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Income Tax Appellate Tribunal, “SMC” Bench, Mumbai
Before: Shri Shamim Yahya (AM)
O R D E R This is an appeal by the assessee wherein the assessee is aggrieved that the learned CIT-A has erred in sustaining 100% disallowance on account of bogus purchases.
Brief facts of the case are that assessee is engaged in the business of construction. Information was received from the sales tax Department that assessee has that in bogus purchases. The Assessment was accordingly reopened. The assessing officer in this case has made 100% addition on account of bogus purchase amounting to Rs.8,19,339/-.
Upon assessee’s appeal Ld CIT(A) confirmed the same. Against above order assessee is in appeal before the ITAT.
I have heard learned Departmental Representative and perused the records. None appeared on behalf of the assessee despite notice.
Upon on careful consideration, I find that assessee has provided the documentary evidence for the purchase. Adverse inference has been drawn
2 Vasant Construction Co.(I) 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 assessee is in construction business. 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. In such situation in my considered opinion on the facts and circumstances of the case the 12.5 % disallowance out of the bogus purchases meets the end of justice. Hence, I direct that disallowance be restricted to 12.5% of the bogus purchases.
In the result, this appeal filed by the assessee stands partly allowed. Order has been pronounced in the Court on 29.7.2019.