GANPAT METALS PVT. LTD.,MUMBAI vs. ITO 5 (1)(2), MUMBAI
What did the Tribunal hold?
The Tribunal held that only the profit embedded in bogus purchases should be taxed, not the entire amount. It reduced the estimated Gross Profit from 12.5% to 6% on such purchases.
What were the facts?
The assessee, a metal trader, obtained bogus purchase bills from hawala operators. The Assessing Officer estimated Gross Profit at 12.5% on these purchases and made an addition. The CIT(A) confirmed the addition.
What were the issues?
Whether the entire bogus purchases should be added to income, or only the profit embedded therein. Whether the estimation of profit by the AO was reasonable.
Which sections of the Income-tax Act were involved?
Section 143(3),Section 147,Section 148,Section 271(1)(c),Section 234A,Section 234B,Section 234C,Section 234D
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, MUMBAI BENCH “SMC”, MUMBAI
Before: SHRI VIKAS AWASTHY
अपीलाथ) -ारा/ Appellant by : None *ितवाद, -ारा/Respondent by : Ms. Smita Verma सुनवाई क. ितिथ/ Date of hearing : 04/05/2021 घोषणा क. ितिथ/ Date of pronouncement : 10/06/2021 आदेश/ ORDER PER VIKAS AWASTHY, J.M: This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-10, Mumbai [hereinafter referred to as ‘the CIT(A)’] dated 29.07.2019 for the Assessment Year (AY) 2009-10.
आअसं. 6427/मुं/2019 (िन.व.2009-10) (A.Y.2009-10)
The brief facts of the case as emanating from records are: The assessee is a trader in ferrous and non-ferrous metal. Assessment in the case of assessee for AY 2009-10 was re-opened on the basis of information received from the Sales Tax Department, Government of Maharashtra. As per the information received, assessee has obtained bogus purchase bills aggregating to Rs. 84,38,977/- from six dealers declared as hawala operators. The Assessing Officer (AO) issued notice under section 133(6) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) to the said dealers on the addresses furnished by the assessee. The notices were received back unserved from the postal authorities. No transport receipts, inward register and stock register, etc. were produced by the assessee to prove trail of goods. The AO estimated Gross Profit (GP) at 12.5% on bogus purchases and made addition of Rs. 10,54,872/-.
Aggrieved by the assessment order dated 27.03.2015 passed under section 143(3) read with section 147 of the Act, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of assesseee and confirmed the addition. Hence, the present appeal by assessee.
Ms. Smita Verma representing the Department vehemently defended the impugned order and prayed for dismissing the appeal of assessee. The ld. DR submitted that the assessee has failed to prove genuineness of the purchases and the dealers. The AO and CIT(A) have been fair and reasonably in estimating profit embedded in non-genuine purchases.
आअसं. 6427/मुं/2019 (िन.व.2009-10) (A.Y.2009-10)
Submissions made by ld. DR heard, orders of authorities below examined. Undisputedly, the assessee has failed to discharge its onus in proving genuineness of purchases from alleged hawala dealers. Under such circumstances, entire alleged bogus purchases cannot be added. It is only the profit embedded in such transactions that has to be brought to tax. The assessee is a trader in ferrous and non-ferrous metals. Generally, the GP in such business is ranges between 5% to 8%. Estimation of GP at 12.5% by AO/CIT(A) is on higher side. The estimation of GP at 6% on bogus purchase would meet the ends of justice. The impugned order is modified accordingly. The ground no. 3 & 4 of appeal are partly allowed in the aforesaid terms.
In ground no. 1 & 2 of appeal, the assessee has assailed re-opening of assessment under section 148 of the Act. The assessee had assailed re-opening of assessment before the CIT(A), as well but remained unsuccessful. I find no reason to interfere with the findings of CIT(A), hence, the same are upheld. Consequently, ground no. 1 & 2 of the appeal are dismissed.
The assessee in appeal has also assailed initiation of penalty under section 271(1)(c) of the Act. Challenge to the penalty proceeding at this stage is premature, therefore, ground no.5 of the appeal is dismissed.
In ground no.6 of appeal, the assessee has challenged charging of interest under section 234A, 234B, 234C & 234D of the Act. Charging of interest is mandatory and consequential, hence, this ground is without any merit, ergo, dismissed.
आअसं. 6427/मुं/2019 (िन.व.2009-10) (A.Y.2009-10)
In the result, appeal of the assessee is partly allowed.
Order pronounced in the open court on Thursday, the 10th day of June, 2021. Sd/- (VIKAS AWASTHY) �याियक सद�य / JUDICIAL MEMBER मुंबई/Mumbai, 3दनांक/Dated: 10/06/2021 SK, PS *ितिल�प अ4े�षत *ितिल�प अ4े�षतCopy of the Order forwarded to : *ितिल�प अ4े�षत *ितिल�प अ4े�षत 1. अपीलाथ)/The Appellant , 2. *ितवाद,/ The Respondent. 3. आयकर आयु5(अ)/ The CIT(A)- 4. आयकर आयु5 CIT 5. �वभागीय *ितिनिध, आय.अपी.अिध., मुबंई/DR, ITAT, Mumbai 6. गाड9 फाइल/Guard file.
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