SMT. PRITI JAYESH GANDHI,MUMBAI vs. INCOME TAX OFFICER-27(2)(5), MUMBAI

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ITA 5119/MUM/2018Status: DisposedITAT Mumbai03 December 2019AY 2010-113 pages
AI SummaryPartly Allowed

What did the Tribunal hold?

The Tribunal held that 100% disallowance for bogus purchases is not justified when sales are not doubted, as sales are impossible without purchases. The profit element in such purchases should be limited to the gross profit rate of genuine purchases.

What were the facts?

The assessee, engaged in chemical trading, faced reopening of assessment due to information about bogus purchases. While payments were made through banking channels and sales were not doubted, the suppliers were not produced. The Assessing Officer made a 12.5% addition on account of bogus purchases.

What were the issues?

Whether 100% disallowance of bogus purchases is justified when sales are not doubted, and how to quantify the profit element in such 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

Before: Shri Mahavir Singh & Shri Shamim YahyaSmt. Priti Jayesh Gandhi

For Appellant: Ms. Ruchi Rathod
For Respondent: Shri Akhtar H. Ansari
Hearing: 19.09.2019Pronounced: 03.12.2019

This appeal filed by Revenue is directed against the order of the CIT(A)-25, Mumbai dated 15.06.2018 and it relates to A.Y. 2010-11.

2.

The assessee is aggrieved that the Learned CIT(A) has erred in sustaining 12.5% percent disallowance on account of bogus purchases, vide order dated 15.06.208.

3.

The brief facts of the case are that assessee in this case is engaged in the business of trading in chemicals and solvents. 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 Income Tax Officer in this case has made 12.5% percent addition on account of bogus purchases resulting in disallowance of `5,46,716/-. Upon assessee’s

Smt. Priti Jayesh Gandhi appeal the learned CIT(A) confirmed the same. Against this order assessee is in appeal before the ITAT.

4.

We have heard both the counsel and perused the records. Up on careful consideration we find that assessee has provided the documentary evidence for the purchase. Adverse inference has been drawn due to the inability of the assessee to produce the suppliers. 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 Hon’ble Jurisdictional High Court decision in the case of Nikunj Eximp Enterprises (in Writ Petition No 2860, order dated 18.6.2014). In this case the Hon’ble 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.

5.

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, the learned counsel of the assessee submitted that as held by Hon’ble High Court of Bombay in its recent judgement in the case of Principle Commissioner of Income Tax vs. M Haji Adam & Co. (ITA No. 1004 of 2016 dated 11.02.2019 in paragraph 8 there off) the addition in respect of bogus purchases is to be limited to the extent of bringing the gross profit rate on such purchases at the same rate as of other genuine purchases.

6.

We respectfully following the aforesaid judgement of the Hon’ble High Court set aside the matter to the file of the Assessing Officer with the direction to restrict the addition as regards the bogus purchases by bringing the gross profit rate on such bogus purchases at the same rate as Smt. Priti Jayesh Gandhi that of the other genuine purchases. Needless to add, the assessee should be granted adequate opportunity of being heard.

7.

In the result assessee's appeal is partly allowed.

Order pronounced in the open court on 3rd December, 2019.

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