2021 (5) TMI 375 - AT - Income Tax

Bogus purchases - AO has restricted the disallowance to the profit element embedded in such purchases by estimating the same at 12.5% - HELD THAT - Considering the fact that the assessee is a trader in ferrous and non ferrous metals, wherein, the profit margin normally expected to be earned varies between 2% to 5%, we are of the view that disallowance @5% of the alleged non genuine purchases would take care of suppression of profit, if any, on account of alleged non genuine purchases. Accordingly, we direct the assessing officer to restrict the disallowance to 5% of the alleged non genuine purchases in both the assessment years under appeal.

Summary

Issues involved:
Dispute over additions made on account of non genuine purchases for assessment years 2010-11 and 2011-12.

Analysis:
The appeals by the assessee were based on two separate orders dated 29-05-2019 by the Commissioner of Income-tax (Appeals)-4, Mumbai, for the assessment years 2010-11 and 2011-12. The core issue in both appeals revolved around additions made due to non genuine purchases. The assessee, engaged in trading ferrous and non ferrous metals, had filed returns initially processed under section 143(1) of the Act. The assessing officer, upon receiving information from the Sales-tax department, reopened the assessments under section 147 of the Act. The officer found purchases to be non genuine based on the selling dealer being identified as a hawala operator. Despite the assessee's attempts to prove the purchases' genuineness, the evidence provided was deemed unsatisfactory. Notices to selling dealers under secction 133(6) returned unserved, leading to the conclusion of non genuine purchases. Consequently, profit was estimated at 12.5% and added back to the assessments.

In the appeal, the assessee argued that the profit rates and VAT paid indicated no further disallowance was warranted. They presented purchase bills, bank statements, and other evidence to establish purchase genuineness. The assessing officer's reliance on information from the Sales-tax department was contested, highlighting the lack of adverse material disclosure to the assessee. The counsel also argued that the 12.5% disallowance was excessive given the business nature and profit ratio. The Departmental Representative supported the assessing officer and the Commissioner (Appeals).

Upon review, the Tribunal acknowledged the Sales-tax department's information but noted the failure to verify purchases' authenticity due to unserved notices to selling dealers. While the assessee's claim remained unproven, the fact that corresponding sales were made was undisputed. The Tribunal deemed a 5% disallowance fairer than the 12.5% estimate, considering the normal profit margin in the business. Therefore, the assessing officer was directed to restrict the disallowance to 5% of the alleged non genuine purchases for both assessment years. As a result, the appeals were partly allowed.

This judgment underscores the importance of verifying purchase authenticity, considering the nature of the business and fair profit margins. The Tribunal's decision to lower the disallowance percentage demonstrates a balanced approach to address potential profit suppression while ensuring fairness to the assessee.