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Income Tax Appellate Tribunal, “SMC” Bench, Mumbai
This is an appeal by the revenue wherein the revenue is aggrieved that the learned CIT-A has reduced the addition of Rs. 28,68,000/- by sustaining only 12.5 % disallowance on account of bogus purchases, vide order dated 21.1.2019 pertaining to A.Y. 2009-10.
The assessee in this case is engaged into trading business. The assessment was reopened upon information from sales tax department that assessee has made purchases from bogus dealers. The assessee did not file return of income nor responded to any of the notices of the Assessing Officer. The AO made an ex part order making 1OO% addition of the bogus purchase.
Upon assessee's appeal learned CIT-A has noted that the sales has not been doubted. Accordingly placing reliance upon several case laws and up on 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 Id Dr 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 upheld hundred percent allowance for the purchases said to be bogus 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 non-payment 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 the learned CIT-A meets the end of justice. Accordingly I uphold the order of learned CIT-A.
In the result this appeal filed by the revenue stands dismissed
Before partying I add that if the assessee has filed a cross appeal or cross objection and the same has remained unheard, either party may apply for recall of this order so that the appeals can be heard together.
Order pronounced on 14.9.2020.