ASHWIN CHIMANLAL DOMADIA,MUMBAI vs. ITO 32(1)(2), MUMBAI

Brief facts of the case are that assessee in this case is engaged in the business of trading of goods. 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 channel. However the suppliers were not produced before the assessing officer. Sales in this case were not doubted. The Assessing Officer did not even issue any notice to the alleged bogus suppliers. The income tax officer in this case has made 12.5% addition on account of bogus purchase resulting in disallowance of Rs. 6,13,451/-.

Upon assessee’s appeal learned CIT(A) confirmed the same. He did not accept the assessee’s plea that the assessee has already shown sufficient gross profit and hence the disallowance should be restricted to 5%.

Against above order assessee is in appeal before the ITAT. I have heard learned Departmental Representative and perused the records.

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 before learned CIT(A) 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.

Upon careful consideration I find considerable cogency in the above submissions. Accordingly I direct that disallowance in this case be restricted to 5% of the bogus purchases.

In the result the appeal stands partly allowed. Order pronounced under Rule 34(4) of the ITAT Rules on 28.9.2020.