Income Tax Appellate Tribunal - Mumbai
Aas Mohammed Khan (Prop.Perfect Steel ... vs Assistant Commissioner Of Income Tax ... on 23 November, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL,
MUMBAI BENCH "SMC", MUMBAI
BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER
ITA Nos.5033 & 5034/M/2017
Assessment Years: 2010-11 & 2011-12
Shri Aas Mohammed Khan Income Tax Officer-26(1)(1),
(Prop. Perfect Steel C-11, Room No.703, 7th Floor,
Corporation), Pratyakshakar Bhavan,
Gala No.503, Gulab Shah BKC, Bandra (E),
Estate, Vs. Mumbai - 400 051
2nd Gali, Near KUrla Bus
Depot,
L.B.S. Marg, Kurla (West)
Mumbai-400 070
PAN: AAAPM7494C
(Appellant) (Respondent)
Present for:
Assessee by : Shri Aas Mohemmed Khan, A.R.
Revenue by : Shri N. Hemalatha, D.R.
Date of Hearing : 06.11.2017
Date of Pronouncement : 23.11.2017
ORDER
Per D.T. Garasia, Judicial Member:
The above titled appeals have been preferred by the assessee against the common order dated 24.04.2017 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment years 2010-11 & 2011-12.
ITA No.5033/M/2017 for A.Y. 2010-112. The brief facts of the case are that the assessee is an individual engaged in business of reselling of ferrous and non ferrous metal. During the year the Assessing Officer (hereinafter referred to as the 2 ITA Nos.5033 & 5034/M/2017 Shri Aas Mohammed Khan AO) found that assessee had made bogus purchases from following parties:
Sr. Name of the party Amount of
No. Purchase (Rs)
1. Padmalaxmi Steel & Alloys Pvt. Ltd. 5,79,097/-
2. Macos Iron & Steel Pvt. Ltd. 9,78,271/-
3. Ceeport Iron & Steel 16,62,170/-
Total 32,19,538/-
3. The assessee was asked to produce the above parties for verification. There was no compliance of notice under section 133(6). Therefore, the AO has made the addition on account of bogus purchases of Rs.32,19,538/-/-.
4. Matter carried to the Ld. CIT(A) and the Ld. CIT(A) has partly allowed the claim of the assessee by observing as under:
"4.1.16 The AO has only added the profit element embedded in the aforesaid bogus purchases @ 12.5% which seems to be justified in view of the nature of the business of the appellant. In view of the facts and circumstances of the case and discussion herein above, the contentions and submissions of the assessee are not found to be acceptable and are therefore rejected. However, since the AO has wrongly considered the alleged purchases at Rs.32,98,538/-, instead of actual alleged purchases at Rs.32,19,538/-, the addition made by the AO at Rs.4,12,317/- is restricted to Rs 4,02,442.
4.1.17 Therefore, the first ground of appeal raised by the appellant is partly allowed."
5. I have heard the rival contentions of both the parties. Ld. D.R. relied upon the decision of the Tribunal, Ahmedabad Bench in the cases of Shwetambar Steels vs. ITO Ahmedabad and Ganesh Rice Mills vs. CIT (294 ITR 316). The facts in the present case show that assessee could not produce the parties from whom goods are stated to have been purchased. The suppliers were found to be engaged in 3 ITA Nos.5033 & 5034/M/2017 Shri Aas Mohammed Khan providing bogus bill without actual dealing of goods. In this regard, the assessee has stated that they had submitted quantitative details of stock with respect of the sales with purchases from the parties during the assessment proceedings. The assessee has submitted the detail of corresponding sales in respect of the purchase from the said parties. As mentioned above the AO has never disputed or examined the aspect of sales receipts. Since the sales made by the assessee was not doubted or disputed by the AO and he has accepted the sales receipts of the assessee as it is, therefore, the AO cannot deny that purchases were not made by the assessee and the material was not used for its sales. What is under dispute is the purchases from the parties from whom bills have been taken and cheques have been issued to them. Purchases are not in dispute but the parties from whom purchase are shown to have been made are disputed and suspicious. The AO had made the addition as some of the suppliers were declared hawala dealers by the VAT Department. This may be a good reason for making further investigation but the AO did not make any further investigation and merely completed the assessment on suspicion. Once the assessee has brought on record the details of payments by account payee cheque, it was incumbent on the AO to have verified the payment details from the bank of the assessee and also from the bank of the suppliers to verify whether there was any immediate cash withdrawal from their account. No such exercise has been done or findings recorded. There was no detailed investigation made by the AO himself. It is also found that the payments have been made by account payee cheque which are duly reflected in the bank statement 4 ITA Nos.5033 & 5034/M/2017 Shri Aas Mohammed Khan of the assessee. There is no evidence to show that the assessee has received cash back from the suppliers. Merely because the suppliers did not appear before the AO or some confirmation letters were not furnished, one cannot conclude that the purchases were not made by the assessee. This view is supported by the decision of Nikunj Eximp Enterprises vs. CIT 216 Taxman 171 (Bom). To this extent, I am of the view that if the assessee has fulfilled its onus of making the payment by cheque and has supplied the addresses of the sellers then it cannot be presumed that supplier were bogus simply because the sellers were not found at the given address. There is a considerable time gap between the period of purchase transaction and period of scrutiny proceedings. The AO has not brought any material on record to show that there is suppression of sales. It is basic rule of accountancy as well as of taxation laws that profit from business cannot be ascertained without deducting cost of purchase from sales. Estimation of profit ranging from 12.5% to 15% has been upheld by the Hon'ble Gujarat High Court in the case of CIT vs Simit P Sheth 356 ITR 451 (Guj.). The Bombay benches of the Tribunal has taken a consistent view that if the assessee is doing iron and steel business then assessee might have saved the VAT i.e. up to 4 to 6 %. Therefore to link up the defect, I direct the AO to take the GP @ 8% of the total bogus purchases which comes to Rs.2,57,563/-.
6. In the result, assessee's appeal is partly allowed.
5 ITA Nos.5033 & 5034/M/2017Shri Aas Mohammed Khan ITA No.5034/M/2017 for A.Y. 2011-12
7. In this appeal, during the year, the AO found that assessee had made purchases from following parties:
Sr. Name of the party Amount of
No. Purchase (Rs)
1. Macos Iron & Steel Pvt. Ltd. 33,47,269/-
2. Ceeport Iron & Steel Pvt. Ltd. 32,75,042/-
Total 66,22,311/-
8. I find that the assessee has taken the identical grounds in ITA No.5033/M/2017 for A.Y. 2010-11 and the same have already been decided as above. Hence, respectfully following the same ratio, I direct the AO to take the GP @ 8% of the total bogus purchases which comes to Rs.5,29,785/-.
9. In the result, both the appeals of assessee are partly allowed.
Order pronounced in the open court on 23.11.2017.
Sd/-
(D.T. Garasia) JUDICIAL MEMBER Mumbai, Dated: 23.11.2017.
* Kishore, Sr. P.S. Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The CIT (A) Concerned, Mumbai The DR Concerned Bench //True Copy// [ By Order Dy/Asstt. Registrar, ITAT, Mumbai.