DAMRARAM KHETARAMJI PRAJAPATI,MUMBAI vs. ITO 19 (1)(4), MUMBAI

The assessee in this case is engaged into trading in ferrous and non- ferrous metal. The assessment was reopened upon information from sales tax department that assessee has made Rs. 17,79,080/- purchases from bogus entry operator. The AO made 12.5% addition of the bogus purchase.

Up on assessee's appeal learned CIT(A) has noted that the sales has not been doubted. Accordingly placing reliance upon several case laws and upon the facts of the case he sustained 12.5% disallowance out of the bogus purchases.

Against above order revenue is in appeal before the ITAT. I have heard Learned Departmental Representative and perused the record. I find that in this case the sales have not been doubted it is settled law that when sales are not doubted, hundred percent disallowance for bogus purchase cannot be done. The rationale being no sales is possible without actual purchases. This proposition is supported from Honourable Jurisdictional High Court decision in the case of Nikunj Eximp Enterprises (in writ petition no 2860, order dt 18.6.2014). In this case the Honourable High Court has held that hundred percent allowance for the purchases said to be bogus cannot be done, when sales are not doubted. However the facts of the present case indicate that assessee has made purchase from the grey market. Making purchases through the grey market gives the assessee savings on account of nonpayment of tax and others at the expense of the exchequer. In such situation in our considered opinion on the facts and circumstances of the case the 12.5% disallowance out of the bogus purchases done by learned CIT(A) meets the end of justice. Accordingly I uphold the order of learned CIT(A).

In the result, appeal filed by the assessee stands dismissed.