RAMESH D JAIN HUF,MUMBAI vs. ITO 19 (3)(1), MUMBAI

O R D E R PER C.N. PRASAD (JM) 1. This appeal is filed by the assessee against order of the Learned Commissioner of Income Tax (Appeals)–6, Mumbai [hereinafter in short “Ld.CIT(A)”] dated 26.04.2019 for the A.Y. 2009-10 in confirming the addition of ₹.5,72,603/- being 12.5% of the alleged non-genuine purchases.

(A.Y. 2009-10) M/s. Ramesh D. Jain (HUF) 2. Briefly stated the facts are that, assessee an individual engaged in the business of ferrous and non-ferrous metals filed return of income on 30.09.2009 declaring income of ₹.2,98,580/- for the A.Y.2009-10 and the return was processed u/s. 143(1) of the Act. Subsequently, Assessing Officer received information from the DGIT(Inv.,), Mumbai about the accommodation entries provided by various dealers and assessee was also one of the beneficiary from those dealers. The assessment was reopened U/s. 147 of the Act based on the information received from DGIT (Inv.,), Mumbai, that the assessee has availed accommodation entries from various dealers who are said to be providing accommodation entries without there being transportation of any goods. In the reassessment proceedings, the assessee was required to prove the genuineness of the purchases made from various dealers as referred in Assessment Order. In response assessee furnished copies of purchase bills, ledger details and bank statements and submitted that the purchases made are genuine. Assessee further submitted that the payments are made through account payee cheques as such contended that all the purchases are genuine. However, parties were not produced before the Assessing Officer.

(A.Y. 2009-10) M/s. Ramesh D. Jain (HUF) that assessee had obtained only accommodation entries without there being any transportation of materials and the assessee might have made purchases in the gray market. It is the finding of the Assessing Officer that assessee failed to produce the parties and as such the purchases to the extent made from the parties are remained unverifiable. Assessing Officer observed that the notices issued u/s. 133(6) of the Act to the parties are returned unserved with a remark “not known/left” and the assessee has not produced the parties before the Assessing Officer. Therefore, Assessing Officer treated ₹.11,45,207/- being 25% of the total non-genuine purchases of ₹.45,80,827/- for the A.Y. 2009-10 as non- genuine. On appeal the Ld.CIT(A) considering the evidences and various submissions of the assessee restricted the addition to 12.5% of the alleged bogus purchases.

(A.Y. 2009-10) M/s. Ramesh D. Jain (HUF) 6. Heard both sides, perused the orders of the authorities below. It is not in dispute that sales have been accepted as genuine from out of these purchases. When the sales have been accepted as genuine the entire purchases cannot be treated as non-genuine. The Hon'ble Gujarat High Court in the case of Bholanath Polyfab Pvt. Ltd [355 ITR 290] held that when the assessee made purchases and sold the finished goods as a natural corollary not the entire amount covered under such purchases would be subject to tax but only the profit element embedded therein. Similar view has been taken by the Hon'ble Gujarat High Court in the case of CIT v. Simit P. Seth [38 taxman.com 385]. Simply because the parties were not produced the entire purchases cannot be added as held by the Bombay High Court in the case of CIT v. Nikunj Eximp [216 Taxman.com 171]. I agree with the view of the lower authorities that there should be an estimation of profit element from these purchases and should be estimated reasonably as the assessee could not conclusively prove that the purchases made are from the parties as claimed, especially in the absence of any confirmations from them. Taking the totality of facts and circumstances, keeping in view the nature of business of the assessee i.e. trader in iron and steel, it would be justified if the profit element embedded in those purchases are estimated at 4%. Accordingly, I direct

(A.Y. 2009-10) M/s. Ramesh D. Jain (HUF) the Assessing Officer to estimate the profit element from the non-genuine purchases at 4% and restrict the disallowance of purchases to 4% and compute the income accordingly.

Order pronounced on 03.02.2021 as per Rule 34(4) of ITAT Rules by placing the pronouncement list in the notice board