2017 (8) TMI 847 - AT - Income Tax

Additions towards bogus purchases - parties have not responded to the notice u/s 133(6) - information received from Investigation Wing of Income-tax Department - non actual delivery of goods - Reopening of assessment - Held that - We find that a similar issue has been arisen for our consideration in the case of M/s Fagioli India Pvt Ltd 2017 (8) TMI 747 - ITAT MUMBAI under similar circumstances has considered the issue and after analysing the facts of the case and also by relying upon certain judicial precedents has directed the AO to estimate net profit at 12.5% on alleged bogus purchases. Thus we direct the AO to estimate net profit at 12.5% on the alleged bogus purchases. Appeal filed by the assessee is partly allowed

Summary

Issues:
Validity of reopening of assessment under section 147, legality of assessment framed on the legal heir, addition towards bogus purchases under section 69C.

Validity of Reopening of Assessment under Section 147:
The case involved cross appeals by the assessee and revenue against the order of the CIT(A)-40, Mumbai for the assessment year 2009-10. The AO had reopened the assessment under section 147 based on information received from the DGIT (Investigation) regarding purchases made from parties listed as hawala operators by the Maharashtra Sales-tax Department. The legal heir of the assessee contended that the purchases were genuine, supported by proper bills and payment through banking channels. The AO, however, made additions towards total purchases from the parties, deeming them as bogus. The CIT(A) relied on case laws and directed the AO to estimate profit at 15% on the alleged bogus purchases. The assessee challenged the validity of reopening of assessment under section 147, but later withdrew the challenge during the hearing. The Tribunal dismissed the challenge, and the main issue for consideration became the addition towards bogus purchases under section 69C.

Addition towards Bogus Purchases under Section 69C:
The Tribunal analyzed the facts where the AO disallowed purchases from certain parties based on information from the Sales-tax Department, as the parties did not respond to notices and were suspected of providing accommodation entries without actual delivery of goods. The assessee failed to prove the purchases with necessary evidence, despite furnishing purchase bills and payment details. The Tribunal considered a similar case and directed the AO to estimate net profit at 12.5% on alleged bogus purchases, stating that purchases from such parties cannot be accepted as genuine. The Tribunal emphasized that only the profit element embedded in such purchases should be taxed, not the entire purchases. It highlighted that various courts and tribunals upheld estimation of net profit ranging from 12.5% to 25% in similar cases. The Tribunal, in line with consistent decisions, upheld the estimation of 12.5% profit on the alleged bogus purchases in the present case, leading to a partial allowance of the assessee's appeal and dismissal of the revenue's appeal.

In conclusion, the Tribunal dismissed the challenge to the validity of reopening of assessment under section 147 and upheld the estimation of 12.5% net profit on the alleged bogus purchases, resulting in the partial allowance of the assessee's appeal and the dismissal of the revenue's appeal.