2019 (2) TMI 1320 - AT - Income Tax

Unexplained expenditure u/s 69C - bogus purchases - addition towards estimated profit from the project @7% on total expenditure incurred for the year and debited to the P&L Account - HELD THAT - There is no error in the findings recorded by the CIT(A) while scaling down addition made by the AO towards alleged bogus purchases and restricting 20% profit on such alleged bogus purchases. Hence, we are inclined to uphold the findings of CIT(A) and reject ground taken by the revenue. See COMMISSIONER OF INCOME-TAX-I VERSUS SIMIT P SHETH 2013 (10) TMI 1028 - GUJARAT HIGH COURT Disallowance of interest paid on unsecured loan and excluded from work-in-progress - AO has excluded interest paid on unsecured loan on the ground that the total unsecured loan on which interest has been paid, has been treated as unexplained cash credit u/s 68 of and also consequent interest expenditure is reduced from work-in-progress - CIT(A) deleted addition - HELD THAT - This is a recurring issue which is emanating from AY 2009-10. AO, initially made addition towards unsecured loan taken from certain parties u/s 68. CIT(A) has deleted addition made by the AO on the basis of additional evidence filed by the assessee towards unsecured loan taken from 23 parties and confirmed unsecured loan taken from 12 parties. CIT(A) also directed the AO to work out interest components of genuine loans as well as loans which were confirmed has unexplained credits. CIT(A) has, by following his predecessor s order, directed the AO to examine the claim of the assessee in light of additional evidence and also keeping in view findings recorded by the CIT(A) for AY 2009-10. Revenue has not challenged the findings of CIT(A) in deleting addition made by the AO towards unexplained loan for AY 2009-10. Since the issue is recurring from AY 2009-10 and which has a cascading effect on addition made by the AO towards interest disallowance for the year under consideration, we find that there is no error in the findings recorded by the Ld.CIT(A) and directing the AO to examine the claim of the assessee in the light of evidence filed by the assessee and also keeping in mind the findings recorded by the Ld.CIT(A) for AY 2009-10. - Decided against revenue

Issues Involved:

1. Deletion of addition of ?16,32,196/-.
2. Genuineness of purchases and failure to produce hawala parties.
3. Nature of secondary evidence and lack of primary evidence.
4. Purchases made out of undisclosed income.
5. Sustaining addition only to the extent of 20% of bogus purchases.
6. Excluding interest paid on unsecured loans from work-in-progress.

Issue-wise Detailed Analysis:

1. Deletion of Addition of ?16,32,196/-:
The revenue challenged the deletion of the addition of ?16,32,196/- by the CIT(A). The Assessing Officer (AO) had added this amount as unexplained expenditure under Section 69C of the Income Tax Act, 1961, citing bogus purchases from suspicious dealers. The CIT(A) scaled down the addition by estimating a 20% profit on alleged bogus purchases, following the precedent set in the assessee's own case for AY 2008-09. The Tribunal upheld the CIT(A)'s decision, noting that the issue was covered in favor of the assessee by previous ITAT decisions and the Gujarat High Court ruling in CIT vs. Simit P Sheth.

2. Genuineness of Purchases and Failure to Produce Hawala Parties:
The AO raised concerns about the genuineness of purchases, as the assessee failed to produce the hawala parties for examination. The CIT(A) found that non-compliance with notices under Section 133(6) alone could not justify treating the entire purchases as bogus. The CIT(A) emphasized that the goods were used in the business, making complete disallowance illogical. The Tribunal concurred, stating that only the profit element embedded in such purchases should be taxed, not the entire purchase amount.

3. Nature of Secondary Evidence and Lack of Primary Evidence:
The AO contended that the assessee provided only secondary evidence without producing relevant parties. The CIT(A) and Tribunal noted that the assessee had submitted confirmations, bank statements, and stock reconciliation statements. The Tribunal followed the Bombay High Court's ruling in CIT v. Nikunj Eximp Enterprises (P.) Ltd., which held that non-appearance of suppliers alone could not disprove purchases.

4. Purchases Made Out of Undisclosed Income:
The AO argued that the purchases were made out of undisclosed income. The CIT(A) and Tribunal found that while the parties were untraceable, the purchases themselves were not entirely bogus. The Tribunal upheld the CIT(A)'s approach of estimating additional profit on such unverifiable purchases, citing judicial precedents that allowed only the profit element to be taxed in such cases.

5. Sustaining Addition Only to the Extent of 20% of Bogus Purchases:
The CIT(A) restricted the addition to 20% of the bogus purchases, amounting to ?4,08,049/-. The Tribunal found no error in this approach, noting that it was consistent with judicial pronouncements in similar cases. The Tribunal upheld the CIT(A)'s decision, rejecting the revenue's contention that the entire purchases were bogus.

6. Excluding Interest Paid on Unsecured Loans from Work-in-Progress:
The AO excluded interest paid on unsecured loans from work-in-progress, treating the loans as unexplained cash credits under Section 68. The CIT(A) had previously deleted similar additions for AY 2009-10 after considering additional evidence. For the current year, the CIT(A) directed the AO to examine the claim in light of the findings for AY 2009-10. The Tribunal found no merit in the revenue's challenge, as the issue was recurring and had been settled in the assessee's favor for the previous year.

Conclusion:
The Tribunal dismissed the revenue's appeal, upholding the CIT(A)'s decisions on all issues. The Tribunal found that the CIT(A) had judiciously and correctly addressed the matters, and there was no basis for interference at the appellate stage. The appeal was pronounced dismissed in the open court on 15-02-2019.

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