2019 (4) TMI 1106 - AT - Income Tax

Bogus purchases - assessee is aggrieved by confirmation of the additions to the tune of 12.5% of the alleged bogus purchases - estimation of profits embedded in purchases is to be done which involves estimation which should be fair and honest - HELD THAT - Keeping in view nature of goods / industry in which the assessee is dealing and keeping in view that goods involved are imported being purchased from grey market who had brought these goods in Indian market without payment of custom duties, it will be fair and reasonable to estimate profits embedded in these purchases to the tune of 25% (twenty five percentage) of the alleged purchases as income to be brought to tax over and above what was declared by the assessee in its books of accounts to cover advantage it got by way of inflated purchase prices due to buying from grey market, tax advantage by way of VAT/CST and custom duty saved on imported goods being bought from grey market who obviously brought goods in Indian territory without paying custom duties. The reliance on the assessee on other case laws to contend that addition of 2% is warranted lacks merit as each case is to be decided on its own merit keeping in view nature of product and circumstances surrounding the same.

Summary

Issues Involved:

1. Bogus purchases from hawala dealers.
2. Reopening of assessment under Section 147 of the Income-tax Act, 1961.
3. Treatment of unexplained expenditure under Section 69C of the Income-tax Act, 1961.
4. Estimation of profit on alleged bogus purchases.

Issue-wise Detailed Analysis:

1. Bogus Purchases from Hawala Dealers:
The primary issue revolves around the alleged bogus purchases made by the assessee from hawala dealers who were purportedly engaged in providing accommodation entries by issuing bogus bills without supplying any material. The assessee, engaged in the business of printing and related activities, had a turnover of ?5.08 crores with purchases amounting to ?3.79 crores. The Revenue reopened the case by invoking Section 147 and issued notices under Section 148. During reassessment, the AO issued notices under Section 133(6) to verify purchases exceeding ?5 lacs. Some notices returned unserved, and certain parties denied transactions with the assessee, claiming misuse of their TIN for issuing bogus bills. The AO concluded that purchases from Shah Enterprises, Yash Impex, and Jain Corporation were bogus, adding the amounts as unexplained expenditure under Section 69C.

2. Reopening of Assessment under Section 147:
The case was reopened by invoking Section 147 due to suspicions regarding the genuineness of purchases. The AO issued notices under Section 148, and the reassessment was conducted under Section 143(3) read with Section 147. The reasons for reopening were furnished to the assessee, and there was no dispute regarding the factual matrix between the parties.

3. Treatment of Unexplained Expenditure under Section 69C:
The AO treated the purchases from Shah Enterprises, Yash Impex, and Jain Corporation as bogus based on affidavits and statements from the proprietors of these entities, who admitted to issuing bogus bills without supplying any material. The AO added the amounts of ?28,60,676, ?41,34,364, and ?37,85,392 respectively as unexplained expenditure under Section 69C. The AO also noted that the modus operandi involved depositing cheques received from beneficiaries and returning them after retaining a commission.

4. Estimation of Profit on Alleged Bogus Purchases:
The CIT(A) confirmed additions to the tune of 12.5% of the alleged bogus purchases, observing that while the payments were made through banking channels and goods were sold, the parties remained unidentified and did not confirm the transactions. The CIT(A) noted that the assessee failed to produce the parties or their correct addresses, making the transactions suspicious. The Tribunal, considering the nature of goods and the industry, estimated the profits embedded in the alleged bogus purchases at 25% of the purchase amount. This estimation was deemed fair and reasonable to cover the advantages gained by the assessee through inflated purchase prices, VAT/CST benefits, and customs duty savings on imported goods bought from the grey market.

Conclusion:
The Tribunal dismissed the assessee's appeal for AY 2009-10 and partly allowed the Revenue's appeal, applying the same decision mutatis mutandis to the cross appeals for AY 2010-11. The Tribunal's order emphasized the need for a fair and honest estimation of profits embedded in bogus purchases, considering the specific circumstances and nature of the goods involved. The final order was pronounced on 13.02.2019.