JITENDRA M KOTHARI,MUMBAI vs. INCOME TAX OFFICER 18(3)(2), MUMBAI

It is noted that the appeal has been filed with a delay 571 days, the condonation of which has been sought by the assessee vide condonation petition as supported by the affidavit of the assessee. Upon perusal, it is noted that the delay has been attributed to the adverse medical conditions being faced by the assessee’s son during the relevant period of time. Keeping in view the principles laid down by Hon’ble Apex Court in 167 ITR 471 (SC) Collector, Land Acquisition Vs. Katiji, the bench formed an opinion that the assessee deserve condonation of delay and accordingly, we proceed to dispose-off the appeal on merits. 3.1 Facts in brief are that the assessee being resident individual stated to be engaged as electrical work contactor under proprietorship concern namely M/s Ambica Service Centre was assessed u/s 143(3) r.w.s.147 for impugned AY on 25/03/2014 wherein the assessee was saddled with addition of Rs.45.38 Lacs on account of alleged bogus purchases. The original return of income filed by the assessee was processed u/s 143(1). 3.2 The reassessment proceedings got triggered pursuant to receipt of certain information from Sales Tax Department, Maharashtra wherein it transpired that the assessee stood beneficiary of accommodation purchase bills aggregating to Rs.45.38 Lacs from 3 suspicious entities, the details of which have already been extracted in para 1 of the quantum assessment order. Accordingly, the case was reopened u/s 147 by issuance of notice u/s 148 on 13/03/2013 which was followed by statutory notices u/s 143(2) & 142(1) wherein the assessee was directed to substantiate the aforesaid purchases.

3.3 Although the assessee defended the purchases made by him, however, notices issued u/s 133(6) to all the entities to confirm the transactions, were returned back unserved by the postal authorities. The inquiries also revealed that TIN (VAT registration nos.) of the suppliers was not active on the date of purchases made by the assessee. The assessee failed to produce any of the supplier to confirm the transactions. Resultantly, the aforesaid purchases were treated as non-genuine purchases and accordingly, added to the income of the assessee.

Although the assessee preferred appeal against the same, however, assessee’s failure to attend the appellate proceedings led to confirmation of stand of Ld. AO. Aggrieved, the assessee is in further appeal before us.

The Ld. Authorized Representative for Assessee [AR] pleaded to restrict the impugned addition to 24.65%, being gross profit rate declared by the assessee for the impugned AY as done by Ld. first appellate authority, in identical circumstances, for AYs 2009-10 & 2010-11. The Ld. DR placed reliance on the decision of Hon’ble Gujarat High Court rendered in N.K.Proteins Ltd. Vs. CIT [2016-TIOL-3165-HC-AHM-IT] to submit that full additions were justified.

We have carefully heard the rival submissions and perused relevant material on record and deliberated on judicial announcements cited before us. We find that assessee was in possession of primary purchase documents and the payments to the suppliers was through banking channels. We are of the considered opinion that there could be no sale without actual purchase of material keeping in view the assessee’s nature of business activities. At the same time, notices u/s 133(6) did no elicit any satisfactory response and the assessee failed to produce even a single supplier to confirm the purchase transactions. Therefore, in such a situation, the addition, which could be made, was to account for profit element embedded in these purchase transactions to factorize for profit earned by assessee against possible purchase of material in the grey market and undue benefit of VAT against such bogus purchases. Keeping in view the decision of Ld. first appellate authority in AYs 2009-10 & 2010- 11, we restrict the impugned additions to 24.65% of alleged bogus purchases of Rs.45,38,073/- which comes to Rs.11,18,635/-. The balance additions stand deleted.

Our aforesaid view is in line with the recent decision of Hon’ble Bombay High Court rendered in bunch of appeals titled as Pr.CIT Vs. M/s Mohommad Haji Adam & Co. [ITA No.1004 & others of 2016, dated 11/02/2019] wherein Hon’ble Court distinguishing the cited case law of Hon’ble Gujarat High Court rendered in N.K. Industries Ltd. Vs Dy. C.I.T. in Tax Appeal No. 240 of 2003 and connected appeals decided on 20th June, 2016 observed as under: - 8. In the present case, as noted above, the assessee was a trader of fabrics. The A.O. found three entities who were indulging in bogus billing activities. A.O. found that the purchases made by the assessee from these entities were bogus. This being a finding of fact, we have proceeded on such basis. Despite this, the question arises whether the Revenue is correct in contending that the entire purchase amount should be added by way of assessee's additional income or the assessee is correct in contending that such logic cannot be applied. The finding of the CIT(A) and the Tribunal would suggest that the department had not disputed the assessee's sales. There was no discrepancy between the purchases shown by the assessee and the sales declared. That being the position, the Tribunal was correct in coming to the conclusion that the purchases cannot be rejected without disturbing the sales in case of a trader. The Tribunal, therefore, correctly restricted the additions limited to the extent of bringing the G.P. rate on purchases at the same rate of other genuine purchases. The decision of the Gujarat High Court in the case of N.K. Industries Ltd. (supra) cannot be applied without

Resultantly, the appeal stands partly allowed. Order pronounced in the open court on 16/05/2019.