WESTERN INDIA MARINE MILLS & ENGINEERS,MUMBAI vs. INCOME TAX OFFICER, WARD 17(3)(5), MUMBAI

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ITA 4844/MUM/2018Status: DisposedITAT Mumbai18 November 2019AY 2010-113 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that when sales are not doubted, a 100% disallowance for bogus purchases is not justified. It directed that the disallowance should be restricted to 12.5% of the bogus purchases, reduced by the gross profit already declared. Since the assessee had declared a gross profit of 14.97%, no further disallowance was warranted.

What were the facts?

The assessee, engaged in dealing with material handling equipment, faced a reopening of assessment due to information about bogus purchases. While the assessee provided purchase vouchers and made payments through banking channels, suppliers were not produced. The Assessing Officer made an addition on account of these purchases.

What were the issues?

Whether disallowance of entire purchases is justified when sales are not doubted and whether the profit element in bogus purchases should be considered for disallowance.

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 Shamim Yahya (AM)

For Appellant: Shri Idris Karchiwala
For Respondent: Shri Chaitanay Anjaria
Hearing: 22.08.2019Pronounced: 18.11.2019

This is an appeal by the assessee is directed against the order of learned CIT-A dated 19.6.2018 and pertains to A.Y. 2010-11.

2.

The issue raised is that learned CIT(A) erred in sustaining disallowance of Rs. 6,25,985/- being 14.97% of non genuine purchases.

3.

Brief facts of the case are that assessee in this case is engaged in the business of dealing in wire ropes, chains, pulley block and other material handling equipment. 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.

4.

The income tax officer in this case has made 14.97% addition on account of bogus purchase resulting in disallowance of Rs. 6,25,985 . Upon assessee’s appeal Id CIT- A confirmed the same.

2 Western India Marine Mills & Engineers 5. Against above order assessee is in appeal before the ITAT. I have heard both the counsel and perused the records.

6.

Upon careful consideration I 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. 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 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.

7.

Upon careful consideration I find considerable cogency in the above submissions. Accordingly I direct that disallowance in this case be restricted to 12.5% of the bogus purchase as reduced by the gross profit already declared by the assessee. Since the assessee has already declared 14.97% gross profit no disallowance is called for.

3 Western India Marine Mills & Engineers 8. In the result, assessee’s appeal is allowed. Order has been pronounced in the Court on 18.11.2019.

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