ITO 28(1)(3), MUMBAI vs. M/S COMPUTER WORLD, MUMBAI

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ITA 2147/MUM/2019Status: DisposedITAT Mumbai08 October 2020AY 2009-103 pages
AI SummaryPartly Allowed

What did the Tribunal hold?

The Tribunal held that a 100% disallowance for bogus purchases is not justified when sales are not doubted, as sales are impossible without purchases. However, purchases from the grey market imply a profit element. Therefore, the disallowance should be restricted to 12.5% of the bogus purchases, reduced by the gross profit already declared by the assessee.

What were the facts?

The assessee, engaged in trading computer parts, faced a reopening of assessment based on information about bogus purchases. While the assessee provided purchase vouchers and made payments through banking channels, the suppliers were not produced. The Assessing Officer made a 100% addition for bogus purchases, which the CIT(A) reduced to 12.5%.

What were the issues?

Whether 100% disallowance of purchases is justified when sales are not doubted and what is the appropriate profit element to be considered in case of grey market purchases.

Which sections of the Income-tax Act were involved?

Section 68

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Income Tax Appellate Tribunal, “SMC” Bench, Mumbai

For Appellant: Shri Kalpesh Turalkar
For Respondent: Shri Somnath Wajale
Hearing: 08.10.2020Pronounced: 08.10.2020

Heard together (2 matters)

I.T.A. No. 2147/Mum/2019
C.O. No. 46/Mum/2020

Read from the judgment's own cause title. This page is filed under one of them.

This is an appeal by the Revenue and cross objection by the assessee, wherein they are aggrieved that the learned Commissioner of Income Tax (Appeals) [in short learned CIT(A)] has erred in sustaining 12.5% disallowance on account of bogus purchases, vide order dated 25.1.2019 pertaining to assessment year 2009-10.

2.

Brief facts of the case are that assessee in this case is engaged in the business of trading in computer parts and peripherals. The Assessment in this case was reopened upon receipt of information from the sales tax Department that assessee has made bogus purchases. The assessee submitted the purchase vouchers and the payments were made through banking

2 M/s. Computer World channel. However the suppliers were not produced before the assessing officer. Sales in this case were not doubted. The income tax officer in this case has made 100% addition on account of bogus purchase resulting in disallowance of Rs. 18,92,775/-.

3.

Upon assessee’s appeal learned CIT(A) reduced the same to 12.5%.

4.

Against above order Revenue is in appeal before the ITAT and assessee has filed cross objection. I have heard both the counsel and perused the records.

5.

Upon careful consideration I find that assessee has provided the documentary evidence for the purchase. Adverse inferences 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 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 in that case all the supplies were to 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 expense of the exchequer. As regards the quantification of the profit element embedded in making of such bogus/unsubstantiated purchases by the assessee, I find that it is the submission of the learned counsel of the assessee that it will be doubled prejudice if the gross profit already declared is not reduced from the standard 12.5% being disallowed on account of bogus purchases.

3 M/s. Computer World

6.

Upon careful consideration I find considerable cogency in the above submissions. Accordingly I direct that disallowance in this case be restricted to 12.5% of the bogus purchase as reduced by the gross profit already declared by the assessee. Learned counsel of the assessee fairly agreed to the above

7.

In the result, Revenue’s appeal stands dismissed and assessee’s cross objection is partly allowed.

Order pronounced under Rule 34(4) of the ITAT Rules on 08.10.2020.

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