ACIT CIR 17(1), MUMBAI vs. HEERAMANECK & SON, MUMBAI

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ITA 5669/MUM/2018Status: DisposedITAT Mumbai06 February 2020AY 2010-113 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 held that 100% disallowance of bogus purchases is not justified when sales are not doubted, as sales are impossible without purchases. However, considering purchases were made from the grey market, a disallowance that accounts for the gross profit already declared serves the interest of justice.

What were the facts?

The Revenue appealed against the CIT(A)'s deletion of additions for bogus purchases, where the CIT(A) sustained only a 2.75% disallowance. The Assessing Officer had made a 12.5% addition based on information from the sales tax department regarding purchases from bogus dealers.

What were the issues?

The primary issue was the extent of disallowance for bogus purchases when the assessee's sales were not doubted. The secondary issue concerned the justification for a reduced disallowance due to 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, “H” Bench, Mumbai

Before: Shri Shamim Yahya (AM) & Shri Ramlal Negi (JM)

For Respondent: Shri Pankaj Kumar
Hearing: 05.12.2019Pronounced: 06.02.2020

Heard together (2 matters)

I.T.A. No. 5669/Mum/2018
I.T.A. No. 5670/Mum/2018

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

Per Shamim Yahya (AM) :- These are appeals by the Revenue wherein the revenue is aggrieved that the learned CIT-A has deleted the addition of Rs. 6,56,573/- for A.Y. 2010-11 and Rs. 8,79,543/- for A.Y. 2011-12 by sustaining only 2.75% disallowance on account of bogus purchases, vide respective orders for A.Y. 2010-11 & 2011-12.

2.

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 assessing officer in this case has made 12.5% addition on account of bogus purchase amounting to Rs. 841,761/- for A.Y. 2010-11 and Rs. 11,27,619/- for A.Y. 2011-12. The Assessing Officer made the disallowance by referring to information from Sales Tax Department. He did not issue any notice to the suppliers.

3.

Upon assessee's appeal learned CIT-A has noted that the sales have not been doubted. He note that the assessee gross profit declared is already 9.5%.

1.

2 M/s. Heeramaneck & Son Accordingly by placing reliance upon several case laws and up on the facts of the case he sustained 2.75% disallowance out of the bogus purchases.

4.

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

5.

We 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 purchase as reduced by the gross profit already declared serves the interest of justice. Since in the present case Ld CIT(A) has followed this view we do not find any infirmity in his order where he has considered the gross profit already declared and given credit for that.

6.

In the result these appeal filed by the Revenue stand dismissed.

Order has been pronounced in the Court on 6.2.2020.

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