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2. Since the issues involved in all the years under consideration are similar, the same are being dealt by way of a common order for all the assessment years under consideration.

3. The Revenue has raised the following grounds of appeals:-

Assessment year 2009-10

"1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs.1,86,97,354/- on account of disallowance of subcontract expenses, when the sub-contractors failed to justify with documentary evidence that contract work was executed by them for the assessee firm.

2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs.1,86,97,354/- on account of disallowance of subcontract expenses, when the so called payments were made by the assessee firm to the sub-contractors only after presentation of bills but these sub-contractors were not having such financial capacity to make payment/advances to large number of labourers and material purchases.

3. It is, therefore, prayed that the order the Ld. CIT(A)-12, Ahmedabad may be set aside and that of the AO may be restored to the above extent.

4. The appellant craves leave to add, alter, amend and/or withdraw any ground(s) of appeal either before or during the course of hearing of the appeal."

Assessment year 2010-11

"1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs.2,11,82,210/- on account of disallowance of subcontract expenses, when the sub-contractors failed to justify with documentary evidence that contract work was executed by them for the assessee firm.

2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs.2,11,82,210/- on account of

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disallowance of subcontract expenses, when the so called payments were made by the assessee firm to the sub-contractors only after-presentation of bills but these sub-contractors were not having such financial capacity to make payment/advances to large number of labourers and material purchases.

3. It is, therefore, prayed that the order the Ld. CIT(A)-12, Ahmedabad may be set aside and that of the AO may be restored to the above extent.

4. The appellant craves leave to add, alter, amend and/or withdraw any ground(s) of appeal either before or during the course of hearing of the appeal."

Assessment year 2011-12

"1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs.2,55,99,559/- on account of disallowance of subcontract expenses, when the sub-contractors failed to justify with documentary evidence that contract work was executed by them for the assessee firm.

2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs.2,55,99,559/- on account of disallowance of subcontract expenses, when the so called payments were made by the assessee firm to the sub-contractors only after presentation of bills but these sub-contractors were not having such financial capacity to make payment/advances to large number of labourers and material purchases.

3. It is, therefore, prayed that the order the Ld. CIT(A)-12, Ahmedabad may be set aside and that-of the AO may be restored to the above extent.

4. The appellant craves leave to add, alter, amend and/or withdraw any ground(s) of appeal either before or during the course of hearing of the appeal."

Assessment year 2012-13

"1. On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in deleting the addition of Rs.2,29,18,612/- on account of disallowance of subcontract expenses, when the sub-contractors failed to justify with documentary evidence that contract work was executed by them for the assessee firm.

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2. On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in deleting the addition of Rs.2,29,18,612/- on account of disallowance of subcontract expenses, when the so called payments were made by the assessee firm to the sub-contractors only after presentation of bills but these sub- contractors were not having such financial capacity to make payment/advances to large number of labourers and material purchases.

3. It is, therefore, prayed that the order the Ld. CIT(A)-12, Ahmedabad may be set aside and that of the AO may be restored to the above extent.

4. The appellant craves leave to add, alter, amend and/or withdraw any ground(s) of appeal either before or during the course of hearing of the appeal."

Assessment year 2016-17

"1. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in deleting the addition of Rs.1,61,75,302/- on account of disallowance of bogus payment to sub-contractors, without appreciating that the sub-contractors failed to justify with documentary evidence that contract work was executed by them for the assessee company.

2. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in deleting the addition of Rs. 1,61,75,302/- on account of disallowance of bogus payment to sub-contractors, without appreciating that the so called payments were made by the assessee company to the sub-contractors only after presentation of bills but these sub-contractors were not having such financial capacity to make payment/advances to large number of labourers and material purchases.

3. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in deleting the addition of Rs. 1,61,75,302/- on account of disallowance of bogus payment to sub-contractors without appreciating that the bills/invoices raised by the sub-contractors show the technical work done i.e. erection, fixing of tower accessories, steel reinforcement, sub setting template whereas the so called payments by the assessee company to the sub-contractors is claimed as charge for labour supply.

4. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in deleting the addition of Rs. 1,61,75,302/- on account of disallowance of bogus payment to sub-contractors without appreciating that all the bills/invoices raised by the sub-contractors have been generated from the computer system of the assessee company.

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5. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in deleting the addition of Rs. 1,61,75,302/- on account of disallowance of bogus payment to sub-contractors without appreciating that even the assistance of the employees of the company was taken for the purpose of operating bank account and withdrawal of cash.

6. It is, therefore, prayed that the order the Ld. CIT(A)-12, Ahmedabad may be set aside and that of the AO may be restored to the above extent.

7. The appellant craves leave to add, alter, amend and/or withdraw any ground(s) of appeal either before or during the course of hearing of the appeal."

We shall start with assessment year 2009-10 as the lead assessment year.

4. The brief facts in relation to this year are that the assessee is a partnership firm and is engaged in the business of erection, procurement/supply and construction of transmission towers for carrying electric line. The assessee filed its return of income for assessment year 2009-10 declaring total income of

92, 47,160/-. A survey under section 133A of the Act was conducted on 18-6-2015, as a consequence to which it was found that the assessee firm had shown payments to various sub- contractors (

1,86,97,354/- for assessment year 2009-10). The statement of the sub-contractors were recorded, on the basis of which the AO concluded that the sub- contractors could not provide any evidence of the contractual work done by them for the assessee firm, except copies of invoices of such work. The case of the assessee was reopened under section 148 of the Act and the objections filed by the assessee against issuance of notice under section 148 of the Act were disposed of the AO vide order dated 10-11- 2016. During the course of assessment, the AO held that a sum of

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1,86,97,354/- paid to various subcontractors was made on the basis of bogus bills obtained by the assessee and no work was done by those subcontractors. While making the disallowance, the AO observed as under:

(i) Majority of the sub- contractors had worked only for M/s Ultratech transmissions

(ii) The sub- contractors had no record such as material purchase bills, wage registers etc.

(iii) In case of majority of sub- contractors, the return of income was filed by the employees/owner of M/s Ultratech transmissions.

(iv) The contractors filed income tax returns showing's income under section 44AD of the Act, though they were supposed to maintain the books of accounts

(v) The bank accounts of all the sub- contractors were opened by them in Canara Bank, Baroda on the advice of Mr Rajnikant (employee of the assessee) who was the introducer of these contractors to the bank

(vi) In many cases, the cheques are received from M/s Ultratech Transmissions were deposited in the bank account and cash was withdrawn from the bank account of sub- contractors

(vii) Majority of the sub- contractors had no technical training to do the work foundation and erection of electrical transmission towers

(viii) Majority of sub- contractors were poor on did not have financial capability to work on credit for amounts running in lakhs of rupees

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(ix) The correspondence address provided to Canara Bank by such sub- contractors was the registered address of M/s Ultratech Transmissions

4.1 In view of the above observations, the AO concluded that the assessee had created bogus bills of the sub- contract expenses in the name of those sub- contractors, paid them through cheques and received back cash from them and thus, bogus sub- contracting expenses were claimed in order to reduce the profit of the firm and to evade taxes. Accordingly, the AO disallowed a sum of

1,86,97,354/- for assessment year 2009-10 and added back the same to the total income of the assessee.

5. In appeal, the assessee challenged the reopening of assessment under section 147 of the Act and also contended that on merits, the AO erred in facts and in law in holding that the assessee had created bonus sub- contracting expenses. The Ld. CIT(Appeals) dismissed the assessee's challenge to reopening under section 147 of the Act on the ground that the judgement cited by the assessee were on the peculiar facts of that case and in the case of the assessee, it was a prima facie belief of the AO that considering the statements of the sub- contractors of the assessee recorded during the course of survey and the fact that the sub- contractors did not maintain proper records of the work carried out by the assessee, the expenses related to payment made was required to be properly examined. The Ld. CIT(Appeals) held that it is a settled law that at the time of formation of opinion, the AO need not come to the final conclusion and a detailed examination of the prima facie incriminating facts can be conducted only

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during the course of assessment proceedings and the initial findings can be taken to their logical conclusion in the assessment order. Accordingly, the challenge to issuance of 147 notice was dismissed by Ld. CIT(Appeals) in light of the above observations. On merits of the case, Ld. CIT(Appeals) allowed the assessee's appeal and deleted the addition on account of bogus sub- contract expenses, with the following observations:

"5.4 I find that the said disallowance is based mainly on the ground that from their statements and verification of their bank accounts, it was noticed that the sub-contractors had filed their returns declaring receipt for the work carried out by them for the appellant at various sites u/s 44AD of the Income tax Act. It was further found that the said sub-contractors had withdrawn cash for defraying the wages to their workers and such withdrawals was assisted by the employees of the appellant. The Assessing Officer therefore presumed that the cash so withdrawn must have come back to the appellant and consequently, the payments made to the sub-contractors were held by him to be non-genuine. As against the above action of the AO, it is the submission of the appellant that the AO has misdirected himself in concluding that the huge payment made to the sub-contractors against their various bills was not genuine when all the sub-contractors categorically admitted in their statements that they were engaged by the appellant and they also admitted at which sites they had provided the labourers. The further submission of the appellant is that income or revenue from the work carried out by the appellant through the sub-contractors was accepted by the AO and that it is obvious that no such revenue could be earned if, such work was not carried out which could only be carried out by engaging the sub-contractors and labourers. A Chart showing such revenue being earned as per various sales bills raised by the appellant is also filed before me, Having considered the facts of the case, the observations of the AO and the detailed submissions of the appellant as also, considering the ratio of various case laws relied on in support of the facts on similar type of issue, I am inclined to agree with the appellant that disallowance of subcontractors' expenses of Rs. 1,86,97,354/- made by the AO on the various grounds is not justified. The disallowance is made on the grounds that the sub- contractors could not justify the source of payment by them to their daily wage labourers, bills were prepared by the officials of the appellant, records was not maintained by them, withdrawals were made with the help of the employees of the appellant after payment by the appellant against their bills, bills are created on computer system of appellant, the appellant firm is not registered with Labour Department or Service tax Department - which are not a sound and legally tenable basis for adverse inferences and conclusions.

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5.5 It is trite law that a statement has to be read as a whole and cannot be accepted in part and disregarded for another; part. There is nothing in the statement which indicates that the sub-contractors did not provide labourers for carrying out the appellant's work. In fact, all the sub-contractors have categorically stated in reply to the question put to them that they were engaged in providing labourers for the identified work of the appellant and that they worked for the appellant. It is common knowledge that in the line of civil construction, contractors and sub-contractors are mainly illiterate persons who collect labourers from various different location where the civil construction work is carried on. In compliance with the statutory provisions, payment to them has to be made by proper banking channel and the same is so made by the appellant after deducting TDS as per the provisions of the Income tax Act. The sub- contractors have to disburse wages to their labourers in cash and if the assistance of the employees of the appellant is taken for the purpose of operating bank accounts and withdrawals of cash, it cannot be resumed that cash so withdrawn is not actually disbursed and has come back to the appellant. There is not even an iota of evidence brought on record by the AO for such a presumption. The decision of Hon'ble Ahmedabad in the case of ACIT vs Shri Ramniklal R.Gondalia ITA No: 3690/Ahd/2008 has considered this aspect. In the said case, the disallowance of payment made to sub-contractors was partly disallowed as the facts in that case were that all labour bills were prepared by the accountant of the assessee and cheques were received by them 8 to 10 days after that, they would make payments to labourers every week. The amounts were withdrawn from their bank accounts and a scrutiny of the cheques received from the bank revealed that the withdrawals from these accounts were made by one Shri Jiten and Shri R. S. Jariwala, who were the accountants of the assessee. The AO, therefore, was of the view that all the labourers contractors were issued cheques and then cash was withdrawn from their accounts by the assessee's accountants and therefore, the money was routed through the accounts of the labour contractors and finally returned to the assessee itself and therefore, no payment was made to the sub contractors. The AO further found that all the sub contractors had shown 8% profits in their returns and the assessee's net profit ratio was also very low being 2.2%. The CIT(A) deleted disallowance since according to him the fact that amount was withdrawn by the employees of assessee would not prove that such cash went back to the assessee when the sub- contractors had admitted having worked for the assessee. When the matter was carried to the Hon'ble Income tax Appellate Tribunal, the ITAT affirmed the order of the CIT(A) by holding that the Ld. CIT(A) considering the submission of the assessee and the material on record correctly noted that the disallowance is totally unjustified, since the payments have been accepted by the sub contractors and the payments were subjected to TDS and also were made by account payee cheques and therefore, there was no reason to presume that the payments withdrawn by the sub contractors from their accounts have returned to the assessee. The ITAT held that in the absence of any specific material available against the assessee on record, there was no case for interference. Thus this

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decision answers the questions in the instant case of the appellant that neither the fact about withdrawal of cash by the sub-contractor with the assistance of the employee of assessee nor the fact that the sub contractors had shown profit at flat 8% on presumptive basis entitles the AO to hold that payment made to the sub- contractors is not genuine.

5.6 I find force in the contention of the appellant that there can be no sales or revenue from the work unless there is engagement of labour for such work and in the instant case, the revenue earned from various work carried out by the appellant having been not in dispute, the fact of engagement of labour contractors for such work is required to be also accepted. This is once again substantiated by the replies of the sub-contractors in their statement where in they specifically admitted having been engaged and supplied labour for such work by the appellant. It is therefore not a correct conclusion by the AO that no work was done by the sub-contractors. It seems that the AO has proceeded on the footing that sub-contractors could not plead ignorance of law while not keeping records and maintaining accounts. The fact that these sub contractors are illiterate people is not disputed by AO. For any such fault of the sub-contractors in not maintaining records, no adverse view can be taken in the case of appellant when the revenue declared from the work and the profit margin earned from such work and the percentage of labour expenses proves it beyond doubt that it could not be possible without engagement of labour contractors. Regarding filing of income tax returns by the sub-contractors and non maintenance of accounts by them u/s 44AD of the Income tax Act, again the same does not lead to the conclusion that receipts shown by them in their returns is not actual payment made to them by the appellant for their engagement of the appellant's work. When the law itself entitles certain specified tax payers to file their income tax returns on presumptive basis and exempts them from maintaining detailed books of account, there is no justification to question, the correctness of the receipts shown therein. This view is confirmed by the Ahmedabad 1TAT in above decision in the case of ACIT vs Shri Ramniklal R. Gondalia 1TA No: 3690/Ahd/ 2008 and also by decision of Ahmedabad ITAT in the case of ACIT vs M/s R.N.Dobaria ITA No:

1788/Ahd/2009. Similar view is taken on the issue of genuineness of cash credit in the case of Shri Divyakani Nanjibhai Patel vs ACIT ITA No:3371/Ahd/2010 & 1888/Ahd/2014 that filing of returns u/s 44AD by creditors does not lead to conclusion about genuineness of the transactions. The audited accounts of the appellant have also not been rejected by AO.

5.7 The issue can also be looked at from another angle. While the fact regarding revenue being declared from the work carried out through the engagement of sub- contractors is a strong factor which proves the genuineness of the expenditure, if the disallowance of huge expenditure towards such sub-contract payment is made, the same will result in to distorted picture of Gross and net profit which is unrealistic and impossible in the line of the business of construction in which the appellant is engaged in. The Ld. AR rightly contended that even the appellant

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requested the AO to verify the general trend of result of assessees engaged in similar business of Transmissions tower and foundation work by providing the list of other parties along with their addresses and PAN but the AO remained inactive on such a request on the ground that facts and figures of comparable assessees were not given by the appellant. The AO did not exercise the powers conferred on him by the Act to call for and verify such facts and figures once their PAN and addresses were furnished. Furthermore in various years (except A.Y. 2013-14 and 2014-15) the turnover is rising and the GP and the NP have been increasing in the case of the appellant which hits the basic premise of t he AO that the appellant is reducing its income and evading tax. And in any case, the AO has grievously erred in disallowing the entire labour /sub-contractors' expenses without which the work could not have been completed and income could not have been earned. Considering the totality of the facts and legal position emerging from the judicial pronouncment cited by the appellant and as discussed above, 1 see no justification on the part of the AO to make disallowance of Rs.1,86,97,354/- being expenses in respect of payment to sub-contractors. The A.O. is directed to delete the same. This ground of appeal is allowed."

6. The Revenue is in appeal before us against the aforesaid order passed by Ld. CIT(Appeals) deleting the additions made in totality on account of bogus sub-contracting expenses. In response, the counsel for the assessee has filed application under Rule 27 of the Income Tax Appellate Tribunal Rules, 1963 challenging the order of Ld. CIT(Appeals) to the extent it has confirmed the action of the AO for reopening of assessment under section 147 of the Act.

We shall first discuss the Revenue's ground of appeal.

7. Before us, the Ld. DR submitted that from the instant set of facts, it is very clear that it is a case of bogus sub- contracting expenses created by the assessee. He submitted that as per the statements which were recorded for a few of the sub- contractors, they could not provide any concrete piece of

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evidence in support of any work done the by them. He drew our attention to page 20 of the assessment order and submitted that while the bills were for technical work done by the sub- contractors, there is no bill which is charged for supply of labour. Further, no evidences in support of payment by these sub-contractors towards labour and purchase of material was submitted. The DR further pointed out that the bank account of the sub-contractors were being managed/operated by the employees of the assessee firm, which is a clear pointer towards the fact that all the sub-contractors were bogus. The DR further submitted that from the facts it is evident that all the bills were manufactured in the assessee's office only. The DR drew our attention to page 22 of the assessment order and submitted that on the basis of statement recorded of Mr Dolatsinh, proprietor of Jay Ambe Construction (one of the sub-contractors), he could not submit any evidence to substantiate that the work was done except the bills. He could not justify the source of cash payment for material procurements and he had further submitted that he used to sign blank cheques of his bank account and give it to the officials/employees of the assessee firm. The DR submitted that the sub- contractors are not maintaining any labour wage register or receipt in respect of payments being made to labour (refer page 6 of assessment order) and neither is the sub-contractor maintaining purchase receipts of materials (refer page 7 of assessment order question 7). Further, the sub-contractor stated during assessment proceedings that the bank accounts are being maintained/operated by employees of Ultratech Transmission, their Income Tax returns are being filed by Ultratech Transmission and further that so far as the cheques are concerned, they simply sign the blank cheque and hand it over to the employees of M/s Ultratech Transmission, for necessary action.

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The AO further observed that from the details called regarding operations of the sub-contractors Bank account, it was seen that the cash withdrawals were done by Shri Deepak Rai and other persons, who worked as accountant/ employees of the assessee firm. Therefore, it is quite evident that the sub- contracting expenses claimed by the assessee firm were clearly bogus in nature. The DR invited our attention to pages 26, 31 and 33 of the assessment order and submitted that no details of work done by the sub- contractors were found and further that all the bills are generated in the computer system of the assessee itself, which shows that the same are bogus in nature.

8. In response, the counsel for the assessee submitted that on perusal of page 5 of the assessment order, para 9, it is evident that the complete details of the work done is on record. He drew our attention to question number 9 at page 6 of the assessment order, question number 13 at page 7 and question number 14 at page 7 of the assessment order and submitted that the replies submitted by the sub- contractors show that they had actually done work for the assessee firm. He further drew our attention to question numbers 5 and 7 at page 9 of the assessment order and submitted that the same proves that the sub- contractor were in fact carrying out work on behalf of the assessee firm. The Ld. Counsel for the assessee submitted that though it is correct that sometimes the bank account of the sub- contractors are operated by employees of the assessee firm, however the same is on account of operational exigency since sometimes the work sites are located at far-off and remote places, where banking facilities are not there. Further, the counsel for the assessee submitted that the assessee was provided statements

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of only four sub- contractors (out of 11 sub-contractors), and the statement of the balance sub- contractors on the basis of which the assessment was framed was not provided. The counsel for the assessee invited our attention to the case of ITO v. SP Construction in ITA number

259/Bangalore/2012 (at page 34 of the paper book) and submitted that in this case on similar facts only 9% of labour charges were disallowed. The counsel for the assessee further submitted, that in case all the sub- contracting expenses were held to be bogus, the GP rate of the assessee would inflate to 47%, which is clearly abnormal and unimaginable in the assessee's line of business. The counsel for the assessee also drew our attention several other judicial precedents on the subject, where either the disallowance on account of bogus expenses were deleted or only a certain percentage of the bogus expenses were disallowed, considering the particular facts of the case.

9. We have heard the rival contentions and perused the material on record. We observe that in the instant case, the assessee is in the business of erection, procurement/supply and construction of transmission towers for carrying electric line. For the purpose of carrying out work, the assessee engaged several sub-contractors. It is not a matter of dispute that the income earned from such activities have been subject to tax in the hands of the assessee. Further, it was also not possible for the assessee to carry out such contract work without engaging sub-contractors to carry out the same. The argument of the assessee is that once the tax has been levied on the sales/ contractual income earned by the assessee, and the income from the assessee's business itself has not been doubted, then the entire sub-

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contracting expenses cannot be disallowed for the simple reason that it would not have been possible for the assessee to carry out the work in absence of the necessary work being sub-contracted, which facilitated the earning of income. At the same time, we also observe that there are certain evident/apparent discrepancies which are seen from the statements of sub- contractors recorded and other facts on record before us, which point out to the fact that the sub- contractors are not completely genuine (as observed by the AO in detail during the course of assessment proceedings). In our view, it would not be justifiable to disallow the entire sub-contracting expenses when the corresponding income has been subject to tax in the hands of the assessee. However, when on consideration of the totality of facts and circumstances, it is found that the expenses claimed are not genuine, then there is always an element of speculation on the quantum of disallowance that should be made in case expenses made which are apparently not genuine. In this respect, it would be useful to discuss some of the decisions, which throw useful light on the subject before us.

9.1 In the case of Synbiotics Ltd [2019] 106 taxmann.com 316 (Gujarat), the Gujarat High Court held that where Assessing Officer made addition on account of bogus purchase of raw material by assessee company, since Commissioner (Appeals) and Tribunal concurrently found that assessee had yielded huge profits during year from sales which would not be possible without utilising huge raw material, Tribunal was wholly justified in restricting impugned additions on account of bogus purchased to 25 per cent. However. in the case of Sanjay Oilcake Industries [2009] 316 ITR 274 (Gujarat), the Gujarat High Court held that where certain additions

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were made on account of inflated purchase price and alleged sellers were not traceable and though payments had been made by account-payee cheques, entire amounts so deposited had been withdrawn by bearer cheques, Tribunal was justified in sustaining addition. In the case of Premkumar B. Rathi [2015] 59 taxmann.com 203 (Gujarat), the Assessing Officer opined that assessee failed to discharge onus of proving genuineness of aforesaid purchase; he, thus, made addition of 25 per cent of total purchases taking it as 'unexplained purchase'. The Commissioner (Appeals) reduced addition to 20 per cent on account of unexplained purchases. The Tribunal further reduced said disallowance to 10 per cent of purchases relying on decision of coordinate bench of Tribunal. The Gujarat High Court upheld the order of Tribunal and held that the same did not require any interference and confirmed the disallowance @10% of bogus purchases. In the case of

Jagdish H Patel [2017] 84 taxmann.com 259 (Gujarat), the Gujarat High Court held that where AO having found that during year assessee had made bogus purchases of certain amount added said amount to his income and Tribunal having found that assessee's GP for year under consideration was 7 per cent, adopted GP rate of 8 per cent on purchase and reduced addition, Tribunal was justified. In the case of Simit P. Sheth [2013] 38 taxmann.com 385 (Gujarat), the assessee was engaged in business of trading in steel on wholesale basis. The Assessing Officer having found that some of alleged suppliers of steel to assessee had not supplied steel to assessee but had only provided sale bills, held that purchases made from said parties were bogus. He, accordingly, added entire amount of purchases to gross profit of assessee. The Commissioner (Appeals) having found that assessee had indeed made purchases, though not from named parties but

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other parties from grey market, sustained addition to extent of 30 per cent of purchase cost as probable profit of assessee. The Tribunal however, sustained addition to extent of 12.5 per cent. The High Court held that since purchases were not bogus but were made from parties other than those mentioned in books of account, only profit element embedded in such purchases could be added to assessee's income. Accordingly, the High Court sustained the addition to the extent of 12.5% of the bogus purchases. The case of Bholanath Poly Fab (P.) Ltd. [2013] 40 taxmann.com 494 (Gujarat), the Gujarat High Court held that where assessee did purchase cloth and sell finished goods, but purchasers were not traceable, profit element embedded in purchases would be subjected to tax and not entire amount. In the case of Shoreline Hotel (P.) Ltd. v. Commissioner of Income-tax, Central-I [2018] 98 taxmann.com 234 (Bombay), the High Court held that where on basis of information received from Sales Tax authorities, Assessing Officer found that assessee was beneficiary of bogus purchase bills and assessee could not produce any material purchased by it nor it could ensure presence of supplier, Assessing Officer was unjustified in limiting addition under section 69C on basis of GP ratio. In the case of Vijay Proteins Ltd. v. Income Tax[2015] 58 taxmann.com 44 (Gujarat), the at High Court held that Assessee inflated expenditure by showing higher purchase price through fictitious invoices in name of 33 fictitious parties, Tribunal was justified in disallowing 25 per cent of purchase price. In the case of Vijay Trading Co.

v. ITO 2016] 76 taxmann.com 366 (Gujarat), the High Court held that In respect of bogus purchases, only profit element embedded therein would be subjected to tax. In the case of SPL Infrastructure (P.) Ltd. SPL Infrastructure (P.) Ltd.[2020] 118 taxmann.com 498 (Madras), the

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assessee was a contractor, who carried out the work of road laying in the Thermal Power Plant. The AO made an addition in the hands of assessee on the ground that 14 of the sub-contractors to whom the sub contracts were assigned by assessee/ contractor were not produced before AO upon summons being issued to them and thereupon, disbelieving their existence and the sub contract work carried out by them, the entire payments made to them were disallowed by AO and they were added back to the income of assessee. Tribunal, restricted disallowance to 10% of expenditure incurred towards subcontractors. It was held that a bare perusal of the compared results of the Gross Profit and Net Profit by assessee clearly showed that the Gross Profit at the rate of 14.21% and Net Profit at the rate of 3.83% declared by Assessee, with the addition of 10% agreed by assessee before CIT (Appeals), resulted in a much better result of profits declared by assessee in the present Assessment Year viz., A.Y.2010-11 as compared to the previous years. Therefore, the estimation of profit by Appellate Authorities even on the premise taken by AO that some of the sub contractors could not be produced before AO, did not result in any perversity in the findings of CIT (Appeals) as well as Tribunal. Considering nature of work carried on by assessee, there was no question of not incurring of expenditure by assessee to carry on road work contracts and the work was mentioned in the Measurement book maintained by assessee and counter signed by the sub contractors. However, there was chances of inflating the expenditure for which disallowance of 10% of expenditure claimed was justified and disallowance of entire amount could not be appreciated.

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9.2 Accordingly, in light of the judicial precedents cited above, a certain percentage of such alleged bogus purchases may be disallowed, keeping into consideration the profit offered to tax by the assessee. During the year under consideration, the assessee had calculated NP at 16.09% of the Turnover. Accordingly, considering the observations made by the Ld. Assessing Officer in assessment order regarding the nature of sub-contracting expenses and looking into the totality of facts of the instant case interpreted in light of judicial precedents highlighted above, we are of the view that in the instant set of facts, 10% of the above alleged bogus sub-contracting expenses may be disallowed and added back to the income of the assessee.

10. In the result, appeal of the Revenue is partly allowed.

11. Now we shall discuss Assessee's application under Rule 27 of the Income Tax Appellate Tribunal Rules, 1963 challenging the order of Ld. CIT(Appeals) to the extent it has confirmed the action of the AO for reopening of assessment under section 147 of the Act. We observe that the challenge to the reopening was dismissed by Ld. CIT(Appeals) with the following observations:

"5.1 In the ground No. l of the appeal, the appellant has challenged validity of reassessment on the ground that there is no reason to believe and that it was initiated on the basis of suspicion. The appellant has relied on various judgments which I have carefully considered. However, these judgments were on the peculiar facts of the cases and hence cannot be applied to the instant case of the appellant. In the case of the appellant, it was prima facie belief of the AO that considering the statements of the sub-contractors of the appellant recorded and the fact that the sub-contractors did not maintain proper records of the work carried out for the appellant, the expenses relating to payment to them was required to be properly examined. It is settled law that at the time of formation of

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opinion, the AO need not come to the final conclusion. Detailed examination of the prima facie incriminating facts can be conducted only during the assessment proceedings and the initial findings can be taken to their logical conclusion in the assessment order. Thus the reopening of the cases of the relevant years and the initiation of the reassessment proceedings are therefore not invalid. I am therefore of the considered view that reassessment proceedings which is duly sanctioned as per law by the higher authority is legal and valid. The ground No. l challenging the reopening is therefore rejected."

12. Before us, the counsel for the assessee primarily reiterated the submissions on this aspect made before Ld. CIT(Appeals). The primary contention of the assessee is that the assessment is bad in law as there is no

"reason to believe" as emphasised by section 147 of the Act. The so-called reasons were mere pretence and not supported by any tangible material. Mere "suspicion" cannot be "belief" as held by the Apex court in various judgements. The counsel for the assessee submitted that the AO merely mentioned non-maintenance of records and the sub-contractors unequivocally admitted having done the work for the appellant and thus it is on an irrelevant basis and conjectures that the so-called "reasons" are recorded. The counsel for the assessee submitted that various issues raised by the AO like withdrawal of cash by employees of assessee, filing of returns by sub- contractors under section 44AD of the Act etc. have also been considered by various judicial precedents cited before Ld. CIT(Appeals). In response, DR placed reliance upon the observations made by Ld. CIT(Appeals) in the appellate order.

13. We have heard the rival contentions and perused the material on record. We have perused the reasons for issuance of notice under section 148 of the Act and we observe that from the material before him, the AO formed

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a "belief" that the assessee had incurred bogus sub- contracting expenses. In our view, the AO has given detailed reasonings on the basis of which he formed the belief that in the instant set of facts, the AO was of the view / had reason to believe that the assessee has created bogus sub-contracting expenses and thus income had escaped assessment. It is a well settled principle of law that that while recording the reasons, the AO need not establish the escapement of income. The belief at that time is only prima- facie and not conclusive. In the case of Raymond Woollen Mills Ltd. v. ITO [1999] 236 ITR 34 (SC), the Hon'ble Supreme Court observed that the Court has only to see whether there was prima-facie some material on the basis of which the Department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage. On the scope of re-opening u/s 147 of the Act observed as under:

We have only to see whether there was prima-facie some material on the basis of which the Department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage. We are of the view that the court cannot strike down the reopening of the case in the facts of this case. It will be open to the assessee to prove that the assumption of facts made in the notice was erroneous. The assessee may also prove that no new facts came to the knowledge of the Income-tax Officer after completion of the assessment proceeding. We are not expressing any opinion on the merits of the case. The questions of fact and law are left open to be investigated and decided by the assessing authority. The appellant will be entitled to take all the points before the

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assessing authority. The appeals are dismissed. There will be no order as to costs.

13.1 In the case of Priya Blue Industries (P.) Ltd. v. ACIT [2022] 138 taxmann.com 69 (SC), the AO sought to reopen assessment in case of assessee on count that assessee was beneficiary of certain accommodation. The Assessee challenged impugned notice mainly on ground that jurisdictional facts were not established and hence, revenue could not have assumed jurisdiction and reopened assessment. The ITAT found that exercise of reopening had been made only after due inquiries and recording of statements of concerned persons and on having found prima- facie material, impugned notice had been issued to assessee. The Gujarat High Court held that where Assessing Officer had reason to believe that income chargeable to tax had escaped assessment and basis for formation of such belief were several inquiries and investigation by Investigation Wing that there had been escapement of income of assessee from assessment because of his failure to disclose fully and truly all material facts, reopening of assessment was justified, SLP against said impugned order was liable to be dismissed.

13.2 In the case of Charbhuja Industries P. Ltd. v. Acit [2021] 129 taxmann.com 151 (Gujarat), the Gujarat High Court held that at the time of recording the reason for satisfaction of Assessing Officer, there should be prima- facie some material on the basis of which, the department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage. It will be open to the assessee to prove that the

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assumption of fact made in the notice was erroneous at the time of assessment proceedings.

13.3 In the case of BharatkumarKalubhaiGhadiya [2021] 129 taxmann.com 306 (Gujarat), the High Court observed that only a prima- facie brief is required for re-opening of assessment. The High Court made the following observations in this regard:

5.2 Further, the term "reason to believe", however, is not defined in the Act but it can be gathered and available from the information, leading the Assessing Officer to reopen the assessment. The term itself is suggestive of its prima-facie characteristics and not established or conclusive facts or information. Meaning thereby, it is the Assessing Officer's prima-facie belief, of course, derived from the some material/ information, etc. leading him to reopen the assessment.

13.4 In the case of Purviben Snehalbhai Panchhigar[2019] 101 taxmann.com 393 (Gujarat), the Gujarat High Court held that in the instant case the Assessing Officer has heard the material on record which

would prima- facie suggest that the assessee had sold number of shares of a company which was found to be indulging in providing bogus claim of long- term and short-term capital gain. The company was prima-facie found to be a shell company. The assessee had claimed exemption of long-term capital gain of Rs. 1.33 crores by way of sale of share of such company.

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13.5 This was again affirmed by the Gujarat High Court in the case of

Sanjay Baulal Surana[2021] 129 taxmann.com 375 (Gujarat).

13.6 Accordingly, in our view, the AO had sufficient material to form a prima facie belief that the assessee has engaged in creating bogus sub- contracting expenses in the instant set of facts, thereby leading to escapement of income. Therefore, in the instant set of facts, we find no infirmity in the order of Ld. CIT(Appeals) when he held that issuance of notice under section one 47 of the Act was valid in the instant set of facts.

14. In the result, Assessee's application under Rule 27 of the Income Tax Appellate Tribunal Rules, 1963 challenging the reopening of assessment under section 147 of the Act is hereby dismissed.

Assessment year 2010-11

15. The brief facts for this year are that original return of income for A.Y. 2010-11 was filed declaring total income of Rs.1,09,70,720/- and assessment u/s.143(3) was completed determining total income at Rs.1,10,70,960/-. Pursuant to the survey U/S.133A conducted in the case of the appellant on 18.06.2015 the case was re-opened and notice u/s. 148 was issued. On the facts, similar to the facts for the A.Y. 2009-10, there were payments of Rs.2,11,82,210/- to 10 sub-contractors and after discussing various facts emerging out of the investigations carried out, the AO held that the expense of Rs.2,11,82,210/- was bogus and non-genuine and the impugned assessment was completed determining total income at Rs. 3,22,76,670/-

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16. The Ld. CIT(A) held that from the perusal of the assessment order and the appellant's submissions, it is seen that the facts are similar to those for the A.Y. 2009-10 and the reasoning of the AO for making the additions and the submissions of the appellant challenging those additions are also similar. Under the circumstances, following the decision above for the A.Y. 2009- 10, Ld. CIT(A) dismissed the ground No. 1 challenging the re-opening u/s 147 of the Act and allowed the assessee's ground No. 2 related to disallowance of sub-contractor's expenses and directed the addition to be deleted.

17. Since the facts for assessment year 2010-11 are similar for assessment year 2009-10, following the detailed reasoning given above for assessment year 2009-10, and taking into consideration the observations made by the Ld. Assessing Officer in assessment order regarding the nature of sub- contracting expenses and looking into the totality of facts of the instant case interpreted in light of judicial precedents highlighted above, we are of the view that in the instant set of facts, 10% of the above alleged bogus sub- contracting expenses may be disallowed and added back to the income of the assessee.

18. Further, in light of detailed discussion for assessment year 2009-10, the Assessee's application under Rule 27 of the Income Tax Appellate Tribunal Rules, 1963 challenging the reopening of assessment under section 147 of the Act is hereby dismissed for assessment year 2010-11.

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19. In the result, the appeal of the Revenue is partly allowed for assessment year 2010-11.

Assessment year 2011-12

20. The brief facts for this year are that the original return of income for A.Y. 2011-12 was filed declaring total income of Rs.2,60,15,110/- and assessment u/s. 143(3) was completed determining total income at Rs.2,85,35,510/-. Pursuant to the survey U/S.133A conducted in the case of the appellant on 18.06.2015, the case was re-opened and notice u/s.148 was issued. On the facts similar to the A.Y. 2009-10, there were payments of Rs. 2,55,99,559/- to 8 sub-contractors and after discussing various facts emerging out of the investigations carried out the AO held that the expense of Rs.2,55,99,559/- was bogus and non-genuine and the impugned assessment was completed determining total income at Rs.5,22,47,350/-.

21. The Ld. CIT(A) held that from the perusal of the assessment order and the appellant's submissions, it is seen that the facts are similar to those for the A.Y. 2009-10 and the reasoning of the AO for making the additions and the submissions of the appellant challenging those additions are also similar. Under the circumstances, following the decision above for the A.Y. 2009-10, Ld. CIT(A) dismissed the ground No. 1 challenging the re-opening u/s 147 of the Act and allowed the assessee's ground No. 2 related to disallowance of sub-contractor's expenses and directed the addition to be deleted.

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22. Since the facts for assessment year 2011-12 are similar for assessment year 2009-10, following the detailed reasoning given above for assessment year 2009-10, and taking into consideration the observations made by the Ld. Assessing Officer in assessment order regarding the nature of sub- contracting expenses and looking into the totality of facts of the instant case interpreted in light of judicial precedents highlighted above, we are of the view that in the instant set of facts, 10% of the above alleged bogus sub- contracting expenses may be disallowed and added back to the income of the assessee.

23. Further, in light of detailed discussion for assessment year 2009-10, the Assessee's application under Rule 27 of the Income Tax Appellate Tribunal Rules, 1963 challenging the reopening of assessment under section 147 of the Act is hereby dismissed for assessment year 2011-12.

24. In the result, the appeal of the Revenue is partly allowed for assessment year 2011-12.

Assessment year 2012-13:

25. The brief facts for this year are that original return of income for A.Y. 2012-13 was filed declaring total income of Rs. 3,85,63,670/- and assessment u/s. 143(3) was completed determining total income at Rs. 3,85,99,657/-. Pursuant to the survey U/S.133A conducted in the case of the appellant on 18.06.2015 the case was re-opened and notice u/s.148 was

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issued. On the facts, similar to the A.Y. 2009-10, there were payments of Rs.2,29,18,612/- to 10 sub-contractors and after discussing various facts emerging out of the investigations carried out the AO held that the expense of Rs. 2,29,18,612/- was bogus and non-genuine and the impugned assessment was completed determining total income at Rs.6,15,18,270/-.

26. The Ld. CIT(A) held that from the perusal of the assessment order and the appellant's submissions, it is seen that the facts are similar to those for the A.Y. 2009-10 and the reasoning of the AO for making the additions and the submissions of the appellant challenging those additions are also similar. Under the circumstances, following the decision above for the A.Y. 2009- 10, Ld. CIT(A) dismissed the ground No. 1 challenging the re-opening u/s 147 of the Act and allowed the assessee's ground No. 2 related to disallowance of sub-contractor's expenses and directed the addition to be deleted.

27. Since the facts for assessment year 2012-13 are similar for assessment year 2009-10, following the detailed reasoning given above for assessment year 2009-10, and taking into consideration the observations made by the Ld. Assessing Officer in assessment order regarding the nature of sub- contracting expenses and looking into the totality of facts of the instant case interpreted in light of judicial precedents highlighted above, we are of the view that in the instant set of facts, 10% of the above alleged bogus sub- contracting expenses may be disallowed and added back to the income of the assessee.

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28. Further, in light of detailed discussion for assessment year 2009-10, the Assessee's application under Rule 27 of the Income Tax Appellate Tribunal Rules, 1963 challenging the reopening of assessment under section 147 of the Act is hereby dismissed for assessment year 2012-13.

29. In the result, the appeal of the Revenue is partly allowed for assessment year 2012-13.

Assessment year 2016-17

30. The brief facts of the present year are similar to those noted for assessment years mentioned above. In this year, the assessee however did not challenge re-opening of assessment u/s section 147 of the Act. In appeal against disallowance of sub-contracting expenses, Ld. CIT(A) directed the additions to be deleted on the ground that from the perusal of the assessment order and the appellant's submissions for the A.Y. 2016-17, it is seen that the facts are same as to those for the A.Y. 2009-10 and the reasoning of the AO for making the additions and the submissions of the appellant challenging those additions are also similar. Under the circumstances, Ld. CIT(A), following the decision above for the A.Y. 2009-10 and directed the AO to delete the addition of Rs.1,61,75,302/- made in A.Y. 2016-17 on account of disallowance of sub-contracting expenses.

31. Since the facts for assessment year 2016-17 are similar for assessment year 2009-10, following the detailed reasoning given above for assessment

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year 2009-10, and taking into consideration the observations made by the Ld. Assessing Officer in assessment order regarding the nature of sub- contracting expenses and looking into the totality of facts of the instant case interpreted in light of judicial precedents highlighted above, we are of the view that in the instant set of facts, 10% of the above alleged bogus sub- contracting expenses may be disallowed and added back to the income of the assessee.

32. In the result, appeal of the Revenue is partly allowed for assessment year 2016-17.

33. In the combined result, all the appeals for Assessment Years 2009-10, 2010-11, 2011-12, 2012-13 & 2016-17 filed by Revenue are partly allowed. Order pronounced in the open court on 16-11-2022

Sd/- Sd/-

(WASEEM AHMED) (SIDDHARTHA NAUTIYAL)

ACCOUNTANT MEMBER JUDICIAL MEMBER

Ahmedabad : Dated 16/11/2022 आदेश क  तल प अे षत / Copy of Order Forwarded to:-

1. Assessee

2. Revenue

3. Concerned CIT

4. CIT (A)

5. DR, ITAT, Ahmedabad

6. Guard file.

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By order/आदेश से,

उप/सहायक पंजीकार

आयकर अपीलय अ धकरण,

अहमदाबाद

31