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2022 (6) TMI 1347 - AT - Income TaxReopening of assessment u/s 147 - bogus purchases - HELD THAT - As decided in assessee own case 2017 (9) TMI 181 - ITAT DELHI as relying on Unique Metal Industries 2015 (10) TMI 2753 - ITAT NEW DELHI case we observe that the AO had recorded similarly worded reasons and name of the parties form whom the assessee alleged to have made bogus purchases were also same except the amount mentioned therein in the reasons recorded in the tabular form, as in the case of the present assessee. We, therefore, respectfully following the above hold that the initiation of reassessment proceedings as well as issuance of notice u/s. 148 of the Act was not valid and the same was void ab initio. Addition of bogus purchases @ 20% - Estimating profit @ 20%) by taking into consideration the or visions of section 40A(3) will not lead to determination of correct real income. Section 40A(3) is meant for a different purpose when the assessee has made purchases in cash. This provision cannot be applied in such cases. Once the purchases are held to be bogus then the trading results declared by the assessee cannot be accepted and right course in such case is to reject books of accounts and profit has to be estimated by applying a comparative profit rate in the same trade. Though there can be a little guess work in estimating profit rate but such profit rate cannot be punitive. Thus respectfully following the decision of the Tribunal in the case of Unique Metal Industries (supra), whereby the addition of 20% of the purchases sustained by the Ld. CIT(A) has been deleted in the identical facts and circumstances of the case, are not inclined to sustain the similar addition in the instant case. Appeal of the assessee is allowed.
Issues:
1. Validity of reassessment proceedings and order passed by CIT(A). 2. Addition of amount on account of purchases treated as bogus. 3. Confirmation of addition by CIT(A) based on firms not engaged in actual business. 4. Allegation of not making purchases despite tallying quantity purchased and sold. 5. Addition sustained despite material and evidence provided by the assessee. 6. Addition made without providing opportunity for cross-examination. 7. Applicability of previous Tribunal decisions on similar cases. Issue 1: Validity of reassessment proceedings and order passed by CIT(A): The appeal challenges the order of the Ld. CIT(A) dated 11.08.2020 for the assessment year 2007-08. The appellant contests the legality and factual basis of the CIT(A)'s decision. The grounds of appeal question the compliance with statutory conditions and procedures in initiating the reassessment proceedings. The appellant argues that the reasons recorded for issuing the notice under section 148 are legally flawed and contrary to facts. Additionally, the appellant challenges the validity of the reassessment order, claiming it was based on vague reasons without proper application of mind by the Assessing Officer (AO). Issue 2: Addition of amount on account of purchases treated as bogus: The AO made an addition of Rs. 19,61,168 on account of alleged bogus purchases made by the assessee from specific trading companies. The Ld. CIT(A) partially allowed the appeal, sustaining 20% of the additions while deleting the rest. The appellant challenges this decision, specifically contesting the addition of Rs. 4,90,292 treated as bogus purchases under section 69C of the Income Tax Act. The appellant argues that the addition was arbitrary at 25% of total purchases and lacked a proper basis. Issue 3: Confirmation of addition by CIT(A) based on firms not engaged in actual business: The CIT(A) confirmed the addition by asserting that the firms from which purchases were made were not engaged in actual business. The appellant disputes this conclusion, presenting evidence from a search on these firms showing substantial inventory related to the purchased material. The appellant contends that the inference drawn by the AO solely based on the statement of these firms not being in actual business is unfounded and contradicts the factual record. Issue 4: Allegation of not making purchases despite tallying quantity purchased and sold: The appellant challenges the rejection of their contention by the CIT(A) regarding the allegation of not making purchases. The appellant highlights that the quantity purchased and sold completely matched, indicating that the allegation of non-purchase by the assessee is unsustainable. Despite the tallying of quantities, the CIT(A) upheld the addition, which the appellant argues is unjustified. Issue 5: Addition sustained despite material and evidence provided by the assessee: The appellant presented material and evidence before the AO to demonstrate that the purchases and sales were conducted in the regular course of business. However, the CIT(A confirmed the addition on account of bogus purchases, disregarding the evidence provided by the assessee. The appellant contends that the addition should be deleted based on the material submitted and the regular business operations shown. Issue 6: Addition made without providing opportunity for cross-examination: The appellant contests the addition made by the AO, arguing that it was untenable in law as the opportunity for cross-examination was not provided. The appellant asserts that the allegations against them were based on a statement without the chance to cross-examine the person providing the statement. This lack of procedural fairness, according to the appellant, violates the principles of natural justice. Issue 7: Applicability of previous Tribunal decisions on similar cases: The appellant relies on previous Tribunal decisions in similar cases involving comparable reasons, arguments, and findings. The appellant cites various cases where the Tribunal ruled in favor of the assessee based on identical issues. By referencing these precedents, the appellant seeks to establish that the addition made by the AO and upheld by the CIT(A) should be deleted. The Tribunal, after considering the arguments, directs the AO to delete the impugned addition based on the precedent set by previous decisions. This summary provides a detailed analysis of the legal judgment, covering all the issues involved and the arguments presented by the appellant in challenging the CIT(A)'s decision.
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