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2017 (3) TMI 1036 - AT - Income TaxG.P. addition - purchase from hawala operators - bogus purchases - Held that - The purchases are made by the assessee and amounts are standing in the books of the assessee and onus is on the assessee to prove the genuineness of the purchase transaction. We have observed that the assessee could not produce these three parties except Bharat Forge despite being called by the AO . The notices issued u/s 133(6) of 1961 had returned un-served as these parties do not exist on the addresses given by them. The assessee could not produce stock register and also could not prove actual delivery of material being purchased from these hawala dealers as octroi receipts, goods receipt note, lorry receipts, purchase orders could not be produced nor invoices had any details of movement of goods to assessee from the alleged hawala dealers, however, the assessee did produced the sample copies of purchase invoices and also submitted that payments were made by account payee cheque. Under the factual matrix of the case , we have observed that the learned CIT(A) rightly held that profit embedded in these purchases are to be estimated wherein the learned CIT(A) estimated GP @ 17.5% on alleged bogus purchases as against 7.11% declared by the assessee. End of justice will be met in the instant case if GP is estimated to tune of 12.5% of the purchases from these alleged hawala operators which will cover any leakage of Revenue by way of VAT, commission etc. . Thus, as compared to the GP ratio at 7.11% declared by the assessee, we are estimating GP ratio at the rate of 12.5% on the said bogus purchases wherein the assessee will be allowed credit of declared GP ratio of 7.11% and net addition to GP ratio shall be to the tune of 5.39% on bogus purchases, hence , we allow partial relief to the assessee.We order accordingly.
Issues Involved:
1. Condonation of delay in filing the appeal. 2. Estimation of Gross Profit (GP) on purchases from specific parties. 3. Genuineness of purchases from certain parties suspected to be hawala operators. 4. Onus of proof on the assessee to establish the genuineness of transactions. 5. Application of judicial precedents and relevant case laws. Detailed Analysis: 1. Condonation of Delay in Filing the Appeal: The appeal was filed late by 54 days. The assessee submitted an affidavit explaining the delay due to the death of his father and family disturbances. The tribunal considered the reasons sufficient and genuine, condoning the delay in the interest of justice. The tribunal relied on the decision of the Hon’ble Supreme Court in the case of Collector, Land Acquisition v. Mst Katiji & Ors. (1987) 167 ITR 0471 (SC). 2. Estimation of Gross Profit (GP) on Purchases from Specific Parties: The CIT(A) estimated the GP at 17.5% on purchases from BPT Tube Corporation and National Sales Corporation, which were suspected to be hawala operators. The assessee had declared a GP of 7.5%. The CIT(A) reduced the declared GP from the estimated GP, resulting in a net addition of 10%. The tribunal, however, considered that estimating a GP of 12.5% would be more appropriate, allowing partial relief to the assessee by reducing the net addition to 5.39%. 3. Genuineness of Purchases from Certain Parties Suspected to be Hawala Operators: The AO issued notices under Section 133(6) to verify the genuineness of purchases, which were returned unserved for certain parties. The assessee could not produce these parties except Bharat Forge. The AO observed that these parties were suspected to be hawala operators, and the purchases were not genuine. The AO made additions based on peak calculation of purchases, treating them as unexplained expenditure under Section 69C. 4. Onus of Proof on the Assessee to Establish the Genuineness of Transactions: The assessee contended that payments were made by account payee cheques and submitted sample photocopies of purchase bills and ledger extracts. However, the assessee could not produce the stock register, transportation receipts, or other delivery documents to substantiate the actual receipt of goods. The CIT(A) held that the onus was on the assessee to prove the genuineness of the purchases, which was not satisfactorily discharged. 5. Application of Judicial Precedents and Relevant Case Laws: The CIT(A) referred to the decision of the Hon’ble Gujarat High Court in the case of CIT v. Simit Sheth (2013) 38 taxmann.com 385 (Guj), where the court upheld the addition of profit elements embedded in bogus purchases. The tribunal also referred to its own decision in Sh. Ashwin Purshottam Bajaj v. ITO, where a similar approach was taken. The tribunal affirmed the CIT(A)’s approach but adjusted the GP estimation to 12.5%, aligning with judicial precedents and ensuring a reasonable estimation of profits. Conclusion: The tribunal, while condoning the delay in filing the appeal, partly allowed the appeal by estimating the GP at 12.5% on the alleged bogus purchases, providing partial relief to the assessee. The tribunal upheld the principle that the profit element embedded in such purchases should be added to the income, consistent with judicial precedents. The onus was on the assessee to prove the genuineness of the transactions, which was not satisfactorily done, leading to the estimation of profits.
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