2014 (9) TMI 654 - AT - Income Tax

Addition of bogus purchase Held that - The AO observed that inquiry was conducted by the department in case of M/s. Prakash Marbles Engineering Company, Dabhoi Road, Baroda for A.Y. 2002-03 - bogus purchase by way of accommodation bills for purchase of material without, in actually, any material being purchased, were procured from Shri Jabbarsingh Chauhan, Proprietor of M/s. Girnar Sales Corporation and Shri Navin Raval, Proprietor of M/s. Shiv Metal Corporation - During the course of inquiry, it was also found by the AO that apart from issuing bogus bills to M/s. Prakash Marbles Engineering Co, the parties through their fictitious concerns had issued such bogus bills to various parties in the market and one of them being General Mechanical Works, who had sought these accommodations bogus bills from Shri Navin Raval, claimed to be the proprietor of fictitious firm, M/s. Girnar Sales Corporation during the accounting period relevant to the AY 2002-03. These are the bogus purchases to the extent of ₹ 14,32,750 relying upon ITO vs. Shri Gumanmal Misrimal 2011 (1) TMI 1284 - ITAT AHMEDABAD - assessee had not proved the purchase genuine - The supplier had already given affidavits that they have given bogus bills to the assessee - Therefore, burden is heavily on the assessee to prove that these transactions are genuine, which has not been discharged by it - the net profit @ 30% on bogus purchase is reasonable - The A.O. is directed to calculate 30% net profit on bogus purchase and compute the income Decided partly in favour of assessee.

Summary

Issues Involved:
1. Condonation of delay in filing the appeal.
2. Reopening of assessment under sections 147 and 148.
3. Addition to income based on alleged bogus purchases.
4. Initiation of penalty proceedings under section 271(1)(c).

Issue-wise Detailed Analysis:

1. Condonation of Delay in Filing the Appeal:
The assessee filed an appeal delayed by 316 days, citing reasons such as the order being misplaced and not reaching the concerned person of the company. The assessee relied on the decision in the case of Jayvantsinh N Vaghela vs. ITO, where a delay of 328 and 158 days was condoned. The Senior Departmental Representative (DR) opposed the condonation, referencing the Supreme Court's decision in Vedabai alias Vaijayanatabai Baburao Patil vs. Shantaram Baburao Patil, emphasizing a pragmatic approach and distinguishing between inordinate delays and delays of a few days. After considering both sides, the Tribunal condoned the delay.

2. Reopening of Assessment Under Sections 147 and 148:
The first and second grounds of appeal against reopening the case under sections 147 and 148 were not pressed by the assessee and were dismissed as not pressed.

3. Addition to Income Based on Alleged Bogus Purchases:
The Assessing Officer (AO) observed that the assessee had made bogus purchases from M/s. Girnar Sales Corporation and M/s. Shiv Metal Corporation, whose proprietors admitted to issuing accommodation bills without actual material being supplied. The AO added Rs. 14,32,750 to the assessee's income, stating the assessee failed to prove the genuineness of the purchases.

The Commissioner of Income Tax (Appeals) [CIT(A)] confirmed the addition, noting the appellant could not provide evidence of genuine purchases from the said parties. The CIT(A) emphasized the onus was on the appellant to prove the genuineness of the purchases, which was not done.

Upon further appeal, the Tribunal noted that similar cases had resulted in profit additions of 12.5% and 30% on bogus purchases. The Tribunal referred to the case of ITO vs. Shri Gumanmal Misrimal, where a 30% net profit rate on bogus purchases was upheld. The Tribunal concluded that the assessee had not proved the purchases genuine, and the suppliers had admitted to issuing bogus bills. Therefore, the Tribunal directed the AO to calculate a 30% net profit on the bogus purchases and compute the income accordingly.

4. Initiation of Penalty Proceedings Under Section 271(1)(c):
Ground no.5 regarding the initiation of penalty proceedings under section 271(1)(c) was consequential to the findings on the bogus purchases.

Conclusion:
The appeal was partly allowed, with the Tribunal directing the AO to calculate 30% net profit on the bogus purchases and compute the income accordingly. The order was pronounced in open court on 14/03/2014.