Gujarat High Court

The Principal Commissioner Of Income ... vs Mukesh Mahavirprasad Sen on 28 November, 2023

Author: Bhargav D. Karia

Bench: Bhargav D. Karia

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     C/TAXAP/761/2023                                 ORDER DATED: 28/11/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/TAX APPEAL NO. 761 of 2023

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            THE PRINCIPAL COMMISSIONER OF INCOME TAX 1
                              Versus
                    MUKESH MAHAVIRPRASAD SEN
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Appearance:
MRS KALPANA K RAVAL(1046) for the Appellant(s) No. 1
MS VAIBHAVI K PARIKH(3238) for the Opponent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
       and
       HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                               Date : 28/11/2023

                                ORAL ORDER

(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)

1. Heard learned advocate Mr.Karan Sanghani

for learned advocate Mrs.Kalpana K. Raval for

the appellant.

2. This Tax Appeal is filed under Section

260A of the Income Tax Act, 1961 (for short

'the Act') raising following substantial

questions of law arising out of the judgment

and order dated 13th January, 2023 passed by

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the Income Tax Appellate Tribunal, Surat (for

short 'the Tribunal') in ITA No.15/SRT/2020

for the Assessment Year 2008-2009:-

"(i) "Whether on the facts and in the circumstances of the case and in law, the Ld. Tribunal was justified in estimating the addition in respect of bogus purchases @6% of such purchases as against disallowance made by the Assessing Officer @100% of such purchases amounting to Rs.20,48,83,051/- ignoring that these purchases are sham transactions fabricated through bogus paper concerns of Gautam Jain Group entities which were engaged in providing accommodation entries?"

(ii) "Whether on the facts and in the circumstances of the case and in law, the Ld. Tribunal was justified in estimating the addition in respect of bogus purchases @ 6% of such purchases by relying on the decision of Hon'ble Gujarat High Court in the case of Mayank Diamonds Pvt. Ltd. [2014(11) TMI 812] as against the direction of the

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Hon'ble High Court in that case to make addition at the rate of 5% of the total turnover? "

3.1. The respondent-assessee is engaged in

the business of trading activities of

diamonds. Return of income for Assessment Year

2008-09 was filed by the assessee declaring

total income at Rs.1,34,260/-. Assessment

under Section 143(3) of the Act was completed

on 22nd March, 2016 determining the total

assessed income at Rs.20,50,17,310/- by making

addition of Rs.20,48,83,051/-.

3.2. On the basis of the information

received from DGIT (Inv.), Mumbai that during

search proceedings in case of Gautam Jain

Group it was found that the said group was

engaged in the business of issuing non-genuine

purchase bills, unsecured loans and

accommodation entries to various parties and

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the assessee was found to have obtained non-

genuine purchase bills from the said group

amounting to Rs.20,48,83,051/-.

3.3. The case of the assessee was therefore

reopened and the assessment proceedings under

Section 143(3) of the Act was completed on

22nd March, 2016 determining the total

assessed income at Rs.20,50,17,310/- by making

addition of the aforesaid amount on account of

unexplained purchases being accomodation

entries.

3.4. Being aggrieved, the assessee

preferred an appeal before the CIT (Appeals),

Surat who vide order dated 25th November, 2019

partly allowed the appeal of the assessee and

the addition in the case was restricted to

Rs.10,47,931/-.

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3.5. Feeling aggrieved, the appellant-

Revenue preferred an appeal before the

Tribunal. The Tribunal by the impugned order

dated 13th January, 2023 partly allowed the

appeal of the Revenue and restricted the dis-

allowance at the rate of 6% of the amount of

the unexplained purchases.

4.1. At the outset, learned advocate Mr.

Karan Sanghani for the appellant-Revenue

submitted that the Tribunal has relied upon

the judgment of the Co-ordinate Bench of this

Court (Coram: Hon'ble Mr.Justice N.V.Anjaria

and Hon'ble Mr.Justice Niral R. Mehta) in case

of Principal Commissioner of Income Tax

Versus Pankaj K. Choudhary rendered in Tax

Appeal No.617 of 2022 for partly allowing the

appeal of the Revenue wherein it was held that

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in respect of bogus purchases, the addition at

the rate of 6% of bogus purchases is fair and

reasonable.

4.2. Learned advocate Mr.Karan Sanghani

submitted that this Court has dismissed the

Tax Appeal No.617 of 2022 in case of Pankaj

K. Choudhary (Supra) wherein similar questions

of law raised by the Revenue.

5. Considering the above submissions, the

relevant extract from the order of the

Tribunal is reproduced herein below:

"22.Since, the issue is squarely covered by the judgement of the Co- ordinate Bench in the case of Pankaj K. Chaudhary (supra). There is no change in facts and law and Ld.DR for the Revenue did not bring any cogent evidence to distinguish the judgement of Co-ordinate Bench, therefore,

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respectfully following the binding judgement of Pankaj K. Chaudhary (supra), we direct the Assessing Officer to make the addition at the rate of 6% of bogus purchase/unverifiable purchases. Hence, we allow the appeal of Revenue partly."

6. This Court in case of Pankaj K. Choudhary

(Supra) while dismissing the Tax Appeal No.617

of 2022 has held as under:

"5. The Assessing Officer noticed the contentions of the assessee that confirmation, purchase bills, bank statement, stock register, copy of ITR were already filed. The Assessing Officer was, however, of the view that transactions were bogus and merely that it routed through the banking channel, was not sufficient to conclude that they were the genuine transactions. The contention of the assessee that he had not dealt with the Bhanvarlal Jain group was also negatived. The appellate Commissioner took the view that disallowance was required to be sustained at 12.5% of the purchase. The

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Assessing Officer was directed accordingly to workout disallowance. In para 10.6, the Commissioner of Income Tax (Appeals), recorded thus,

"As held above, it is clear that the appellants have made purchases from elsewhere, but have obtained bills from the impugned suppliers. From the Trading & P & L account and Audit report it can be seen that the GP rate shown by appellant is 1.85% oil sales. In such circumstances the disallowance of 100% of purchases cannot be justified. Also as held above, the appellant would nave indulged in above practice in order to get some benefit. And it is this benefit derived by the appellant that need to be taxed. What would be the magnitude of benefit derived by the appellant is the mute question. In the appellant's case, it is seen that GP rate shown is 0.78%".

5.1 The final view was expressed in para 10.10,

"Following the above judicial pronouncements and views taken by Ld. CIT(A) & AOS in a few identical cases. In a couple of identical cases, where the GP shown by the appellants is more than 5%, I have confirmed the disallowance of the impugned purchases to the extent of 5% of

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the impugned purchases. However in the instant case the appellant is showing measly G.P. of only 0.78% on turnover. In view of this I am of the considered opinion that disallowance of 12.5% of the impugned purchases would be reasonable and would meet the ends of justice. Hence, the disallowance is restricted to 12.5% of the impugned purchases for the assessment year in appeal."

5.2 The disallowance at 100% was made in the assessment order for the year under consideration to the tune of Rs. 4,34,00,343/-, which was reduced to 12.5% at Rs. 54,25,040/-. Thereafter, the issue was delat with by the appellate Tribunal. The appellate Tribunal endorsed to the view taken by the appellate Commissioner. It was observed that Assessing Officer failed to consider the evidence furnished by the assessee.

5.3 Considering the facts and relevant aspect, the Income Tax Appellate Tribunal partially allowed the appeal of the assessee to further reduce the disallowance at 6%. In so concluding, the Tribunal observed in paragraph No.21 as under,

".......during the financial year under consideration the assessee has shown total turnover of Rs.

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66,09,62,458/-. The assessee has shown Gross Profit @ 78% and net Profit @ 0.02% (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 restricted the additions to 5% of GP. We have seen that in Mayank Diamonds P Ltd (supra), the assessee had declared GP @ 1.03% on turnover of Rs 1.86 Crore. The disputed transaction in the said case was Rs. 1.68 Crore. However, in the present case the assessee has declared the GP @ 0.78%. It is settled law

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that under Income-tax, the tax authorities are not entitled to tax the entire transaction, but only the income component of the disputed transaction, to prevent the possibility of revenue leakage. Therefore, considering overall facts and circumstances of the present case, we are of the view that disallowances @ 6% of impugned purchases / disputed purchases would be sufficient to meet the possibility of revenue leakage. In the result the ground No. 2 of appeal raised by the assessee is partly allowed and the grounds of appeal raised by revenue are dismissed."

6. The view taken and the conclusion arrived at by the appellant Tribunal are based on material before it and after analysing the facts and figure available before it. When the Tribunal has thought it fit to reduce the disallowance at 6% from 12.5%, the Tribunal had before it the facts which were duly analysed by it. No interference is called for in the said conclusion and findings of the Tribunal in the present appeal by this court.

6.1 The another weighing aspect is that the Tax Appeal No. 674 of 2022 in Principal Commissioner of Income Tax 1, Surat vs. M/s. Surya Impex which came

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to be decided by the co-ordinate Bench on 16.1.2023 dealt with the very issue of accommodation entries provided by Bhanwarlal Jain Group. The group involved in the said case is the same group who is saddled with allegations of providing accommodation entry to the assessee. In M/s. Surya Impex (supra) the court held in favour of the assessee. The questions of law involved in the said case were of the same nature and were in the context of similar facts involving the same group.

7. For all the above reasons, substantial questions of law proposed by the appellant in this appeal stands already answered. No question of law much less any substantial questions of law arise in the facts of the present case. No other substantial question of law arises. The appeal is meritless. It is summarily dismissed."

7. In view of the above, the substantial

questions of law proposed by the appellant in

this appeal stands already answered and

therefore, no question of law much less any

substantial questions of law can be said to

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have arisen in the facts of the present case.

The appeal is accordingly dismissed. No orders

as to cost.

(BHARGAV D. KARIA, J)