INCOME TAX OFFICER 32(3)(1), MUMBAI vs. RAJESH MADHUKAR INGALE, MUMBAI

O R D E R PER C.N. PRASAD (JM) 1. This appeal is filed by the revenue against the order of the Learned Commissioner of Income Tax (Appeals) – 44, Mumbai [hereinafter in short “Ld.CIT(A)”] dated 20.12.2018 for the Assessment Year 2009-10.

(A.Y: 2009-10) Shri Rajesh Madhukar Ingale appreciating the fact that the Sales Tax Department has proved beyond doubt that the parties declared as hawala trader were involved in providing accommodation entry of purchases and the assessee was one of the beneficiary of accepting accommodation for the purchase.' 2. "On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in not appreciating the ratio of the decision of Gujarat High Court in the case of N.K. Protiens Ltd. Wherein it was confirmed that in the event of bogus purchases, the addition on the whole of such purchase was required to be made and this particular ratio was confirmed by the Hon'ble Supreme Court in SLP No. CC No.769 of 2017 dated 16.01.2017, by dismissing the SLP of that assessee,' 3. "The appellant prays that the order of the Ld CIT (A) on the above grounds be set aside and that of the AO be restored".

4. Assessing Officer treated the purchases as non-genuine and he was of the opinion 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. Assessing Officer observed that notice issued u/s. 133(6) of the Act to the parties and no reply has been received from the parties confirming the transaction entered with the assessee and the assessee has not produced the party before the Assessing Officer. Therefore, Assessing Officer treated entire purchases of ₹.1,74,998/- as non-genuine and added to the income of the assessee. On appeal the Ld.CIT(A) considering the evidences and various submissions of the assessee restricted the disallowance to the extent 25% of the non-genuine purchases.

(A.Y: 2009-10) Shri Rajesh Madhukar Ingale 6. Heard both the parties, perused the orders of the authorities below. On a perusal of the order of the Ld.CIT(A), we find that the Ld.CIT(A) considered this aspect of the matter elaborately with reference to the submissions of the assessee and the averments in the Assessment Order, referring to various decisions of the Coordinate Benches and also the decision of the Assessing Officer in assessee’s own case for the A.Y.2010-11 restricted the disallowance to 25% of the non-genuine purchases while estimating the profit element @25%, the Ld.CIT(A) observed as under: - “8.4.7. The facts and circumstances of the present appeal remain same as that of in the appellant's own case for AY 2010-11, i.e. therein also the assessment was reopened after receiving information from the DGIT (Investigation) and Sales Tax Department that the appellant is beneficiary of bogus purchase bills issued by certain parties. In fact one of the parties M/s Garima Steel Traders is involved in both the assessment years. In AY 2010-11, the Ld. AO has not disallowed/added the entire amount of bogus purchases, but has disallowed/added only profit element embedded therein @ 25%. Apparently, the appellant has also accepted the said disallowance/addition made in. AY 2010-11. In the assessment year under consideration also the Ld. AO has not doubted the genuineness of sale effected and has taxed the same as such. The Ld. AO has not even rejected the books of the appellant as he did in appellant's own case for AY 2010-11. In view of the facts and circumstances, which remain similar as that of in appellant's own case for AY 2010-11 wherein the Ld. AO has disallowed 25% or purchases held to be bogus by him, I am of the considered opinion that in the present assessment year the Ld. AO was not justified in disallowing/adding the entire bogus purchases, as held by him. I am also in agreement with the finding of the Ld. AO in appellant's own case for AY 2010-11 that in such cases, the profit element embedded in obtaining such bills need to be taxed. Since, in AY 2010-11, the Ld. AO has disallowed 25% of such bogus purchases as held by him and apparently the appellant has also accepted the same, so in the (A.Y: 2009-10) Shri Rajesh Madhukar Ingale assessment year under consideration, the Ld. AO is directed to restrict the disallowance/addition to the extent of 25% of bogus purchases held by him. Hence, the disallowance/addition to the extent of Rs. 43,7507- (being 25% of Rs. 1,74,998/-) is CONFIRMED and balance disallowance/addition of Rs.l,31,248/- (Rs.1,74,998 - Rs. 43,750) is DELETED. Accordingly, the Ground Nos. 3 to 6 raised in appeal are PARTLY ALLOWED.”

Order pronounced in the open court on the 13th March, 2020