VAIBHAV DIPAK SHAH,MUMBAI vs. DY CIT, CENTRAL CIRCLE-2(3), MUMBAI
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Income Tax Appellate Tribunal, “F” BENCH, MUMBAI
per the purchase invoices and also that the said parties have not paid any sales tax on the
bills raised on the assessee. The A.O. held that the bills issued by these suppliers were not
genuine and that the assessee has failed to produce any documentary evidence to prove
the genuineness of the purchase. The A.O. also relied on the assessee’s statement
recorded u/s.131 of the Act and concluded that the assessee has taken accommodation
entry for the purpose of inflating its expenses. The A.O. relied on various decisions to
show that the assessee has not discharged its primary onus to establish the genuineness of
the purchase and that mere payment by account payee cheque is not the only criteria to
4 ITA No. 964/Mum/2022 (A.Y. 2012-13) Vaibhav Dipak Shah vs. Dy. CIT prove genuinity. The A.O. applied peak credit theory and made an addition of the
impugned amount of Rs.1,32,45,297/- u/s. 69C of the Act.
The ld. CIT(A) upheld the addition made by the A.O. and rejected the assessee’s
contention that in the earlier years for A.Ys. 2008-09, 2009-10, 2010-11 and 2011-12, the
Tribunal has made an addition of 5% on the bogus purchase which according to the ld.
CIT(A) was not applicable in the present case as the A.O. for this impugned year has not
considered 30% of the profit like in earlier years and has rather made the addition on
peak credit of the bogus purchases. The ld. CIT(A) distinguished the earlier tribunal’s
order from this present appeal and upheld the action of the A.O. The ld. CIT(A) also
relied on the statement of the assessee recorded u/s. 131 of the Act where the assessee is
said to have admitted as being beneficiary of accommodation entries. The ld. CIT(A)
relied on the decision of the Hon'ble Apex Court in the case of CIT vs. Durgaprasad
More [1971] 82 ITR 540 (SC) and Sumati Dayal vs. CIT [1995] 214 ITR 801 (SC) and
held that apparent was not real in assessee’s case where the register was itself considered
to be bogus. The ld. CIT(A) has also not considered the retraction statement of the
assessee vide Affidavit dated 22.03.2013 and thereby upheld the addition made by the
A.O.
The learned Authorised Representative (ld. AR for short) for the assessee
contended that the Tribunal on identical facts had made disallowance @ 5% on the bogus
purchase and on no change in the facts, prayed that the same may be applicable for the
impugned year. The ld. AR further stated that the lower authorities have not disputed the
sales of the assessee and for that reason the corresponding purchases should also be
5 ITA No. 964/Mum/2022 (A.Y. 2012-13) Vaibhav Dipak Shah vs. Dy. CIT considered. The ld. AR further stated that the purchase and sales were duly supported by
the quantitative details furnished by the assessee and that the said transactions were
carried out by proper banking channel. The ld. AR contended that the A.O. made an
addition merely on the basis of the information from the Sales Tax Department and that
the A.O. has failed to enquire and investigate, into the alleged bogus entities. The ld. AR
further stated that peak credit theory was not to be applied in assessee’s case and relied
on the decision of the Tribunal in assessee’s case for earlier years.
The learned Departmental Representative (ld. DR for short) for the Revenue, on
the other hand, controverted the same and distinguished the tribunal’s decision in earlier
years for the reason that the A.O. had made addition on 30% of the gross profit which
was restricted to 5% by the Tribunal for the previous years, whereas the impugned year
the A.O. has made addition on peak credit and that the said decision of the Tribunal
would not be applicable for this impugned year. The ld. DR relied on the decision of the
lower authorities.
We have heard the rival submissions and perused the materials available on
record. It is evident that on identical facts for A.Ys. 2208-09 to 2011-12, the tribunal by
relying on the various decisions has held that for the nature of business carried out by the
assessee, it is pertinent to estimate the profit @ 5% on the disputed purchases and had
thereby directed the A.O. to make addition on 5% of the bogus purchases transacted by
the assessee with the hawala parties. On perusal of the said decision, it is pertinent to
point out that the facts of the said appeals are identical to that of the impugned year,
except for the fact that the transactions was with different hawala party for the relevant
6 ITA No. 964/Mum/2022 (A.Y. 2012-13) Vaibhav Dipak Shah vs. Dy. CIT years, other than that we do not find any change in the circumstances pertaining to facts
during the impugned year. We also find no justification in the action of the A.O. in
applying peak credit theory for the purpose of making addition on bogus purchase. There
is also no doubt in the purchases alleged to be bogus where neither the A.O. nor the ld.
CIT(A) has disputed the corresponding sales made by the assessee. In the failure of
identifying bogus sales, the purchases made by the assessee may be at best made from
grey market from alleged bogus entities. The lower authorities have failed to substantiate
if there was any latent or patent defect in the books of the assessee. There was no
justification about the sales made by the assessee as to whether the same was genuine or
sham transaction. As a necessary corollary since the corresponding sales was not said to
be bogus, the purchases cannot also be held as ‘bogus’ except for the reason that the said
purchases was made from bogus entities. We would like to place our reliance on the
decision of Hon'ble Jurisdictional High Court in the case of Pr. CIT vs. Nitin Ramdeoji
Lohia [2022] 145 taxmann.com 546 (Bom) for the said proposition.
From the above observation and by respectfully following the above mentioned
decisions, we are of the considered view that the addition should be restricted to 5% of
the alleged bogus purchase and the A.O. is directed to estimate the profit at 5% on the
bogus purchase. Hence, ground no. 2 & 3 are decided as above.
Ground nos. 4 & 5 pertains to the deduction of the claim u/s. 80D & 80G of the
Act. It is observed that the A.O. has not made any discussion as to the said disallowance
and the ld. CIT(A) has remanded this issue back to the A.O. for considering the
assessee’s claim subject to verification of the facts. We do not find any infirmity in the
7 ITA No. 964/Mum/2022 (A.Y. 2012-13) Vaibhav Dipak Shah vs. Dy. CIT order of the ld. CIT(A) in remanding this issue back to the A.O. for adjudicating the issue
on the facts of the case. Hence, these two grounds may be remanded back to the A.O. for
considering the claim of the assessee on the merits of the case. Hence, ground nos. 4 & 5
are allowed for statistical purposes.
In the result, the appeal filed by the assessee is partly allowed.
Order pronounced in the open court on 09.03.2023
Sd/- Sd/-
(S. Rifaur Rahman) (Kavitha Rajagopal) Accountant Member Judicial Member Mumbai; Dated : 09.03.2023 Roshani, Sr. PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT(A) 4. CIT - concerned 5. DR, ITAT, Mumbai 6. Guard File BY ORDER,
(Dy./Asstt. Registrar) ITAT, Mumbai
