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TMI Blog2022 (7) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee was engaged in bogus purchase from six concerns controlled by the entry providers to the extent of Rs.27,93,74,602/-. (ii) On the facts and circumstances of the case and in Law, the Ld. CIT(A) has failed to appreciate the fact that the entire purchase from alleged concerns to the extent of Rs.27,93,74,602/- were bogus and was only to suppress the profit of the beneficiaries which is substantiated by the statement on oath given by the entry provider. (iii). Without prejudice to Grounds No.(i) & (ii) on the facts and circumstances of the assessee and in Law, the Ld. CIT(A), Surat ought to have confirmed the addition at least on the amended facts, to the extent of Rs.22,98,65,125/- which is the bogus purchase from impugned parties, determined by him. (iv) Without prejudice to Grounds No.(i),(ii) & (iii) the Ld. CIT(A) in the facts and circumstances of the case, erred in restricting the addition to 5% of bogus purchase to the extent of Rs.22,98,65,125/- instead of Rs.27,93,602/-. (v) On the facts and circumstances of the case and in law, the appellant craves its right to add, alter, amend, deleted, any of the ground or grounds of appeal." 3. Briefly stated, the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties. The Income Tax Department has conducted search & seizure action in the case of Group concerns of Shri Rajendra Jain and conclusively proved that these parties are engaged in the business of providing accommodation entries only as can be clearly seen from the discussions in the above paragraphs. The parties are issuing bills without delivering any goods and services. (ii) Thus, in the books of account of the assessee, the purchases to the extent made from the above said parties remained unverifiable and hence undersigned arrive at a conclusion that the purchase shown by the assessee in the books of account are initiated and bogus purchase are debited to trading account to suppress the true profits to be disclosed to the Department. (iii) The onus was upon the assessee to establish the genuineness of purchases made by the assessee 4.Thus, from the above analysis of the facts, it is crystal clear that purchases made by the assessee from the above parties and claimed as expenses in its profit and loss account are not genuine. In view of the above discussion and the defects pointed out the books of account of the assessee were rejected u/s 145(3) of the Act. In the backdrop o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wells Co. ITA No.1581/Kol/2016/ dtd.05.05.2017). The AR also furnished copies of order of CIT(A) Valsad in the case of (1) Sahjanand Export CIT(A)/VLS/236/016-17 dtd. 24.08.2017, (2) Rushabh International No. CIT(A)/VLS/102/2016-17 dtd. 14.02.2018, which in the disallowances is restricted to 2% of impugned purchases. However, since I have already taken a view of disallowing 5% of purchases and since it is confirmed by Hon'ble jurisdictional ITAT, Surat Bench as discussed in para above; the above decisions of ITAT Mumbai / Kolkata are not followed. 9. In view of above discussion the disallowance is restricted to 5% of unverified purchases. A.Y Unverified purchases Disallowance confirmed 2014-15 Rs.22,98,65,125/- Rs.1,14,93,256/- 6. Aggrieved by the order of Ld. CIT(A), the Revenue is in appeal before us. 7. Before us, Ld. CIT-DR for the Revenue argued that addition made by the Assessing Officer @ 100% of bogus purchases to the tune of Rs.27,93,74,602/- is to be upheld. 8. On the other hand, Ld. Counsel for the assessee submitted that addition sustained by Ld. CIT(A) @ 5% should also be deleted. The Ld. Counsel for the assessee further submitted that assessee was e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are assessed with Central Circle, Mumbai where they are treated as "entry provider" and assessed accordingly. 10. The ld.CIT(A) after referring the decision of Tribunal in Bholanath Poly Fab Private Limited in ITA No.137/AHD/2009 dated 26.07.2011 wherein the addition was sustained to the extent of 12%. The ld CIT(A) by following the observation of order of Tribunal in Bholanath Poly fab Pvt. Ltd.(supra), the ld.CIT(A) held that the assessee may have made purchases from elsewhere and obtained the bills from impugned supplier to inflate Gross Profit Rate. The ld CIT(A) after considering the overall facts, submissions of the assessee and evidences produced by assessee, concluded that the 100% disallowance of purchase is not justified. The ld.CIT(A) also considered the decision of jurisdictional High Court in Mayank Diamonds Pvt. Ltd. reported in [2014] 11 TMI 812 (Guj) (Tax Appeal No.200 of 2003 dated 07.11.2014). The ld.CIT(A) compared the fact of the present case, with the facts in case of Mayank Diamonds (supra) and noted that assessee in that case was also engaged in the trading of polished diamonds. The AO in said case made disallowance of entire bogus purchase. The ld.CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search on Bhanwarlal Jain Group. The assessee has shown a very meagre gross profit (GP) @ 0.78% and not net profit (NP) at 0.02%. The ld. CIT(A) restricted the addition to the extent of 12.5% which is on the lower side. The ld. CIT-DR for the revenue prayed that disallowance made by the AO may be upheld or in alternative submitted that it may restricted at least @ 25%, keeping in view that the NP declared by the assessee is extremely on lower side. 13. On the validity of reopening, the ld.CIT-DR for the revenue submits that the AO received credible information about the accommodation entry provided by Bhanwarlal Jain Group. The assessee is one of the beneficiaries, who had availed accommodation entries from such hawala trader. At the time of recording reasons, the mere suspicious about the accommodation entry is sufficient as held by Hon'ble jurisdictional High Court in various cases. To support his submissions, the ld.CIT-DR relied upon the decision; * Pushpak Bullion (P) Ltd Vs DCIT [2017] 85 taxmann.com 84 (Gujarat High Court), * Peass Industrial Engineers (P) Ltd Vs DCIT [2016] 73 taxmann.com 185 (Gujarat High Court), * ITO Vs PurushttomDassBangur [1997} 90 Taxman 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n purchases invoices, accounts of the parties, bank statement of assessee showing transaction to the banking channel. The AO has not made any comment on the documentary evidence furnished by assessee. The AO solely relied upon the statement of third party and the report of Investigation Wing. The report of wing and the statement of Bhanwarlal Jain were not provided to the assessee. The AO has not disputed the sales of assessee. No sale is possible in absence of purchase. The books of accounts were not rejected. The AO made the disallowance of entire purchases. The assessing officer not provided cross examination of the alleged hawala dealers. The disallowances sustained by the Ld. CIT(A) @ 12.5% of the impugned purchases, is on higher side and deserve to be deleted in total. The ld.AR of the assessee submits that entire purchases shown by assessee are genuine. In without prejudice and alternative submissions, the Ld. AR for the assessee submits that in alternative submission, the disallowance may be sustained on reasonable basis. To support his various submission, the ld.AR for the assessee is relied upon case laws: 16. In the rejoinder submissions the ld. CIT-DR for the revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in providing accommodation entries, held that where after scrutiny assessment the assessing officer received information from the investigation wing that well known entry operators of the country provided bogus entries to various beneficiaries, and assessee was one of such beneficiary, assessing officer was justified in re-opening assessment. Further similar view was taken by Hon'ble Jurisdictional High Court in Pushpak Bullion (P) Ltd Vs DCIT (supra). Therefore, respectfully following the order of Hon'ble High Court, we find that the assessing officer validly assumed the jurisdiction for making re-opening under section 147 on the basis of information of investigation wing Mumbai. So far as other submissions of the ld AR for the assessee that there is no live link of the reasons recorded, we find that the Hon'ble Jurisdictional High Court in Peass Industrial Engineers (P) Ltd clearly held that when assessing officer received information from the investigation wing that two well known entry operators of the country provided bogus entries to various beneficiaries, and assessee was one of such beneficiary, assessing officer was justified. Hence, the ground No. 1 in assessee's appeal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fit Rate only at 0.78% of turnover, accordingly, the ld. CIT(A) was of the view that disallowance of 12.5% of impugned purchases/bogus purchases would be reasonable to meet the end of justice. 21. We have seen that during the financial year under consideration the assessee has shown total turnover of Rs. 66,09,62,458/-. The assessee has shown Gross Profit @ .78% and net Profit @ .02% (page 11 of paper Book). The assessee while filing the return of income has declared taxable income of Rs. 1,81,840/- only. We are conscious of the facts that dispute before us is only with regard of the disputed purchases of Rs, 4.34 Crore, which was shown to have purchased from the entity managed by Bhanwarlal Jain Group. During the search action on Bhanwarlal Jain no stock of goods/ material was found to the investigation party. Bhanwarlal Jain while filing return of income has offered commission income (entry provider). Before us, the ld CIT-DR for the revenue vehemently submitted that the ratio of decision of Hon'ble Gujarat High Court in Mayank Diamond Private Limited (supra) is directly applicable on the facts of the present case. We find that in Mayank Diamonds the Hon'ble High Court restrict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in disallowing Rs.1,14,93,256 being 5% of difference of purchase and sale from disputed parties (Rs.22,98,65,125/-) by treating the purchases as suspicious. 4. Without prejudice to the Ground No.3, the Ld. CIT(A) erred in not accepting the alternate claim of the assessee that partners of the assessee-firm is part of Rajendra Jain, commission income on sale ought to have assessed in the impugned order." 13. At the outset, Ld. Counsel for the assessee inform the Bench that assessee does not wish to press Ground No.1 & 2, therefore, we dismiss Ground No.1 and 2, as not pressed. 14. For ground No.3 and 4, Ld. Counsel for the assessee submitted in brief that partners of the assessee-firm, are part of Shri Rajendra Jain Group, therefore commission income on sales ought to have been assessed in the impugned bogus purchases. We do not agree with the argument made by ld Counsel, as we have noted that after all it is a case of bogus purchases. We note that Co-ordinate Bench of this Tribunal has been taking a constant stand that in the case of Shri Rajendra Jain Group cases, Bhanwarlal Jain group cases, and Gautom Jain group cases, the addition @ 6% on bogus purchases should be affirme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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