2019 (4) TMI 1722 - AT - Income Tax

Bogus purchases - purchases have been made from one party in grey market and bills have been obtained from another party i.e. accommodation entry provider - HELD THAT - It is no doubt true that cheques issued by the assessee in the name of M/s. Meet Enterprises had been deposited in the account of M/s. Meet Enterprises, Ghaziabad instead of Meet Enterprises, Haridwar. But the sales made by the assessee have not been doubted by the Assessing Officer. It is impossible to make sales without corresponding purchases. In the stock register corresponding to the sales, purchases have been duly recorded. In the circumstances of no irregularity observed in the inventory record, entire purchases of ₹ 32,76,741/- cannot be disallowed . It would be inappropriate to deny the entire expenditure claimed by the assessee. We are of the opinion that at best it would be a case that purchases have been made from one party in grey market and bills have been obtained from another party i.e. accommodation entry provider. Thus, the purchases themselves cannot be said to be bogus as the same is duly recorded in the books of account of the appellant and such books stands accepted even in the impugned order of assessment. In the instant case, the assessee is engaged in dealing in MS Bar (Iron/Steel Product) and has shown gross profit rate of 5.22%. We find that in the case of Sh. Sanjay H. Shah, Mumbai Vs. Income Tax Officer 2018 (2) TMI 1632 - ITAT MUMBAI who was also engaged in trading of Iron Steel product, the Tribunal restricted the disallowance to 5% of the total alleged bogus purchases - thus we direct the learned Assessing Officer to restrict the disallowance to 5% of the impugned purchase - Appeal of the assessee is partly allowed.

Issues Involved:
1. Legality of initiation of proceedings under Section 147 of the Income Tax Act.
2. Validity of the addition of ?32,76,741/- representing purchases from M/s. Meet Enterprises.
3. Consideration of alternative relief by restricting the addition to the gross profits.
4. Legality of the levy of interest under Section 234B of the Income Tax Act.

Issue-wise Detailed Analysis:

1. Legality of Initiation of Proceedings under Section 147:
The appellant contended that the initiation of proceedings under Section 147 was without jurisdiction as there was no material on record to form a "reason to believe" that income had escaped assessment. The initiation was based on a report from the Investigation Wing without independent application of mind, and there was no valid approval obtained by the Assessing Officer before assuming jurisdiction under Section 147. However, these grounds were not pressed during the appeal and were consequently dismissed.

2. Validity of the Addition of ?32,76,741/- Representing Purchases:
The appellant argued that the purchases from M/s. Meet Enterprises were genuine, supported by documentary evidence such as bills, transportation challans, and payments made through account payee cheques. The Sales Tax Department had accepted the genuineness of the supplier. The Commissioner of Income Tax (Appeals) upheld the addition, citing discrepancies in the supplier's details and the nature of transactions, suggesting they were accommodation entries. The Tribunal noted that the assessee's books were audited and the sales were not doubted by the Assessing Officer. The Tribunal found that the purchases were recorded in the stock register and accepted in the sales tax order. It was concluded that while the payments were made to a different entity, the purchases themselves could not be entirely disallowed. Instead, the disallowance should be restricted to the profit margin embedded in such purchases.

3. Consideration of Alternative Relief:
The Tribunal considered the alternative relief sought by the appellant to restrict the addition to the gross profits on such purchases. Citing various judicial precedents, the Tribunal held that only the profit element embedded in the purchases should be taxed. The Tribunal directed the Assessing Officer to restrict the disallowance to 5% of the impugned purchase amount of ?32,76,741/-, considering the nature of the appellant's business and similar cases where such a rate was applied.

4. Legality of the Levy of Interest under Section 234B:
The ground regarding the levy of interest under Section 234B was deemed consequential in nature and was not adjudicated upon separately.

Conclusion:
The appeal was partly allowed. The Tribunal directed the Assessing Officer to restrict the disallowance to 5% of the impugned purchase amount, recognizing that the entire purchase amount could not be disallowed given the circumstances and evidence presented. The other grounds were either dismissed or deemed consequential. The order was pronounced in the open court on 29th April 2019.

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