2019 (12) TMI 766 - AT - Income Tax

Reopening of the assessment by issuance of notice u/s 148 - Bogus purchases - HELD THAT - In terms of quantity, the purchases and sales have not been disputed. Only thing disputed by the Revenue is part purchases from the alleged total sales were treated as bogus. It can be examined with a simple example. That the assessee has purchased material from party A ; obtain bills from party B . Since he has not able to prove the purchases from B , therefore, the purchases have been treated as bogus. In fact, the material was received by the assessee. If that thing has not been happened, then sales would not have been achieved. Therefore, in these circumstances, only extra element of profit involved in this modus operandi of purchases of goods from party A and obtaining bills from B is to be worked for treating the income of the assessee. The assessee has already shown gross profit at 7.25% and 7.14%. If extra profit at the rate of 6% is being estimated qua the alleged purchases of ₹ 59,09,015/- and ₹ 26,15,013/- in the AY 2009-10 and 2010-11, then ends of justice would meet. This 6% we have worked out on the basis of our past experience in dealing with such cases, wherein Hon ble Gujarat High Court has also upheld estimation of profit ranging between 5% to 20% depending on the nature of business and considering undue profit earned by an assessee.

Summary

Issues Involved:
1. Reopening of assessment under section 148 of the Income Tax Act, 1961.
2. Legitimacy of alleged bogus purchases from Hawala dealers.
3. Determination of appropriate profit margin and disallowance of purchases.

Issue-wise Detailed Analysis:

1. Reopening of Assessment under Section 148:
The assessee challenged the reopening of the assessment by issuance of notice under section 148 of the Income Tax Act, 1961. The reasons recorded by the Assessing Officer (AO) were based on information from the CIT-I, Ahmedabad, and the DGIT (Investigation), Ahmedabad, relating to Hawala dealers and beneficiaries of accommodation entries from the Maharashtra State Sales Tax department. The AO believed that the assessee had obtained entries of bogus purchases, thereby reducing the profit and causing income to escape assessment. The Tribunal noted that this ground was admitted as it was a legal and jurisdictional ground. However, upon review, the Tribunal found that the assessee did not press this ground, and thus, it was not admitted as not pressed.

2. Legitimacy of Alleged Bogus Purchases:
For the assessment year 2008-09, the AO confronted the assessee to show complete details of purchases. The assessee contended that the details of bills alleged to be from Hawala dealers should be supplied. The Tribunal found that the details provided by the Sales Tax Department pertained to the financial year 2008-09, relevant to the assessment year 2009-10, not 2008-09. The Tribunal held that it was the Revenue's responsibility to first prove the charge against the assessee with reliable evidence. Since there was no corroborative evidence apart from the details from the Sales Tax Department, the Tribunal concluded that the alleged bogus purchases could not be added to the total income for the assessment year 2008-09.

For the assessment year 2009-10, the assessee reiterated that the Sales Tax Department's details pertained to financial year 2008-09, and thus, should have been considered for the assessment year 2009-10. The Tribunal noted that the assessee did not produce any supporting documents before the AO or CIT(A) and failed to respond to notices. The Tribunal accepted the Department's evidence that bogus purchases were made for the assessment year 2009-10 and similarly for the assessment year 2010-11.

3. Determination of Appropriate Profit Margin and Disallowance of Purchases:
The assessee argued that only the element of profit involved in the alleged procurement of goods should be assessed, as the sales were identifiable and made to Vishal Mart. The Tribunal examined the gross profit declared by the assessee across different financial years and noted that disallowing the entire purchases would result in an impractically high profit margin. The Tribunal concluded that in such cases, only the extra element of profit involved in the modus operandi of purchasing goods from one party and obtaining bills from another should be considered. The Tribunal estimated an additional profit margin of 6% on the alleged bogus purchases for the assessment years 2009-10 and 2010-11, based on past experience and similar cases upheld by the Hon’ble Gujarat High Court.

Conclusion:
The Tribunal allowed the appeals of the assessee partly, deleting the addition for the assessment year 2008-09 and estimating an additional profit margin of 6% on the alleged bogus purchases for the assessment years 2009-10 and 2010-11. The order was pronounced on 9th December 2019 at Ahmedabad.