M/S OM SAI TRADERS,MUMBAI vs. ITO WARD 3(1), MUMBAI

^ 6023/Mum/2024 Om Sai Traders 2. The assessee is aggrieved by levy of penalty of Rs.2,89,272/- for the A.Y.2010-11; and Rs.2,07,177/- for the A.Y.2011-12 levied on account of estimated GP rate on alleged bogus purchases. In the assessment order passed by the ld. AO, has treated the entire purchases of Rs.74,89,235/- as bogus and added to the income of the assessee for A.Y.2010-11; and Rs.64,93,318/- for A.Y.2011-12.

In the quantum proceedings from the stage of the Tribunal, the addition has been restricted to by applying the GP rate of 12.5% on the alleged bogus purchases as was applied by the ld. CIT (A). Now penalty has been levied on such application of GP rate of 12.5% by the ld. AO holding that assessee has failed to establish that the material has been purchased from the parties and had actually been used for its business.

After hearing both the parties and on perusal of the material placed on record, we find that the source of purchases made from the alleged hawala parties are from the books and corresponding sales from such purchases has not been disturbed. Once the purchases are reflected in the trading account and addition has been made by applying some higher GP rate of 12.5% on alleged bogus purchases and that to be on estimated basis, then no penalty can be levied u/s.271(1)(c). Further, in A.Y. 2009-10 it has been stated that on similar application of GP rate on bogus purchases, penalty initiated by the ld. AO was has dropped by him. In any case, it cannot be a case of furnishing of inaccurate particulars of income as held by ^ 6023/Mum/2024 Om Sai Traders the ld. AO, because all the particulars of purchases have been shown in the books alongwith corresponding sale. Accordingly, penalty levied by the ld. AO and sustained by the ld. CIT (A) is deleted in both the appeals.

In the result, both the appeals of the assessee are allowed. Order pronounced on 9th January,2025.