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2017 (10) TMI 781 - AT - Income TaxN.P. determination - Held that - In view of the order of the Coordinate Bench in assessee s own case for the Assessment Year 2008-09, wherein the net profit was estimated at 6% before depreciation, we are of the view that the estimation made by the Ld.CIT(A) @12.5% appears to be reasonable and the Learned Counsel for the assessee also submitted that the percentage adopted by the Ld.CIT(A) at 12.5% be sustained though the addition would result in less than the 12.5% if net profit is adopted at 6%, if followed the order of the Coordinate Bench in assessee s own case.
Issues Involved:
1. Justification of Ld.CIT(A) in restricting the disallowance of non-genuine purchases to 12.5%. 2. Reopening of assessment under section 147 and issuance of notice under section 148. 3. Genuineness of purchases from hawala dealers. 4. Estimation of profit element in non-genuine purchases. Detailed Analysis: 1. Justification of Ld.CIT(A) in restricting the disallowance of non-genuine purchases to 12.5%: The primary issue in the appeal is whether the Ld.CIT(A) was justified in restricting the disallowance of non-genuine purchases to 12.5%. The Revenue contended that the entire amount of purchases should be disallowed as bogus. However, Ld.CIT(A) considered various judicial precedents and concluded that while the purchases were not proven genuine, the entire amount should not be disallowed. Instead, a reasonable profit element should be estimated, which was determined to be 12.5%. This approach aligns with the principle that even if the purchases are bogus, the assessee might have made actual purchases from undisclosed sources, and thus, only the profit element should be added to the income. 2. Reopening of assessment under section 147 and issuance of notice under section 148: The assessment was reopened under section 147 based on information from the investigation wing indicating that the assessee had transactions with parties listed as hawala dealers by the Sales Tax Department. A notice under section 148 was issued to the assessee. The assessee provided ledger accounts, bank statements, and other documents to substantiate the transactions. However, the Assessing Officer (AO) issued notices under section 133(6) to the parties, which were returned unserved, leading to the conclusion that the purchases were non-genuine. 3. Genuineness of purchases from hawala dealers: The AO concluded that the purchases were non-genuine based on the unserved notices and the information from the Sales Tax Department. The assessee argued that the purchases were genuine, supported by ledger accounts, bank statements, and the fact that the dealers had valid TIN numbers at the time of transactions. The Ld.CIT(A) acknowledged the inability of the assessee to substantiate the purchases but did not fully disallow the purchases, instead opting to estimate the profit element. 4. Estimation of profit element in non-genuine purchases: The Ld.CIT(A) estimated the profit element in the non-genuine purchases at 12.5%, based on various judicial precedents and the nature of the assessee's business. The Tribunal upheld this estimation, noting that in a similar case involving the assessee's predecessor, the net profit was estimated at 6% before depreciation. The Tribunal found the 12.5% estimation by Ld.CIT(A) to be reasonable and dismissed the Revenue's appeal. Conclusion: The Tribunal upheld the order of the Ld.CIT(A), which restricted the disallowance of non-genuine purchases to 12.5%, considering it a reasonable estimation of the profit element. The Revenue's appeal was dismissed, and the Tribunal found no reason to interfere with the Ld.CIT(A)'s decision. The judgment emphasizes the importance of a balanced approach in cases of non-genuine purchases, where the entire amount should not be disallowed, but a reasonable profit element should be estimated and added to the income.
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