ITO 28 (2)(2), MUMBAI vs. M/S MEETH INDUSTRIES, MUMBAI

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ITA 7294/MUM/2019Status: DisposedITAT Mumbai19 May 2021AY 2009-103 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal upheld the CIT(A)'s decision, following a coordinate bench's order in a similar case. It reasoned that when sales are not doubted, 100% disallowance for bogus purchases is not justified, as purchases are necessary for sales. The 12.5% disallowance was deemed to meet the ends of justice.

What were the facts?

The Assessing Officer appealed against the CIT(A)'s decision to restrict the addition of bogus purchases to 12.5% instead of 20%. The AO argued that the suppliers were proven accommodation entry providers and cited a Supreme Court decision allowing 100% addition.

What were the issues?

Whether the addition for bogus purchases should be restricted to 12.5% or 20% when sales are not doubted. Whether a Supreme Court decision allowing 100% addition is applicable in this case.

Which sections of the Income-tax Act were involved?

Section 143(3),Section 147

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, MUMBAI ‘SMC’ BENCH, MUMBAI

M/s. Meeth Industries ....……………….Respondent R-434, MIDC, TTC Industrial Area, Thane, Belapur Road, Rabale, Navi Mumbai 400701 [PAN: AAPFM4500N] Appearances: Sunil Deshpande for the appellant None for the respondent Date of concluding the hearing: : May 12, 2021 Date of pronouncement : May 19, 2021 O R D E R Per Pramod Kumar, VP:

1.

By way of this appeal, the Assessing Officer has challenged the correctness of the order dated 16th September 2019, passed by the learned CIT(A) in the matter of assessment u/s. 143(3) r.w.s 147 of the Income Tax Act, 1961 for the assessment year 2009-10.

2.

Grievances raised by the Assessing Officer are as follows: (1) "Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in directing the A.O. to restrict the addition of bogus purchases to 12.5% as against 20% of total bogus purchases made by the Assessing Officer without appreciating the fact that parties from whom these purchases were made proven accommodation entry providers, as concluded by Sales Tax Authorities pursuant to the investigation carried out by them"? (2) "Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in not considering the latest Apex Court decision in the case of N.K.Proteins Ltd Vs DCIT (769 OF 2017) , wherein the Hon'ble Supreme Court has confirmed 100% addition made on account of bogus purchases ?

Assessment Year: 2009-10 Page 2 of 3

3.

I find that a coordinate bench of this tribunal, in the case of Rollon Hardware India Pvt. Ltd., in order dated 05.11.2018, has in similar facts and circumstances inter alia, observed as follows: 4. In support of his case Ld. counsel of the assessee has placed reliance upon the decision of Hon’ble Gujarat High Court in the case of Pr. CIT Vs. T.R. Kapadia in Tax Appeal No.691 of 2017. 5. In this case the Hon’ble High Court has confirmed the deletion of disallowance on account of alleged bogus purchase as necessary documentary evidence for the purchase were on record. 6. The special leave petition against this order has been dismissed by the Hon’ble Supreme Court in its decision dated. 04.05.2018 S.L.P. Civil Diary No.12670/2018. 7. Up on careful consideration, I find that assessee has provided the documentary evidence for the purchase. Adverse inference have been drawn due to the inability of the assessee to produce the suppliers. 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 rational being no sales is possible without actual purchases. This proposition is supported from Hon’ble Jurisdictional High Court decision in the case of Nikunj eximp enterprises (in writ petition no. 2860, order dt. 18.06.2014. In this case the Hon’ble High Court has upheld hundred percent allowance for the purchases said to be bogus when sales are not doubted. However, in that case all the suppliers were government agency. In the present case the facts of the case indicate that assessee has made purchase from the grey market. Making purchases through the grey market gives the assessee savings on account of non-payment of tax and others at the expenses of the exchequer. In such situation in my considered opinion on the facts and circumstances of the case the 12.5% disallowance out of the bogus purchases meets the end of justice. However, in this regard Ld. counsel of the assesse has prayed that when only the profits earned by the assessee on these bogus purchase transaction is to be taxed the gross profit already shown by the assessee and offered to tax should be reduced from the standard 12.5% being directed to be disallowed on account of bogus purchase.

4.

I see no reasons to take any other view of the matter than the view so taken by the coordinate bench. Respectfully following the coordinate bench order, I confirm action of the CIT(A) and decline to interfere in the matter.

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