9911796707
TMI Blog2019 (12) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... AY 2009-10 and 2010-11, then ends of justice would meet. This 6% we have worked out on the basis of our past experience in dealing with such cases, wherein Hon ble Gujarat High Court has also upheld estimation of profit ranging between 5% to 20% depending on the nature of business and considering undue profit earned by an assessee. - ITA.No.91, 92 and 93/Ahd/2017 - - - Dated:- 9-12-2019 - SHRI RAJPAL YADAV, HON BLE JUDICIAL MEMBER AND SHRI WASEEM AHMED HON BLE ACCOUNTANT MEMBER For the Appellant : Shri Deepak R. Shah, AR For the Respondent : Shri L.P. Jain, Sr.DR ORDER PER RAJPAL YADAV, JUDICIAL MEMBER Present three appeals are directed at the instance of the assessee against separate orders of the ld.CIT(A)-10, Ahmedabad dated 11.11.2016 for the assessment years 2008-09, 2009-10 and 2010-11. Issue agitated in all these appeals are common, therefore, we heard them together and deem it appropriate to dispose of all these appeals by this common order. 2. In the first ground of appeal, the assessee has challenged reopening of the assessment by issuance of notice under section 148 of the Income Tax Act, 1961. The reasons recorded by the AO are verbati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bai are looked into, then it would reveal that transaction of ₹ 43,04,579/- has been stated to be taken place in this assessment year, for which the assessee has obtained tax bills from hawala dealers. He took us through page no.3 of the paper book, and pointed out that in the information given by VAT department, they are pertaining to F.Y.2008-09, meaning thereby, these are for A.Y.2009-10, and not for the Asstt.Year 2008-09, therefore, according to him, the assessment cannot be reopened. Similarly, with regard to the Asstt.Year 2009-10, he contended that since there is mismatch between information given by the VAT vis- -vis formation of believe in the Asstt.Year 2009-10, the total transaction ought to be ₹ 43,04,579/- whereas the AO has harboured a belief that income has escaped to the extent of ₹ 59,09,015/-. Thus, according to him, there is no nexus between the information available with the AO vis-avis formation of belief showing escapement of income for taxation. 6. The ld.DR, on the other hand, produced original assessment record, and contended that there are lots of information compiled from dealer firm exhibiting the fact that benefit of bills from Haw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A) had put the onus upon the assessee to rebut hawala entry of ₹ 43,04,579/- which was not taken by him in the accounting year relevant to the asstt.Year 2008-09. The details submitted by the Sales-tax Department are placed on page no.3 of the paper book, which shows that these details are for the Asstt.Year 2009-10 and not Asstt.Year 2008-09. It is for the Revenue to first prove the charge against the assessee, only thereafter the assessee will be required to explain his position about that matter. There is no negative onus upon the assessee to demonstrate that he has not taken hawala entries of ₹ 43,23,460/- in the Asstt.year 2008-09. In other words, it is for the AO first to demonstrate with help of some reliable evidence that entries of ₹ 43,04,579/- were taken by the assessee. There is no such evidence possessed by the Revenue. The details possessed by the Revenue pertains to the Asstt.Year 2008-09, and this is only an information collected by the Sales-tax Department during the search conducted on these hawala operators. There should be some corroborative evidence apart from these details alone. Therefore to our mind, this cannot be treated as bogus purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008- 09, they have been quantified at ₹ 43,04,579/-, therefore, this should be the amount which ought to have been considered in the Asstt.Year 2009-10. We are of the view that this is the only page of the alleged report. Since the period stated in this report for the F.Y2008-09, therefore, in the Asstt.Year 2008-09, we treat this as pertaining to Asstt.Year 2009-10. But apart from these details, there are other details, which have been quantified on page no.3 of the paper book for the Asstt.Year 2010-11. The assessee has not produced a single document either before the AO or before the CIT(A). It has not submitted details in support of his purchases. Therefore, it is to be accepted that the Department was able to lay its hand on the material supplied by the Sales-tax department that bogus purchases to the extent of ₹ 59,09,050/- were made by the assessee for the Asstt.Year 2009-10. Similar identical facts are available for the Asstt.Year 2010-11 wherein an addition of ₹ 26,15,013/- has been made in that year. 11. The ld.counsel for the assessee submitted that the assessee has made his sales to Vishal Mart, and all these sales are identifiable. These have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t able to prove the purchases from B , therefore, the purchases have been treated as bogus. In fact, the material was received by the assessee. If that thing has not been happened, then sales would not have been achieved. Therefore, in these circumstances, only extra element of profit involved in this modus operandi of purchases of goods from party A and obtaining bills from B is to be worked for treating the income of the assessee. The assessee has already shown gross profit at 7.25% and 7.14%. If extra profit at the rate of 6% is being estimated qua the alleged purchases of ₹ 59,09,015/- and ₹ 26,15,013/- in the Asstt.Year 2009-10 and 2010-11, then ends of justice would meet. This 6% we have worked out on the basis of our past experience in dealing with such cases, wherein Hon ble Gujarat High Court has also upheld estimation of profit ranging between 5% to 20% depending on the nature of business and considering undue profit earned by an assessee. In view of the above discussion, all the appeals of the assessee are partly allowed. 14. In the result, appeals of the assessee are partly allowed. Order pronounced in the Court on 9th December, 2019 at Ahmedabad ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
