2019 (4) TMI 497 - AT - Income Tax

Taxability of Bogus purchase - Estimation of profit - AO alleged that Maharashtra Sales Tax Department, investigation proved that certain parties were involved in providing accommodation entries without actual business - notices issued to parties u/s. 133(6) were returned un-served - ex-party order - HELD THAT - on perusal of findings of the lower authorities where it was categorically observed that the assessee could able to file only purchase bill and payment proof for such purchases through proper banking channel. The assessee neither could controvert the findings of fact recorded by the lower authorities in the backdrop of clear finding of sales-tax authorities that those parties are involved in providing accommodation entries. The assessee was not able to file complete details as required by the AO except purchase bill and payment proof. Further, the assessee could not able to produce the parties in person before the AO for examination. Under these facts, it is difficult to accept the arguments of the assessee that purchases from the above parties are genuine which are supported by evidences. When the purchases are considered to be bogus and also when the assessee is not able to prove the purchases to the satisfaction of the AO, what needs to be taxed whether the total amount of alleged bogus purchases or only a profit element embedded on those purchases is a question of fact. The Courts and Tribunals in number of cases have come to the conclusion that in cases where purchases are not proved with necessary evidences, only profit element embedded on those purchases needs to be taxed. The Hon ble Gujarat High Court in the case of COMMISSIONER OF INCOME-TAX-I VERSUS SIMIT P SHETH 2013 (10) TMI 1028 - GUJARAT HIGH COURT has held that no uniform yardstick can be applied for estimation of profit and it depends upon facts of each case. The co-ordinate bench of ITAT, Mumbai Benches in several cases have taken a consistent view and directed the AO to estimate profit ranging from 5% to 12.5% depending upon facts of each case - AO to adopt a profit percentage of 12.5% on the alleged bogus purchases

Issues:
Condonation of delay in filing appeal, Addition of alleged bogus purchases, Principles of natural justice violation, Evidence from Sales Tax Department, Burden of proof on assessee, Failure to produce parties for verification, Disallowance of unverifiable purchases, Estimation of profit percentage on alleged bogus purchases.

Condonation of Delay:
The appeal was filed with a delay of one day, and the assessee sought condonation of the delay. The Tribunal, after considering the petition and being satisfied with the reasonable cause for the delay, condoned the delay, allowing the appeal to be heard on merits.

Addition of Alleged Bogus Purchases:
The Assessing Officer (AO) added purchases amounting to ?41,34,987 from four parties listed as hawala parties by the Sales Tax department. The assessee contended that the purchases were genuine and supported by bills, but failed to produce parties for verification. The Commissioner of Income Tax (Appeals) upheld the additions based on evidence from the Sales Tax Department, stating that the appellant did not discharge the onus to prove the genuineness of purchases. The CIT(A) rejected the appellant's arguments and confirmed the addition as bogus purchases, adding it to the total income.

Principles of Natural Justice Violation:
The appellant argued that making additions based on third-party evidence without confrontation violated principles of natural justice. However, the CIT(A) upheld the additions, emphasizing the evidentiary value of information received from the Sales Tax Department and the appellant's failure to prove the genuineness of purchases.

Evidence from Sales Tax Department:
The CIT(A) considered information from various enforcing agencies, including the Sales Tax Department, as having evidentiary value. The appellant's failure to produce hawala dealers for cross-verification and lack of counter-affidavit led to the confirmation of additions by the CIT(A).

Burden of Proof on Assessee:
The CIT(A) held that the appellant failed to discharge the onus of proving the genuineness and correctness of purchase transactions. The burden to prove genuine purchases lies with the assessee, and the failure to produce parties for verification and lack of corroborative evidence led to the confirmation of additions.

Failure to Produce Parties for Verification:
The appellant could not produce the hawala dealers for cross-examination or provide current addresses for verification. The absence of delivery challans, transport receipts, and quantitative details further weakened the appellant's case, leading to the confirmation of additions by the CIT(A).

Disallowance of Unverifiable Purchases:
The CIT(A) disallowed 100% of unverifiable purchases made from hawala/unverifiable dealers, citing various judicial precedents and the appellant's failure to establish purchases with corroborative evidence. The additions made by the AO were confirmed as bogus purchases and added to the total income.

Estimation of Profit Percentage on Alleged Bogus Purchases:
The Tribunal modified the order of the CIT(A) and directed the AO to adopt a profit percentage of 12.5% on the alleged bogus purchases for land development business. The appeal filed by the assessee was partly allowed based on this modification.

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