MAFATLAL H. BOTHRA,MUMBAI vs. ITO 19(2)(3), MUMBAI

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ITA 4388/MUM/2018Status: DisposedITAT Mumbai24 July 2019AY 2009-104 pages
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What did the Tribunal hold?

The Tribunal found the 12.5% profit rate to be on the higher side, considering the business nature and VAT paid on bogus purchases. It directed the AO to recompute the income by applying a profit rate of 5% on the bogus purchases.

What were the facts?

The assessee, engaged in trading ferrous and non-ferrous metals, made purchases from parties identified as 'hawala' dealers by the Sales Tax Department. The AO added 12.5% of these bogus purchases to the assessee's income, which was confirmed by the CIT(A).

What were the issues?

The primary issue was the estimation of profit rate on bogus purchases and whether the rate confirmed by the lower authorities was justified.

Which sections of the Income-tax Act were involved?

Section 143(3),Section 147

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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI

Before: SRI MAHAVIR SINGH

For Appellant: Shri Rajkumar Singh/, Ms. Aditi Shroff, ARs
Hearing: 26.06.2019Pronounced: 24.07.2019

AadoSa / O R D E R महावीर स ुंह, न्याययक दस्य/ PER MAHAVIR SINGH, JM:

This appeal of the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-30, Mumbai [in short CIT(A)], in Appeal No. CIT(A)-30/19(2)(3)/570/2015-16 vide order dated 26.04.2018. The Assessment was framed by the Income Tax Officer, Ward 19(2)(3) Mumbai (in short ‘ITO/ AO’) for the A.Y. 2009-10 vide order dated 2 27.02.2015 under section 143(3) read with section 147 of the Income Tax Act, 1961 (hereinafter ‘the Act’).

2.

The only issue in on merits, in this appeal of assessee is against the order of CIT(A) confirming the action of the AO in estimating the profit rate at 12.5% of the bogus purchases.

3.

Briefly stated facts are that the assessee is engaged in the business of ferrous and non-ferrous metals. The AO received information from DGIT (Investigation), who in turn received information from Sales Tax Department, Mumbai that the assessee has made purchases from hawala parties, as listed in hawala dealers by the Maharashtra Sales Tax Department who are providing bogus bills of purchase amounting to Rs.33,15,621/- as admitted by these hawala dealers in their deposition before the authorities. The same reads as under: - Name Amount Advance Steelage 2,19,314 Roopam Impex 4,03,738 Tyson Steel and Tubes 3,35,400 P. Ltd. Vighneswar impex 3,97,812 Shanti Pipes & Tubes 9,71,893 Osian Steel Impex 9,97,464 Total 33,15,621 4. During the course of assessment proceedings and during appellate proceedings, the assessee submitted documentary evidences such as payment received against such sales, receipt of material purchases, account payee cheque. According to the AO, the assessee failed to establish the genuineness of the purchase and accordingly, he made addition of unproved purchase at 12.5% of ₹ 4,14,453/- to the returned income of the assessee. Aggrieved, assessee preferred the appeal before CIT(A), who confirmed the action of the AO by observing in para 7 3 by following the decision of Hon’ble Gujarat High Court in the case of CIT vs. Smith P. Seth (2013) 356 ITR 451 (Guj) by observing as under:

“7. The Ground No. 2 of the appeal is about addition made by the AO by treating 12.5% of the non genuine purchases as income of the appellant. During the course of appellate proceedings, even after being given opportunity on various dates with sufficient time to comply, appellant did not furnish any submissions to present the case, hence it is assumed that appellant has no explanation to offer or to furnish any evidence/ detail in support of this ground of appeal

. Therefore, the only choice left is to agree with the decision of the AO to estimate the profit @12.5% of the total non genuine purchases of Rs. 33,15,621/- relying on the decision of Hon'ble Gujarat High Court in the case of CIT vs. Simit Sheth (2013)

38. Taxmann.com 385 (Gu)). Accordingly Ground No. 2 of the appeal is treated as 'Dismissed'.”

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