ITO - 21(3)(2), MUMBAI vs. LATE VIKAS SUDESH NAGDEV, L/H SUDESH GIRDHARILAL NAGDEV (FATHER), MUMBAI

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ITA 2731/MUM/2019Status: DisposedITAT Mumbai23 November 2020AY 2011-123 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 to sustain only 12.5% disallowance on bogus purchases. It reasoned that when sales are not doubted, a 100% disallowance for purchases is not justified, as sales are impossible without actual purchases.

What were the facts?

The assessee, engaged in retailing readymade garments, faced a 100% addition for bogus purchases based on information from the sales tax department. The CIT(A) reduced this addition to 12.5% after noting that the assessee's sales were not doubted.

What were the issues?

The primary issue was whether 100% disallowance of purchases was justified when sales were not doubted, and if a partial disallowance was appropriate in cases of grey market purchases.

Which sections of the Income-tax Act were involved?

Section 68

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “SMC” Bench, Mumbai

For Appellant: Shri Stayaprakash Singh
For Respondent: Ms. Smita Verma
Hearing: 09.11.2020Pronounced: 23.11.2020

This is an appeal by the revenue wherein the revenue is aggrieved that Learned Commissioner of Income Tax (Appeals) [in short learned CIT(A)] has reduced the addition for bogus purchase of Rs. 9,42,480/- done @ 100% by Assessing Officer by sustaining only 12.5% for the AY 2011-12 vide order dated 1.2.2019.

2.

The assessee in this case is engaged into the business of retailing of readymade garments. The assessment was reopened upon information from sales tax department that assessee has made Rs. 9,42,480/- purchases from bogus dealers, the AO made 100% addition of the bogus purchase.

3.

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.

2 Late Vikas Sudesh Nagdev Legal Heir-Shri Sudesh Girdharilal Nagdev (Father)

4.

Against above order revenue is in appeal before the ITAT. I have heard both the parties 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.

5.

In the result, this appeal filed by the Revenue stands dismissed.

Order pronounced under Rule 34(4) of the ITAT Rules by placing the result on notice board on 23.11.2020.

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