 3 ITA NO. 6978/MUM/2017 (A.Y. 2007-08) M/s. Rapaport India Pvt. Ltd., 4. On appeal the Ld.CIT(A) sustained the reopening of assessment and estimated the profit element embedded in the alleged bogus purchases @8% of the alleged bogus purchases. Against this order, assessee is in appeal before us. 5. Assessee has raised following grounds in its appeal: - “Ground No.1 On the facts and circumstances of the case and in law, the learned Commissioner of Income of Tax (Appeals) erred in confirming the action of learned assessing officer of reopening the assessment after expiry of four years from the end of the relevant assessment year, when assessment was already completed under section 143(3) of the Income Tax Act, 1961 and that the appellant had furnished truly and fully all the relevant details during the course of assessment. Ground No. 2 On the facts and circumstances of the case and in law, the learned Commissioner of income Tax (Appeals) erred by assuming the purchases made by the appellant from M/s A2 Jewels and M/s Surya Diam to be bogus and confirming the disallowance made by learned assessing officer of peak of such purchases i.e. Rs. 8,44,195/without appreciating the fact that the payment for the said purchases were authentic and corresponding income arising from the sales was duly offered to tax. On the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) erred by not restricting the disallowance to the extent of gross profit element embedded in the alleged purchases of INR 16,04,246/-.” 6. At the time of hearing, Ld. Counsel for the assessee submitted that Ground No.1 is not pressed, accordingly, the same stand dismissed. 4 ITA NO. 6978/MUM/2017 (A.Y. 2007-08) M/s. Rapaport India Pvt. Ltd., 7. Ld. Counsel for the assessee reiterated the submissions made before the lower authorities. He also placed reliance on the decision of the Hon'ble Bombay High Court in the case of Pr.CIT v. M/s. Mohommad Haji Adam & Co. in Income Tax Appeal No. 1004 of 2016 dated 11.02.2019 and submitted that the Assessing Officer may be directed to estimate the Gross Profit on the non-genuine purchases to similar percentage as shown in the genuine purchases for the purpose of disallowance. 8. Ld. DR vehemently supported the orders of the lower authorities. 9. Considered the rival submissions and material placed on record, we observe that Assessing Officer treated entire purchases made from various concerns which appeared as non-genuine and the Ld.CIT(A) estimated the profit element @8% in the alleged bogus purchases of ₹.8,44,195/. On a perusal of the Assessment Order, we find that the Assessing Officer treated the purchases made by the assessee from M/s.A2 Jewels and M/s. Surya Diam as non-genuine solely based on the information received from DGIT (Inv.), Mumbai that assessee has booked bogus purchases through the concerns which issued only accommodation entries. No independent enquiries have been conducted by the Assessing 5 ITA NO. 6978/MUM/2017 (A.Y. 2007-08) M/s. Rapaport India Pvt. Ltd., Officer before treating such purchases as bogus. The Hon'ble Bombay High Court in the case of Pr.CIT v. M/s. Mohommad Haji Adam & Co. (supra) held that the Tribunal correctly restricted the addition limited to the extent of bringing the Gross Profit rate on purchases at the same rate of other genuine purchases. While holding so, the Hon'ble High Court observed as under: All these appeals arise out of common Judgment of the Income Tax Appellate Tribunal. The facts in all these appeals being same, we make it from ITXA No. 1004 of 2016. The revenue - appellant has raised following questions for our consideration “(a) Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT was justified in not confirming the addition made by the Assessing Officer on account of bogus purchases shown to have been made through hawala transactions from certain parties who were only providing accommodation sale bills? (b) Whether on the facts and in the circumstances of the case and in law, where evidently no purchases were made from these parties who were issuing only bogus accommodation bills and this finding has been accepted by the CIT(A) and the ITAT, the ITAT, without any evidence, was justified in presuming that there must have been purchases and thereupon giving huge relief to the assessee? (c) Whether on the facts and in the circumstances of the case and in law, the order of the Hon'ble ITAT is perverse as no reasonable person acting judicially and properly instructed in the relevant law could arrive at such a finding on the evidence on record?” 2 The issues relate to the Assessment Year ("A.Y." for short) concerning the respondent - assessee who is a trader of fabrics. During the survey operations in case of the entities from whom the assessee had claimed to have made purchases, the department 6 ITA NO. 6978/MUM/2017 (A.Y. 2007-08) M/s. Rapaport India Pvt. Ltd., collected information suggesting that such purchases were not genuine. The Assessing Officer ("A.O." for short) noticed that the assessee had shown purchases of fabrics worth Rs.29.41 Lacs (rounded off) from three group concerns, namely, M/s Manoj Mills, M/s Astha Silk Industries and M/s Shri Ram Sales & Synthetics. On the basis of the statement recorded during such survey operations, the A.O. concluded that the selling parties were engaged only in supplying the bogus bills, that the goods in question were never supplied to the assessee, and therefore, the purchases were bogus. He, therefore, added the entire sum in the hands of the assessee as its additional income. 3 The assessee carried the matter in the appeal before the Commissioner of Appeals who accepted the factum of purchases being bogus. However, he compared the purchases and sales statement of the assessee and observed that the department had accepted the sale, and therefore, there was no reason to reject the purchases, because without purchases there cannot be sales. He, therefore, held that under these circumstances A.O. was not correct in adding the entire amount of purchases as the assessee's income. He, therefore, deleted the addition refreshing it to 10% of the purchase amount. He also directed the A.O. to make addition to the extent of difference between the gross profit rate as per the books of accounts on undisputed purchases and gross profit on sales relating to the purchases made from the said three parties. 4 The assessee carried the matter before the Tribunal. The Revenue also carried the issue before the Tribunal. The Tribunal in the impugned Judgment allowed the appeal of the assessee partly and dismissed that of the Revenue. The Tribunal noted that the CIT(A) had not given any reasons for retaining 10% of the purchases by way of ad hoc additions. The Tribunal, therefore, deleted such additions, but retained the portion of the order of the CIT(A) to that extent he permitted the A.O. to tax the assessee on the basis of difference in the GP rates. 5 Learned counsel Mr Chhotaray for the Revenue strenuously contended that the CIT(A) and the Tribunal committed serious error. In the present case when it was established that the purchases are bogus, the entire amount should have been added to the income of the assessee. There is no question of granting any relief in the facts of the case. In this context he relied on a decision of the Division 7 ITA NO. 6978/MUM/2017 (A.Y. 2007-08) M/s. Rapaport India Pvt. Ltd., Bench of Gujrat High Court in the case of N.K. Industries Ltd. Vs Dy. C.I.T. in Tax Appeal No. 240 of 2003 and connected appeals decided on 20th June, 2016. In such judgment the Court had observed as under – “The Tribunal in the case of Vijay Proteins Ltd. Vs. CIT had observed that it would be just and proper to direct the Assessing Officer to restrict the addition in respect of the undisclosed income relating to the purchases to 25 % of the total purchases. The said decision was confirmed by this Court as well. On consideration of the matter, we find that the facts of the present case are identical to those of M/s Indian Woolen Carpet Factory (supra) or M/s Vijay Proteins Ltd. In the present case the Tribunal has categorically observed that the assessee had shown bogus purchases amounting to Rs.2,92,93,288/- and taxing only 25 % of these bogus claim goes against the principles of Sections 68 and 69C of the Income Tax Act. The entire purchases shown on the basis of fictitious invoices have been debited in the trading account since the transaction has been found to be bogus. The Tribunal having once come to a categorical finding that the amount of Rs.2,92,93,288/- represented alleged purchases from bogus suppliers it was not incumbent on it to restrict the disallowance to only Rs.73,23,322/” 6 Counsel pointed out that the S.L.P. against such decision was dismissed by the Supreme Court. 7 On the other hand, Ms Khan learned counsel for the assessee opposed the appeals contending that the Tribunal has given proper reasons. The assessee was a trader. Even if the purchases are found to be bogus, entire purchase amount cannot be added by way of assessee's income. 8 In the present case, as noted above, the assessee was a trader of fabrics. The A.O. found three entities who were indulging in bogus billing activities. A.O. found that the purchases made by the assessee from these entities were bogus. This being a finding of fact, we have proceeded on such basis. Despite this, the question arises whether the Revenue is correct in contending that the entire purchase amount should be added by way of assessee's additional income or the assessee is correct in contending that such logic cannot be applied. The finding of the CIT(A) and the Tribunal would 8 ITA NO. 6978/MUM/2017 (A.Y. 2007-08) M/s. Rapaport India Pvt. Ltd., suggest that the department had not disputed the assessee's sales. There was no discrepancy between the purchases shown by the assessee and the sales declared. That being the position, the Tribunal was correct in coming to the conclusion that the purchases cannot be rejected without disturbing the sales in case of a trader. The Tribunal, therefore, correctly restricted the additions limited to the extent of bringing the G.P. rate on purchases at the same rate of other genuine purchases. The decision of the Gujarat High Court in the case of N.K. Industries Ltd. (supra) cannot be applied without reference to the facts. In fact in paragraph 8 of the same Judgment the Court held and observed as under- “So far as the question regarding addition of Rs.3,70,78,125/- as gross profit on sales of Rs.37.08 Crores made by the Assessing Officer despite the fact that the said sales had admittedly been recorded in the regular books during Financial Year 1997-98 is concerned, we are of the view that the assessee cannot be punished since sale price is accepted by the revenue. Therefore, even if 6% gross profit is taken into account, the corresponding cost price is required to be deducted and tax cannot be levied on the same price. We have to reduce the selling price accordingly as a result of which profit comes to 5.66 %. Therefore, considering 5.66 % of Rs.3,70,78,125/- which comes to Rs.20,98,621.88 we think it fit to direct the revenue to add Rs.20,98,621.88 as gross profit and make necessary deductions accordingly. Accordingly, the said question is answered partially in favour of the assessee and partially in favour of the revenue.” 9. In these circumstances, no question of law, therefore, arises. All Income Tax Appeals are dismissed, accordingly. No order as to costs.” 10. Following the decision of the Hon'ble Bombay High Court (supra), we direct the Assessing Officer to restrict the addition/disallowance only to the extent of bringing the Gross Profit rate on alleged bogus purchases at the same rate of the other genuine purchases declared by the assessee. 9 ITA NO. 6978/MUM/2017 (A.Y. 2007-08) M/s. Rapaport India Pvt. Ltd., Therefore, we are inclined to remit this issue to the file of the Assessing Officer to determine the Gross Profit rate earned by the assessee in genuine and non-genuine purchases and complete the assessment as per decision of the Hon'ble Bombay High Court. Therefore, Assessing Officer is directed to restrict the disallowance only to the extent of actual Gross Profit declared by the assessee. In the result, grounds raised by the assessee are partly allowed. 11. In the result, appeal of the assessee is partly allowed. Order pronounced in the open court on 30 th June, 2022. Sd/- Sd/- (ABY T. VARKEY) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 30.06.2022 Giridhar, Sr.PS Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER (Asstt. Registrar) ITAT, Mum