ITO WD 2(2), KALYAN vs. K MANYAR, ULHASNAGAR

This appeal has been filed by the revenue against order dated 07/07/2016 passed by the Ld. Commissioner of Income Tax (Appeals)-3, Thane, pertaining to the Assessment Year 2011-12, whereby the Ld. CIT (A) has partly allowed the appeal filed by the assessee against assessment order passed/s 143(3) read with section 147 of the Income Tax Act, 1961 (for short ‘the Act’).

Brief facts of the case are that the assessee Karta, HUF a trader in ply- wood, filed its return of income for the assessment year under consideration declaring total income of Rs.2,89,090/-. The return was processed u/s 143(1) of the Act.

Subsequently, on the basis of information received from the Sales Tax Department regarding bogus purchases made by various companies including the present assessee from hawala entities which used to issue bogus bills without selling any goods, the assessment was re-opened u/s 147 of the Act. The assessee was one of the companies, which had made bogus purchases from one of the said entities. As per the information, the assessee company during the year relevant to the assessment year under consideration made bogus purchases to the tune of Rs. 72,15,465/- from such entities, Victor Intertrade Private Ltd.

In response to the notice u/s 148 of the Act the authorized representative appeared before the AO and submitted that the original return filed u/s 139(1) of the Act may be treated as return of income in response to the said notice. The assessee objected the re-opening, however, the assessee’s objection was rejected. During the re-assessment proceedings, the assessee could not establish the genuineness of the transaction. Accordingly, show cause notice was issued as to why the amount of bogus purchases should not be added to the income of the assessee. The assessee submitted that the purchases were genuinely made through broker and the goods were directly delivered at the doorstep in own vehicles. The assessee further submitted that the payments were made to the parties through banking channels. To substantiate its claim, the assessee submitted copy of audit report, copies of purchase invoices and details of assets purchased copy of bank statements etc. The assessee however, failed to produce confirmation from the party concerned and evidence to establish consumption of goods, delivery challans stock register to prove the genuineness of the transaction. The assessee also failed to produce the party before AO. Since, the assessee could not satisfy the AO by producing sufficient evidence that the transactions were genuineness, the AO made addition of Rs. 72,15,465/- to the income of the assessee and determined the total income of the assessee at Rs75,04,550/-.

Feeling aggrieved, the assessee challenged the assessment order before the Ld. CIT (A). The Ld. CIT (A) after hearing the assessee partly allowed the appeal and restricted the addition to 15% of the bogus purchases made by the AO. The revenue has raised the following effective grounds of appeal against the impugned order passed by the Ld. CIT (A):-

We have heard the rival submissions and perused the entire record and also gone through the cases relied upon by the authorities below as well as referred before us. The only grievance of the revenue is that the Ld. CIT (A) has wrongly restricted the addition made by the assessee to 15%. We notice that the AO has not rejected the books of account and accepted the sales shown by the assessee. Since, the AO has not rejected the sales shown during the relevant year, the entire amount of purchases cannot be added to the income of the assessee as there cannot be sale without any purchase. If the assessee had not purchased the goods in question from the parties concerned, it implies that purchases were made from the parties other than those mentioned in the books of account. Hence, there is no justification in making addition of the entire amount of bogus purchases determined by the AO. Under these circumstances, the AO ought to have made addition keeping in view the profit element embedded in the purchases in question.

The Hon’ble Bombay High Court In CIT Vs. Nikunj Eximp Enterprises Pvt. Ltd. 372 ITR 619 (Bom), while upholding the decision of Mumbai Tribunal, has observed that merely because the suppliers had not appeared before the Assessing Officer or the CIT (A) one could not conclude that the purchases were not made by the respondent/assessee. The Hon’ble Gujrat High Court in CIT vs. Simit P. Seth 356 ITR 451(Guj) upheld the decision of the Tribunal and sustained the addition 12.5% of the total bogus purchases holding that only profit element embedded in such purchases can be added to income of the assessee. Hence, following the principles law laid down by the Hon’ble High Courts of Bombay and Gujarat, discussed above, we dismiss all the grounds of appeal of the revenue and uphold the order of the Ld. CIT(A) and direct the AO to make addition @ 15% of the total amount of bogus purchases to the income of the assessee.