Gujarat High Court

Vrajendra Jagjivandas Thakkar vs Income Tax Officer, Ward 2(3)(8), ... on 26 September, 2023

Bench: Bhargav D. Karia

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    C/TAXAP/644/2023                             ORDER DATED: 26/09/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/TAX APPEAL NO. 644 of 2023
                                  With
                       R/TAX APPEAL NO. 654 of 2023
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                  VRAJENDRA JAGJIVANDAS THAKKAR
                               Versus
               INCOME TAX OFFICER, WARD 2(3)(8), SURAT
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Appearance:
MR. HARDIK V VORA(7123) for the Appellant(s) No. 1
for the Opponent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
       and
       HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 26/09/2023

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1. Both these appeals arise out of orders of the

Income Tax Appellate Tribunal, Surat, dated

31.12.2022 in the respective Tax Appeals.

2. Facts as narrated in the appeal memo read as

under.

2.1 The appellant is an individual and has filed his

return of Income for the A.Y. 2013-14 on

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30.09.2013 declaring total income at Rs.

4,21,090/-. The appellant is also covered under

provisions of audit as per section 44AB of the Act

and accordingly has filed audit report in Form

3CB-3CD along with duly audited financial

statements.

2.2 The Appellant was engaged in the business of

Import, export, trading in all kinds of diamonds

in the name and style of his proprietary concern

viz. Aditi Exports.

2.3 Search and seizure action was carried out by

Investigation wing, Mumbai in Shri Gautam

Kumar Jain group of Mumbai on 03.10.2013

during which, it was alleged that evidences were

found about the racket operated through benami

concerns run by these groups which provided

accommodation entries in form of bogus

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unsecured loans, bogus purchases and sales, etc.

The same was also accepted by them in

statements recorded u/s 132(4) of the Act.

2.4 As per the information, assessee was one of the

beneficiaries and hence, notice u/s 143(2) of I.T.

act was issued on 04.09.2014. Subsequently

notices u/s 142(1) of the act was issued on

20.08.2015.

2.5 Further, show cause notice was issued on

10.03.2016 asking to show cause as to why books

of accounts of the appellant should not be

rejected and the purchases amounting to Rs.

4,44,44,172/- should not be treated as bogus

purchases.

2.6 In response to the show cause notice, appellant

filed detailed submission on 18.03.2016 mainly

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contending that his proprietorship deals in all

types of diamonds, precious and semi-precious

stones and has turnover of Rs. 57,42,96,644/-

and the business is carried out from Surat and

Mumbai. He has maintained complete set of

books of accounts including cash book, bank

book, sales & purchase register, stock register,

etc. and the books of accounts are duly audited

by the Chartered Accountant. Appellant has filed

the return of income along with the tax audit

report in Form 3CB-3CD. During the assessment

proceedings, appellant has also submitted the

copies of purchase invoices along with the bank

statements showing that all the payments have

been made through account payee Cheque/

RTGS. Further, the appellant also asked the

respondent to provide the copy of statements

recorded during the search and also an

opportunity to cross examine them.

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2.7 However, Respondent did not find the

submission of the appellant convincing and

passed the Assessment Order on 23.03.2016

assessing the total income at Rs. 4,48,65,262/- by

making addition of Rs. 4,44,44,172/- on the

ground of bogus purchases.

3. The CIT(Appeals) and the Tribunal confirmed the

Assessment order.

4. The following substantial questions of law have

been raised in the appeal.

"(1) Whether on facts and circumstances of case as well as law on the issue, Ld. Tribunal is right in confirming addition to the extent of 5% of alleged bogus purchases without any base and ignoring book results for the year under consideration and/or earlier/preceding years;

(2) Whether on facts and circumstances of case as well as law on the issue, Ld. Tribunal is right in confirming addition to the extent of

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5% of alleged bogus purchases under section 69C of the act;

(3) Whether on facts and circumstances of case as well as law on the issue, Ld. Tribunal is right in ignoring the fact that appellant has produced all the documentary evidences supporting the transactions including stock statement;

(4) Whether the impugned order passed by ld. Income Tax Appellate Tribunal is bad in law being perverse for non-appreciation of facts, circumstances and documentary evidences;"

5. Mr.Hardik Vora learned counsel for the

appellants would submit that appellant has

already filed detailed submission stating that all

the purchase transactions are bona-fide and

contention was also supported by copy of ledger

accounts, invoices and bank statement

highlighting payments. Further, appellant also

submitted the stock register showing that the

diamonds purchased from various parties are

also further sold to other parties. However,

Assessing Officer without considering the fact

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that assessee has submitted all the documentary

evidences, passed the order disallowing

purchases amounting to Rs. 4,44,44,172/-.

5.1 He would further submit that there is no

dispute that the assessee has made payments by

account payee cheques which have been cleared

through the normal banking channels, Assessee

had furnished the bills, delivery challans and

ledger confirmations and copies of their return of

income and the transactions appear to have been

duly accounted for in the books of Assessee.

Appellant has also provided stock register

showing one-to-one correlation of purchase and

sales transaction. Hence, on furnishing all the

documentary evidences, appellant has

reasonably discharged his primary onus to

substantiate the genuineness of purchases.

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5.2 Further, there is no evidence or material

brought on record by the Assessing Officer that

the purchases made were for cash or that the

purchasers had returned the cash corresponding

to the cheque payments received from the

Assessee. There is no evidence of money flowing

back to the Assessee and hence, the Assessing

Officer had made the addition merely on the

basis of presumption.

6. Having heard Mr.Hardik Vora learned advocate

for the appellants, the perusal of the facts in the

assessment order show that, it was noticed that

the assessee has made transactions with the

entities of Gautam Jain Group. The Assessing

Officer was in possession of information that a

search and seizure action has been carried

out by the Investigation Wing Mumbai on

the Gautam Jain Group which indulged in

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providing of accommodation entries in the form

of unsecured loans, bogus purchases / sales to

the interested parties.

6.1 Based on the findings of the investigation

wing which carried out a search with the Gautam

Jain group, on evidence and material facts, it was

found that the assessees were being given

accommodation entries which were utilized by

such assessees to suppress profits for the year to

that extent. The assessees were found to be the

beneficiaries of the accommodation entries

provided by the entities of the Gautam Jain

group. The assessees had furnished tax invoice,

extract of the stock register, copies of bank

statements evidencing payments through

banking channels and confirmatory statement of

accounts, however, the Assessing Officer on

perusal of details found that the Income Tax

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Department has conducted search & seizure

action in the case of group concerns of Shri

Gautam 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. Evidently, the

assessee had adopted a modus-operandi to

reduce its true profits by inflating its expenses

including purchase expenses by taking

accommodation entries from such parties. Thus,

in the books of accounts of the assessee, the

purchases to the extent made from the above

said parties remained unverifiable and hence

undersigned arrived at a conclusion that the

purchases shown by the assessee in the books of

accounts are initiated and bogus purchases are

debited to trading account to suppress the true

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profits to be disclosed to the Department. The

onus was upon the assessee to establish the

genuineness of purchases made by the assessee.

7. Hence, the Assessing Officer held that the

purchases made by the assessees and claimed as

expenses in its profit and loss account, are not

genuine. The CIT(A) partly allowed the appeal

restricting the disallowance to 5% of the

impugned purchases. The Tribunal held as

under:

"27. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. CIT(A) and other material brought on record. We note that main grievance of the assessees in these appeals is that since assessee has submitted bills, vouchers, stock register and transactions were through banking channels, therefore, addition at the rate of 5% sustained by Ld.CIT(A) should also be deleted, whereas main grievance of Revenue is that since all purchases made by

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assessees were bogus and in the nature of accommodation entry, hence addition made by the Assessing Officer should be sustained. We note that the issue under consideration is squarely covered by the judgement of the Co-ordinate Bench in the case of Pankaj K. Chaudhary (in ITA No.1152/AHD/2017), dated 27.09.2021, wherein the Co-ordinate Bench of Surat has sustained the addition at the rate of 6% of bogus purchases. Therefore, we note that these cross-appeals are squarely covered by the judgment of this Tribunal in the case of Pankaj K. Choudhary (supra) wherein the Tribunal held as follows: "12. We have heard the submission of ld.CIT-DR for the Revenue and the ld. Authorised Representative (AR) of the assessee. We have also gone through the various documentary evidences furnished by assessee. The ld. CIT-DR for the Revenue supported the order of AO. The ld. CIT-DR submits that Investigation Wing, Mumbai made a search on Bhanwarlal Jain Group. During the search and after search, the Investigation Wing made a thorough investigation and concluded that Bhanwarlal Jain Group and his associates including his sons were indulging in managing about 70 benami concerns. The benami concerns were engaged in providing accommodation entries. The assessee is one of the beneficiaries of such accommodation entries. In the transaction of accommodation entries, the documentary evidences are created in such a way, so that the bogus transaction is looks like genuine transaction. In bogus transaction, the

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fabricated evidences are always maintained perfectly. The assessee has obtained accommodation entry only to inflate the expenses and to reduce the ultimate profit. No stocks of diamonds were found at the time of 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 Purushttom Dass Bangur [1997] 90 Taxman 541 (SC) and Mayank Diamond Private Limited (2014) (11) TMI 812 (Gujarat High Court). AGR Investment Vs

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Additional Commissioner 197 Taxman 177 (Delhi) and Chuharmal Vs CIT [1998] 38 Taxman 190 (SC). 14. On the other hand, the ld.AR of the assessee submits that he has challenged the validity of reopening as well as restricting the addition to the extent of 12.50% of the alleged bogus purchases. The ld.AR of the assessee submits during the assessment, the AO has not made any independent investigation. The AO reopened the case of the assessee on the basis of third party information without making any preliminary investigation. The AO received vague information about providing accommodation entry by Bhanwarlal Jain Group. No specific information about the accommodation entry obtained by assessee was received by AO. There is no live link between the reasons recorded qua the assessee. Therefore, the re-opening is invalid and all subsequent action is liable to be set aside. 15. On account of additions of bogus purchases, the ld.AR submits that in the original assessment, the assessee filed its complete details of purchases to prove the genuineness of expenses. The AO accepted the same in the assessment order passed under section 143(3) on 10.03.2009. During re-assessment, the assessee again furnished complete details about the genuineness of purchases. The assessee filed confirmation 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

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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:

1. M/s Andaman Timber industries VsCommissioner of Central Excise, CIVIL APPEAL NO. 4228 OF 2006 (Supreme Court)

taxmann.com 281 (Gujarat)

3. Albers Diamonds Pvt. Ltd. Vs ITO 1(1)(1), Surat I.T.A. No.776 &1180/AHD/2017

4. The PCIT-5 vs. M/s. Shodiman Investments Pvt. Ltd. TTANO. 1297 OF 2015 (Bombay High Court)

5. ShilpiJewellers Pvt. Ltd. vs. Union of India &Ors. WRIT PETITION NO. 3540 OF 2018 (Bombay High Court)

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6. CIT in Vs. Mohmed Juned Dadani 355 ITR 172 (Gujarat)

7. Micro Inks Pvt. Ltd. Vs. ACIT [2017] 79 taxmann.com 153 (Gujarat)

8. Shakti Karnawat Vs. ITO - 2(3)(8), Surat ITA 1504/Ahd/2017 and 1381 /Ahd/2017

9. Asian Paints Ltd. Vs. DCIT, [2008] 296 ITR 90 (Bombay)

10. PCIT, Surat 1 Vs. Tejua Rohit kumar Kapadia [2018] 94 taxmann.com 325 (SC)

11. The PCIT-17 vs. M/s Mohommad Haji Adam & Co. ITA NO. 1004 OF 2016(Bombay High Court)

12. Pankaj Kanwarlal Jain HUF Vs. ITO 2(3)(8) Surat ITA.No.269/SRT/2017

16. In the rejoinder submissions the ld. CIT- DR for the revenue submits that that rigour of the rules of evidence contained in the Evidence Act is not applicable before the tax authorities. It was submitted that the ratio of various case laws relied by the ld. AR for the assessee is not applicable on the facts of the present cases. 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.

17. We have considered the submissions of the parties and have gone through the order of the lower authorities. We have also deliberated on each and every case laws relied by both the parties. We have also examined the financial statement of all the assessee(s) consisting of computation of

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income and audit report. We have also gone through the documentary evidences furnished in all cases. Ground No.1 in assessee's appeal relates to the validity of reopening. The ld AR for the assessee vehemently argued that the AO reopened the case of the assessee on the basis of third party information, and without making any preliminary investigation, which was vague about the alleged accommodation entry by Bhanwarlal Jain Group. And that there was no specific information about the accommodation entry availed by the assessee. There is no live link between the reasons recorded qua the assessee. We find that the assessee has raised objection against the validity of the reopening before the AO. The objections of the assessee was duly disposed by AO in his order dated 09.02.2015. The assessee raised ground of appeal before ld CIT(A) while assailing the order of AO on reopening. The ld CIT(A) while considering the ground of appeal against the reopening held that the AO has received report from investigation wing Mumbai, which indicate that the assessee is beneficiary of the accommodation entry operators. The accommodation entry provider admitted before investigation wing that he has given such entry to various persons; based on such report the AO has reason to believe that the income of the assessee has escaped assessment and thus the action of AO in reopening is justified.

18. We find that the Hon'ble Jurisdictional High Court in Peass Industrial Engineers (P)

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Ltd Vs DCIT (supra) while considering the validity of similar notice of reopening, which was also issued on the basis of information of investigation wing that they have searched a person who is engaged 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 is dismissed.

19. Ground No. 2 in assessee's appeal and the grounds of appeal raised by the revenue

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are interconnected, which relates to restricting the disallowance of bogus purchases to the extent of 12.5%. The AO made of 100% of purchases shown from the hawala dealers/ entry provider namely Bhanwarlal Jain. We find that the AO while making additions of 100%, of disputed purchases solely relied on the report of the investigation wing Mumbai. No independent investigation was carried by the AO. The AO has not disputed the sale of the assessee. The AO made no comment on the evidences furnished by the assessee. We further find that ld CIT(A), while considering the submissions of the assessee accepted the lapses on the part of the AO and noted that no sale is possible in absence of purchases. The Books of the assessee was not rejected by the AO. The ld CIT(A) on further examination of the facts and various legal submissions find that Ahmedabad Tribunal in Bholanath Poly Fab Private Limited (supra) held that in the such cases the addition of bogus purchases was sustained to the extent of 12%, on the observation 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) by considering the overall facts, concluded that the 100% disallowance of purchase is not justified. We also find that the ld.CIT(A) also considered the decision of jurisdictional High Court in Mayank Diamonds Pvt. Ltd. (supra) and compared the fact of the present case with the facts in Mayank Diamonds Pvt Ltd (supra) and noted that assessee in that case

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was also engaged in the trading of polished diamonds. The ld CIT(A) noted that in that case the AO made disallowance of entire bogus purchase and on first appeal before CIT(A) the disallowances were maintained. However, the Tribunal gave partial relief to the assessee directing to sustain the addition @12% of such bogus purchases. And on further appeal, the Hon'ble High Court sustained Gross Profit Rate @ 5% being average rate of profit in industry.

20. Now adverting to the facts of the present case, the ld.CIT(A) held that in some other similar cases; though he had sustain 5% of Gross Profit Rate, considering the fact that where Gross Profit shown by those assessee's are more than 5%. However, in the present case, the assessee has merely shown Gross Profit 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

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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 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.

22. In the result the appeal of revenue is dismissed and the appeal of the assessee is partly allowed."

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8. The entire issue was decided based on

appreciation of facts where it was found that the

assesses had obtained the bill from M/s. Rajan

Gems amounting to Rs.18,97,69,219/- and M/s.

Rajat Diamond Pvt. Ltd. amounting to

Rs.9,71,14,206/- which were Shri Gautam Jain

and group concerns without actually getting the

material. This was nothing but an