2019 (11) TMI 143 - AT - Income Tax

Disallowance of bogus purchases @ 12.5% of bogus/hawala dealers/non-existent vendors - HELD THAT - AO has not disputed the sales of the assessee. AO solely relied upon the report of Investigation Wing of Sale Tax Department. CIT(A), the assessee urged that the purchases shown by assessee are genuine. The payments of purchases were made through account payee cheques. The goods were received by assessee and quantitative details and corresponding sales were shown to the AO. Though, the assessee fairly stated that they are unable to produce the supplier for verification. Also urged that the assessee has paid sale tax on behalf of the dealers and relied upon the decision of Hon ble Gujarat High Court in Simith P. Seth 2013 (10) TMI 1028 - GUJARAT HIGH COURT . CIT(A) after considering the material placed before him and the ratio of the decisions including the decision of Simith P. Seth (supra) concluded that it has been held by various Courts that where assessee could show that he has made purchases and there are corresponding sales against the purchases, in such circumstances, it is appropriate to tax the possible profit of such purchase from non-genuine parties. CIT(A) restricted the disallowance to 12.5% of the purchases. CIT(A) after considering the material and the various decision of superior courts arrived on a fair conclusion, which we affirm. Even otherwise the revenue authority is required to tax the profit earned by the assessee on such bogus purchases and not the entire transaction. - Decided against revenue.

Summary

Issues:
- Whether the CIT(A) was justified in restricting the disallowance of bogus purchases to the extent of 12.5% of bogus/hawala dealers/non-existent vendors.

Analysis:
1. The appellant, engaged in Trading in Hardware, filed its return of income for Assessment Year 2009-10, declaring total income of ?16,32,700. The assessment was re-opened under section 147 based on information from the Sale Tax Department regarding hawala operators providing accommodation bills without actual delivery of goods. The Assessing Officer noted purchases of ?2,76,275 from a party listed as a hawala dealer, leading to re-assessment under section 147.

2. The Assessing Officer, after issuing notices and considering reports, disallowed the entire purchases made from the hawala dealer in the assessment order. On appeal, the CIT(A) restricted the addition to 12.5%, citing the decision of the Hon'ble Gujarat High Court and the possibility of purchases from the grey market leading to tax savings. The revenue challenged this decision.

3. The revenue's representative supported the Assessing Officer's order, claiming the purchases were bogus and aimed at inflating profits. However, the Assessing Officer did not dispute the sales made by the assessee. The CIT(A) considered the material presented, including the payment details, and various court decisions, concluding that taxing the possible profit on such purchases was appropriate.

4. The Tribunal affirmed the CIT(A)'s decision, noting the lack of contrary evidence presented by the revenue. The Tribunal emphasized that taxing the profit earned on bogus purchases, rather than the entire transaction, was the correct approach. As no contrary decision was brought to their attention, the appeal of the revenue was dismissed.

5. For the Assessment Year 2010-11, the revenue raised identical grounds of appeal regarding alleged bogus purchases. Following the decision made for the previous year, the appeal for the current year was also dismissed with similar direction, resulting in the dismissal of the revenue's appeal for both assessment years.