2017 (5) TMI 1263 - AT - Income Tax

Bogus purchases - Addition made on account of purchases from the hawala parties - CIT(A) restricting the addition to 10% of total hawala purchases - GP addition - Held that - Tribunal in assessee s own case said where the assessee had sought copies of statements recorded or any other evidence in respect of such hawala parties, which were not supplied to the assessee, then no addition is warranted in the hands of assessee in respect of said purchases from the said parties. The Assessing Officer had failed to provide the statements or evidence in respect of purchases to the extent of ₹ 41,54,454/-. Accordingly, we hold that no addition is to be made in this regard. However, in respect of the impugned purchases to the extent of ₹ 14,59,082/-, where the copies of statements were provided to the assessee, then addition is to be restricted by applying GP rate of 10% on the said purchases over and above the GP rate shown by the assessee. Accordingly, appeal filed by the assessee is partly allowed

Summary

Issues Involved:
1. Addition on account of non-genuine purchases from hawala parties.
2. Justification of CIT(A)'s decision in imposing a profit margin of 10% on impugned purchases.
3. Deletion of additions made by the Assessing Officer (AO) based on alleged bogus purchases.
4. Non-provision of statements and opportunity for cross-examination to the assessee.
5. Application of Gross Profit (GP) rate on alleged hawala purchases.

Issue-wise Detailed Analysis:

1. Addition on account of non-genuine purchases from hawala parties:
The primary issue revolves around the addition made by the AO on the basis of information received from the Sales Tax Department, which declared certain parties as hawala dealers. The AO treated purchases worth ?56,13,536/- as non-genuine or bogus since the suppliers did not respond to notices under section 133(6) and the assessee could not produce them. The CIT(A), however, considered the evidence provided by the assessee, such as purchase invoices, bank statements, weighbridge receipts, and transportation receipts, and concluded that the purchases might have been made from the grey market, thus applying a 10% GP rate on the total hawala purchases.

2. Justification of CIT(A)'s decision in imposing a profit margin of 10% on impugned purchases:
The CIT(A) justified the imposition of a 10% profit margin on the impugned purchases based on the evidence provided by the assessee. This included purchase invoices, bank statements showing payments by bank cheque, and weighbridge and transportation receipts. The CIT(A) reasoned that the total purchases could not be disallowed since the goods might have been procured from the grey market. The Tribunal upheld this view, noting that the assessee had established the genuineness of the transactions to a significant extent.

3. Deletion of additions made by the AO based on alleged bogus purchases:
The Tribunal found that the AO's addition of ?56,13,536/- was not entirely justified. The AO had failed to provide the assessee with statements or evidence for purchases amounting to ?41,54,454/-, thus violating the principles of natural justice. Consequently, the Tribunal held that no addition should be made for these purchases. However, for the remaining purchases of ?14,59,082/-, where statements were provided, the Tribunal directed the AO to apply a 10% GP rate.

4. Non-provision of statements and opportunity for cross-examination to the assessee:
The Tribunal emphasized the importance of natural justice, noting that the AO had not provided the assessee with statements or evidence for a significant portion of the purchases. This non-provision of documents and denial of the opportunity for cross-examination rendered the addition unwarranted. The Tribunal referenced the Supreme Court decision in M/s. Andaman Timber Industries v. Commissioner of Central Excise, Kolkata-II, which underscored the necessity of providing evidence and the opportunity for cross-examination.

5. Application of Gross Profit (GP) rate on alleged hawala purchases:
The Tribunal upheld the CIT(A)'s decision to apply a 10% GP rate on the alleged hawala purchases. This decision was based on the evidence provided by the assessee, which demonstrated the genuineness of the transactions to a significant extent. The Tribunal noted that the assessee had furnished purchase bills, delivery challans, weighbridge receipts, and other relevant documents, and had also revised its VAT returns to withdraw the set-off claim, thus establishing the factum of purchases.

Conclusion:
The Tribunal's judgment reflects a balanced approach, recognizing the need for evidence and the principles of natural justice while addressing the complexities of transactions involving alleged hawala purchases. The decision to apply a 10% GP rate on the impugned purchases, where evidence was provided, and to disallow additions where evidence was not furnished, underscores the importance of fair adjudication in tax matters. The appeals of different assessees were partly allowed, and the appeals of the Revenue were dismissed.