Case Law Details
PCIT Vs Sunil Devkishan Panwar (Gujarat High Court)
The Gujarat High Court considered an appeal filed by the Revenue under Section 260A of the Income Tax Act, 1961, challenging the order of the Income Tax Appellate Tribunal for Assessment Year 2012–13. The dispute arose from the deletion of an addition of Rs. 5.04 crore made by the Assessing Officer on account of alleged bogus purchases.
The assessee had originally filed a return declaring income of Rs. 9.90 lakh, which was assessed under Section 143(3). Subsequently, based on information received from the Investigation Wing, Mumbai regarding transactions with an entity alleged to be an accommodation entry provider, reassessment proceedings were initiated under Section 147. The reassessment order determined the total income at Rs. 5.21 crore, including the disputed addition for alleged bogus purchases.
The Revenue contended that the assessee had entered into transactions with an entity identified as an accommodation entry provider and that such transactions were not genuine. It was argued that the assessee failed to establish the genuineness of the purchases and that payments made through banking channels alone could not prove authenticity. The Revenue further argued that additional evidence submitted before the appellate authority was not subjected to verification by the Assessing Officer.
The assessee challenged the addition before the Commissioner of Income Tax (Appeals), who allowed the appeal. The appellate authority held that the Assessing Officer had not discharged the burden of proving that the transactions were sham. It was observed that no material evidence was brought on record to establish that the purchases were bogus.
The Tribunal, upon further appeal by the Revenue, upheld the decision of the CIT(A). It noted that the Assessing Officer had neither relied on any statement linking the assessee to alleged bogus transactions nor produced any cogent evidence to counter the documents submitted by the assessee. The Tribunal also observed that the Assessing Officer did not comment on the sales recorded by the assessee, nor were the books of account rejected or trading results reworked. The assessee had maintained proper records of purchases and sales, paid VAT, and completed sales tax assessments with input tax credit allowed.
The Tribunal further found that no adverse material was brought on record to substantiate the allegations forming the basis of reopening. It held that the Assessing Officer failed to verify the evidence provided by the assessee and made additions by ignoring relevant facts. Accordingly, the Tribunal confirmed the deletion of the addition.
Before the High Court, it was noted that there were concurrent findings of fact by both the CIT(A) and the Tribunal in favour of the assessee. The Court observed that the Assessing Officer’s conclusions were based on factually incorrect data and that there was no evidence to show that the assessee had made purchases from the alleged entity. It was also noted that the assessee had raised concerns regarding lack of opportunity for cross-examination and non-supply of material relied upon for reopening.
The High Court held that no substantial question of law arose from the case. It found no reason to interfere with the concurrent findings of the lower authorities, which were based on proper appreciation of facts. Accordingly, the appeal filed by the Revenue was dismissed.
FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT
1. The appellant-Revenue has preferred this appeal under the provision of section 260A of Income Tax Act, 1961 (for short “the Act”) assailing the order dated 28.06.2024 passed by the Income Tax Appellate Tribunal (for short “the Tribunal”), Surat in ITA No.61/srt/2024 for Assessment Year (AY) 2012-13.
2. The appellant-Revenue has proposed the following questions of law:
“(i) Whether on the facts and circumstances of the case and in law, the Hon’ble ITAT is justified in dismissing the appeal of the Revenue and upholding the decision of the Ld CIT(A) in deleting the addition made by the AO of Rs.5,04,80,000/- without appreciating the facts that the assessee had failed to prove the genuineness of the transaction made with “Keshav Impex” which was identified as a bogus accommodation entry provider, completely controlled by Shri Anil B. Chokhara?
(ii) Whether, on the facts and in the circumstances of the case and in law, the Hon’ble ITAT has justified in dismissing the appeal of the Revenue, relying upon the decision of Ld CIT(A) in deleting the addition without considering the facts that if separate additional documentary evidences submitted by assessee during the appeal proceedings on which decision was given, either which have been not provided to the Assessing Officer for verification or not called for a remand report on the same?
(iii) Whether, on the facts and in the circumstances of the case and in law, the Hon’ble ITAT is in ignoring the fact that even though the payments made by the assessee towards the purchases are through banking channels will not establish that the transactions are genuine?
(iv) Whether, on the facts and in the circumstances of the case and in law, the Hon’ble ITAT is justified in deleting the addition made of 100% of bogus purchases amounting to Rs.5,04,80,000/- by the Assessee from the entry provider and has not appreciated that the assessee has not established the genuineness of expenditure in the form of purchases either before the AO as the said purchases have been established by the Investigation Wing, Mumbai as sham transaction?”
3. The proposed substantial questions of law boils down to deletion of addition made by the Assessing Officer (AO) of Rs.5,04,80,000/-.
4. In the present case, the assessee filed his return of income for AY 2012-13 on 30.09.2012 declaring income at Rs.9,90,170/- and his case was selected for scrutiny and accordingly, assessment under section 143(3) of the Act was completed on 18.03.2015 determining income of the assessee at Rs.16,77,080/-. Thereafter, in view of the information received by the Investigation Wing, Mumbai relating to the transaction made with M/s.Keshav Impex, notice under section 148 of the Act was issued upon assessee on 30.03.2019. The assessment was completed under section 143(3) read with section 147 of the Act on 18.11.2019 by determining the total income of the assessee at Rs.5,21,57,080/-. Being aggrieved with the Assessment Order, the assessee preferred an appeal before the Commissioner of Income Tax (Appeals) (for short “CIT(A)”) and vide order dated 21.11.2013 the same was allowed replying on the fact that the AO had not discharged his onus of disproving the transactions with M/s.Keshav Impex as a sham arrangement, which finally culminated into the present tax appeal.5. earned Senior Standing Counsel Mr.Sanghani has submitted that the assessee has made transaction of Rs.5,04,80,000/- with Shri Anil Babubhai Chokhara i.e. proprietor of M/s.Keshav Impex, who is an accommodation entry provider on commission basis and the assessee is identified as one of beneficiaries to accommodate his unaccounted money through the said entity. It is submitted that during the course of investigation by the Investigation Wing, Mumbai, it was established that Shri Anil Chokhara was not doing any business activities of diamonds and mere providing accommodation entry in the books of account through his proprietorship business. He has submitted that the assessee has also not disputed the facts that he had made transactions with the impugned entity irrespective of sale and purchases. He has submitted that the transaction made by the assessee is also bogus transaction, whereas no real sale or purchases were made and hence, the AO had made addition on account of such bogus purchases from the alleged persons. Finally, it is urged that the present appeal may be allowed.
6. We find that there is concurrent findings in favour of the respondent-assessee. It is noticed by us that the findings of the AO of the alleged bogus purchases from M/s.Keshav Impex have been premised on the factually incorrect data and it is not found that the purchases were made by the assessee from such entity.
7. The assessee had also contended before the AO that the reopening of the assessment was not justified as the same was made on the basis of the information received from the Investigation Wing however, no material was supplied to him and no opportunity of cross-examination was also allowed. The CIT(A) has allowed full reliefs accepting the contentions of the assessee. The same was challenged before the Tribunal and after considering the respective submissions, the Tribunal vide order dated 28.06.2024 has held thus:
“9. We find that before the ld. CIT(A), the assesse reiterated his similar contention as raised before the Assessing officer. The ld. CIT(A) allowed relief to the assessee by holding that Assessing Officer has not discharged his onus of disproving the transaction of sale by assessee with Keshav Impex. The Assessing Officer neither referred the statement of proprietor of Keshav Impex wherein he has allegedly mentioned the name of the assessee as a beneficiary of bogus transaction nor brought any cogent evidence on record to controvert the document filed by the assessee. The Assessing Officer made addition of bogus purchases, no comments were made on the nature of sales made by assessee. Books of account of assessee was not rejected nor re-casted the trading result. The assessee has produced the record of purchases and sales, VAT has been duly paid, sales tax assessment has been completed and input credits were also allowed in favour of assessee. We find that the ld. CIT(A) allowed full relief to the assessee by appreciating the facts in right prospective.
10. We have independently examined the facts of the case and find that no adverse material is brought on record to substantiate the allegation of reopening that the assessee has shown purchases from impugned party i.e. Keshav Impex. The Assessing officer even not examined the facts pleaded by the assessee and to verify the evidence brought on record. The Assessing Officer made addition by ignoring vital facts. We find that the ld. CIT(A) on appreciation of facts, deleted the entire addition. Before us, no contrary fact or evidence is brought on record to take other view. Therefore, we affirm the order of the ld. CIT(A) with out additional observation. In the result, grounds of appeal raised by the revenue are dismissed.”
8. Thus, on overall appreciation of the facts and respective orders passed by the CIT(A) and the Tribunal in favour of the assessee and there being no concurrent findings, we are not disturbing the same. We also do not find that any question of law much less substantial questions of law is/are raised in the present appeal.
9. In light of the foregoing observations, the present appeal stands DISMISSED.
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