Income Tax Appellate Tribunal - Mumbai
Dsd Builders & Developers P.Ltd, Mumbai vs Dcit 8(10(3), Mumbai on 25 September, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL "J", BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI SANDEEP GOSAIN, JM ITA No.2735/Mum/2015 & 2736/Mum/2015 (Assessment Year :2010-11 & 2011-12) M/S. DSD Builders Vs. DCIT - 8(1)(3)-Mumbai Developers Pvt.Ltd., 103, Neel Ashish Sdanand Road, Vile Parle (W) Mumbai - 400057 PAN/GIR No. AACCD2842A Appellant) .. Respondent) Assessee by Shri Sandip Kejriwal Revenue by Shri Saurabh Rai Date of Hearing 01/09/2017 Date of Pronouncement 25/09/2017 आदे श / O R D E R PER R.C.SHARMA (A.M):
These are the appeals filed by the assessee against the order of CIT(A)-16, Mumbai dated 05/01/2015 for the A.Y.2010-11 & 2011-12 in the matter of order passed u/s.143(3) of the IT Act.
2. The following grounds have been taken by the assessee in the A.Y.2010-11:-
1. On the facts and circumstances of the case and in law, the Hon'ble CIT(A) erred in upholding the disallowance made by the Learned Assessing Officer of Rs. 20,00,000/- from the current year's purchases considering same as non-genuine and unexplained expenditure without considering the fact that the said purchases were used in construction and complete details of purchase and consumption were provided during the course of the Assessment and Appellate proceedings.2
ITA No.2735 & 2736/Mum/2015 M/s. DSD Builders & Developers Pvt. Ltd.,
2. The Appellant craves leave, to add, amend, alter, modify and 1 or withdraw any of the above grounds of appeal as the situation may warrant, on or before the date of hearing of appeal.
3. Rival contentions have been heard and record perused. Facts in brief are that the assessee company is engaged in the business of builders and developers. Since the financial year 2006-07 relevant to A.Y.2007-08, the assessee is working on a project viz. "Tapovan" at Santacruz (West). The assessee follows the „percentage completion‟ method of accounting and has, thus, charged its related expenses to the work-in-progress during the year.
4. During the course of scrutiny assessment for A.Y.2010-11, on the perusal of the Profit & Loss Account for the year, AO found that the assessee company has shown closing work-in-progress at Rs.27,11,49,037.50, which has been transferred to the Balance Sheet under the head inventory under current assets. The AR of the assessee was asked to furnish the breakup of work-in-progress for the year under consideration as well as for the years since the project has commenced. In response, the assessee has furnished the year-wise breakup of work-in progress for A.Ys 2007-08, 2008-09, 2009-10 and 2010-11 wherefrom it is seen that the assessee company has shown the following work-in-progress as at the end of the respective years:-
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ITA No.2735 & 2736/Mum/2015 M/s. DSD Builders & Developers Pvt. Ltd., F.Y. ended Opening Cost charged WIP (Rs.) year Closing VIP (Rs.) during the (Rs.) 31.03.2007 287149 3449276 34779425 31.03.2008 34779425 61329586 96109011 31.03.2009 96109011 108977463 205086474 31.03.2010 205086474 66062564 271149038
5. From the data with regard to work-in-progress submitted by the assessee, it was observed by AO that the assessee company has shown the Purchase Cost as under:-
F.Y. ended Purchase
Cost (Rs.)
31.03.2007 78997
31.03.2008 19800851
31.03.2009 28378533
31.03.2010 28226547
6. Vide order sheet noting dated 21.12.2012, the AR of the assessee was asked to furnish the purchase orders, delivery challans, Goods Receipt Notes and purchase invoices. The assessee was also asked to furnish the party-wise and yearwise details of purchases made by it since the year of commencement of the project. In response, vide its AR's letter dated 04.01.2013, the assessee furnished copies of purchase invoices. By the said letter, the AR of the assessee has stated that in some cases goods were delivered with Delivery Challan, while in some cases the supplier issued Invoice-cum-Challan.
7. After having perused the details of purchases furnished by the assessee company and after having examined the original invoices produced by the assessee on test-check basis, it was observed that the assessee company has purchased steel from one Karma Ispat Limited. From the copies of bills and challans produced, it was observed that no 4 ITA No.2735 & 2736/Mum/2015 M/s. DSD Builders & Developers Pvt. Ltd., mention of lorry / truck number is there. Therefore, vide order sheet noting dated 07.03.2013, the AR of the assessee was asked to furnish the Lorry Receipts), Delivery Challans, Purchase Order(s), Inward Register in respect of the purchases made .from Karma Ispat Limited during all the years of project. In response, vide its AR's letter dated 08.03.2013, the assessee has contended as under:-
"The assessee had placed verbal purchase orders to all including M/s.Karma Ispat Ltd. with regards to Karma Ispat Ltd we had submitted Delivery Challan, and the goods were delivered by them to the site of the Assessee."
8. From the details of purchases and invoices of Karma Ispat Limited, it was noted, that the assessee company claims to have purchased steel from the said party during the year under consideration and during the preceding year i.e. F.Y. 2008-09 relevant to A.Y. 2009-10. It i s seen that during the year under consideration, the assessee has made the purchase of Rs.20,00,000/- from the said party and during the financial year 2008-09, it has made purchases to the tune of Rs. 96,88,752/-. Vide order sheet noting, dated 13.03.2013, the AR of the assessee was asked to justify its claim of purchases purported to have been made from Karma Ispat Limited. The assessee was also asked to show cause as to why the purchases claimed to have been made from Karma Ispat Limited totaling Rs.1,16,88,752/- not be treated as bogus purchases and accordingly the opening and closing work-in-progress be re-worked out after reducing the respective amounts of purchases claimed during the financial years 2008- 09 & 2009-10 in respect of the said party. In response, the AR explained 5 ITA No.2735 & 2736/Mum/2015 M/s. DSD Builders & Developers Pvt. Ltd., that the assessee relies upon its earlier submissions and the supporting documents furnished by it in the course of scrutiny proceedings on earlier dates with regard to its claim of purchases made from Karma Ispat Limited during the financial years 2008-09 as well as 2009-10.
9. AO concluded that the assessee's claim of purchases totaling Rs. 1,16,88,752/- [96,88,752 + 20,00,000] purported to have been made from Karma Ispat Limited is hereby rejected and accordingly the same is hereby considered as bogus and unexplained expenditure and the same is hereby held to be not liable for any sort of deduction. Accordingly the work-in-progress of the assessee company for F.Y. 2009-10 is re-worked out hereunder;
Opening WIP 205086474 Less: Bogus purchases from Karma Ispat Limited during F.Y. 2008-09 9688752 Revised opening WIP 195397722 Add; Project cost (including purchases) incurred during the year 660625564 Less: Bogus purchases from Karma Ispat Limited during F.Y. 2009-10 2000000 64062564 Revised closing WIP as on 31.03:2010' 259460286
10. Having arrived at the revised work-in-progress in respect of the assessee's project viz. "Tapovan" at Santacruz (West) at Rs.25,94,60,286/-, the same shall be carried forward to subsequent year and the. income in the year of completion of the said project shall be calculated based on this revised work-in-progress.
11. By the impugned order, CIT(A) deleted the addition of Rs.96,88,752/- and confirmed the addition of Rs.20,00,000/- after having the following observation:-
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ITA No.2735 & 2736/Mum/2015 M/s. DSD Builders & Developers Pvt. Ltd., "After careful perusal of the assessment order and written submissions of the A/R of the appellant, it transpires that the appellant made purchases amounting to Rs.96,88,752/-from M/s Karma Ispat Ltd. during F.Y.2008-09-relevant-to A.Y.2009-10 and Rs.20 Lacs during F.Y.2009-10 relevant to A.Y.2010-11. The AO has recomputed the opening & closing WIP for A.Y.2010-11 by deducting the amount of purchases which has been challenged by the appellant in appeal.
According to the AO, since the appellant has failed to produce the genuineness of the purchases from Karma Ispat Limited for F.Y.2008-09 relevant to A.Y.2009-10,. the same was deducted from opening WIP as on 01.04.2009.
The A/R of the appellant has stated during the course of assessment proceedings that the goods were delivered at site by the seller which is apparent as per delivery challan. Hence the same should have been allowed as genuine purchases for which he has placed reliance on the order of the Mumbai Bench in the case of GV Sons in ITA No.2240/Mum/2012. Alternatively, it has been pleaded that the re- computation of WIP is wrong because the closing WIP as on 31.03.2009 is the opening WIP as on 01.04.2009 and it cannot be re-
computed as the same had already been accounted for in the books of account for the year ending 31st March, 2009 relevant to A.Y.2009-10 for which reliance has been placed on the judgements of CIT vs. Usha Stud Agricultural Farms Ltd. (2009) 183 Taxman 277 (Delhi). .
The alternative plea of the A/R of the appellant is relevant to the fact of the case. The relevant findings have been recorded by thelr- lordships of Rajasthan High Court in the case of CIT vs. Parmeshwar Bohra.
Respectfully following the case law discussed supra the AO is directed to again compute the opening WIP without making any deduction from opening WIP as the same is closing WIP as on 31.03.2009 and it cannot_(be,. tinkered with unless the addition/disallowance was made in the relevant assessment year for which there is no evidence on record meaning thereby that no addition/disallowance on account of bogus purchases have been made in A.Y.2009-10.
Hence the ground of appeal no.l is .allowed.
After careful perusal of the assessment order and written submissions filed by the A/R of the appellant it has been observed that me AR' of the assessee has failed to produce the GRN/Lorry receipt etc. to prove the actual purchases of goods. The case of the assessee is covered by the judgement of the Hon'ble Punjab & Haryana High Court in the case of J.R. Solvent Industries (P.) Ltd. (2012) 22 taxmann.com.115 in which it has been held that where the appellant failed to produce the selling dealer alongwith his books of account, the assessee cannot 7 ITA No.2735 & 2736/Mum/2015 M/s. DSD Builders & Developers Pvt. Ltd., claim the purchase of goods. The assertion of the A/R of the appellant that we have been given to understand that the seller had paid appropriate VAT on the goods sold is only a presumption for which no evidence has been produced by the appellant. The AR of the appellant has gone to the extent of making his statement that the seller is a registered company and the address is available in the public domain and has failed to discharge the onus by bringing on record the correct address of the seller. In the present case it was obligatory for the assessee to produce the seller alongwith the necessary documents to establish the genuineness of the purchasers. Moreover, the payment by cheque is not sufficient to establish the genuineness of the purchasers as held by the Hon'ble Supreme Court in the case of Kachhwala Gems 288ITR 70. In such circumstances, there is no alternative but to uphold the action of the AO of treating the purchases amounting to Rs.20 Lac as in genuine and unexplained expenses and to reduce the same from the closing WIP. Hence ground of appeal no.2 is dismissed.
13. However, with regard to deletion of addition of Rs.96,88,752/-, revenue is not in further appeal before us and only assessee is in appeal for the addition of Rs.20,00,000/- confirmed by the CIT(A). The Bench categorically enquired from the department whether they have filed the appeal against the deletion of sum of Rs.96,88,752/-. Vide letter dated 28/07/2017, it was informed by learned DR to the Bench that revenue has not filed any appeal against deletion of addition of Rs.96,88,752/-. Accordingly, here we are concerned only with the addition of Rs.20,00,000/- confirmed by the CIT(A).
14. We have considered rival contentions and found that addition of Rs.20,00,000 in respect of purchases from Karma Ispat Limited has been confirmed by the CIT(A) on the ground that assessee was failed to produce GRN / Lorry receipt to prove the actual purchaser of the goods, thereafter relying on the decision of the Hon‟ble Supreme Court in the 8 ITA No.2735 & 2736/Mum/2015 M/s. DSD Builders & Developers Pvt. Ltd., case of Kachwala Gems and Punjab and Haryana High court in case of J.R.Solvent Industries Pvt. Ltd., the CIT(A) has upheld the addition.
15. However, in respect of similar purchases from Karma Ispat Limited during the A.Y.2009-10 which was disallowed by the AO in the A.Y.2010-11, but deleted by CIT(A), however, revenue is not in appeal for such deletion of Rs.96,88,752/-, therefore, we are not going into merit of the deletion of addition by the CIT(A). Here we are confined to purchase of Rs.20,00,000 which was found to be bogus both by AO and CIT(A), accordingly, CIT(A) directed for reduction in the value of work in progress which resulted into increase in assessee‟s profit for the year under consideration. It was contended by learned AR that the assessee had purchased goods from Karma Ispat Limited and filed the copies of invoices received from Seller along with Goods Delivery Notes. As per learned AR the assessee has placed oral order for the purchase of the goods from the Seller and the same were delivered at the site by the seller as mentioned in the Delivery Challans. Since the transport related cost was borne by the seller, the assessee does not have GR or Lorry receipt. It was further submitted that the details of purchase, invoice, challans, quantity details, payment evidence, etc were filed during the course of assessment proceedings. It was also submitted that assessee had filed a stock/inventory/consumption summary mentioning the details of purchases made (including the purchases made from the seller) from the beginning of the project till 31 9 ITA No.2735 & 2736/Mum/2015 M/s. DSD Builders & Developers Pvt. Ltd., March 2010. The learned AO had not disregarded the said quantity details of purchases and made the additions.
16. Considering the totality of facts and circumstances of the case, we restore this addition back to the file of the AO for deciding afresh after giving due opportunity to the assessee. We direct accordingly. As the addition has been made in the A.Y.2010-11 and corresponding closing stock for the A.Y.2010-11 which is opening stock for A.Y.2011-12 has already been given effect, the addition so made in the A.Y.2011-12, appears to consequential in nature. AO is directed to verify the same and pass order afresh as per law. We direct accordingly.
17. In the result, appeal filed by the assessee for both the years are allowed in part for statistical purposes.
Order pronounced in the open court on this 25/09/2017
Sd/- Sd/-
(SANDEEP GOSAIN) (R.C.SHARMA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai; Dated 25/09/2017
Karuna Sr.PS
Copy of the Order forwarded to :
1. The Appellant
2. The Respondent.
3. The CIT(A), Mumbai.
4. CIT
DR, ITAT, Mumbai
5. BY ORDER,
6. Guard file.
सत्यापित प्रतत //True Copy//
(Asstt. Registrar)
ITAT, Mumbai